Thursday, May 19, 2022

In Vitro Fertilization and Dobbs

by Sherry F. Colb

As readers know, I have spent the last few weeks identifying the many ugly features of Justice Alito's (SA's) draft opinion in Dobbs v. Jackson Women’s Health Org, and there is much left to identify. But I want to turn in this post to a topic that has not received much airtime either in the Dobbs opinion or among those worried about the impact of the decision approving laws that force women to remain pregnant and give birth against their will. That topic is in vitro fertilization. The Court seemed to ignore it, and with some notable exceptions (like Senator Tammy Duckworth), public debate has mostly focused on other issues.

Yet the decision in Dobbs virtually guarantees the government's authority to prohibit IVF.  After explaining why I draw that inference, I will offer my account of why neither SA nor the rest of the Court is interested in enabling those who would prohibit IVF.

The Holding in Dobbs Logically Reaches IVF

The primary thing we can say about Dobbs and IVF is that the draft opinion  allows the passage of laws prohibiting most IVF fertlity treatments. In other words, unlike same-sex marriage and contraception, IVF prohibitions would not require another case in the Supreme Court because the Dobbs draft entails permission for such a prohibition. Though the other precedents are surely in jeopardy, and the logic of the Dobbs opinion places them in that jeopardy, there is nothing about the opinion that requires more before IVF can go on the chopping block. And yet despite the concerns voiced by Senator Duckworth and others, I suspect that IVF will remain legal.

But first, let's see why the Dobbs draft as written permits IVF bans. Recall that SA said virtually nothing in his draft opinion to acknowledge the competing interests in the abortion context. He simply took notice of the fact that many people "believe" that at conception, there exists an innocent "human being" with a right to life. Because SA applied rational basis scrutiny, he did not say why some people might oppose the governmental prerogative to force women to remain pregnant and to give birth against their will. We therefore, in Dobbs, have a very clean statement of why governments may prohibit all abortion at will: it is because some people consider a one-celled organism with human DNA to be an innocent being entitled to protection. (Stay tuned for when SA makes this "belief" the law of the land, concluding--one hopes in dissent--that allowing abortion is itself a deprivation of life without due process or perhaps in violation of equal protection).

Now consider what IVF involves. Typically, a fertility doctor will give the patient who hopes to become pregnant injections that stimulate her ovaries to produce numerous mature eggs. If the patient is lucky, she  will produce a total of five, six, or even seven. Then the doctor usually asks the person carrying around sperm to supply that sperm, and the doctor cleans the sperm in a centrifuge and then unites them with the five, six, or seven eggs. In the next days, the doctor learns how many fertilizations took place, and they can amount to more than the number of fertilized eggs because of twinning and tripleting. At that point, the doctor allows the fertilized eggs to divide a bunch of times to become a pre-embryo or a blastula. The doctor then inserts some of the pre-embryos into the woman's uterus, and everyone waits to find out whether the pregnancy "took."

So where is the abortion connection? The connection is that doctors are intentionally creating more embryos than will be inserted into the patient, with the goal of maximizing the odds of a successful pregnancy. Some of the embryos will be dividing faster than others, and the doctor will want to choose those hearty ones. If a pregnancy results, the various embryos that the doctor will not be using might go into a freezer. But it is typically up to the "parents" to decide whether they want to keep the embryos going or whether they want them thrown out. In some cases, the couple doing IVF separate or divorce, and one or both of the parties no longer want a child who came from the two of them to exist in the world. Disposal is an option, and the doctor does not have the choice to keep the embryos going and give them to an "adoptive" couple. A branch of medicine that so regularly involves discarding embryos to which the doctors have deliberately given rise means that these doctors kill entities that "some people believe" are already babies. SA's opinion specifically says that because some people believe that fertilized eggs, single cell organisms, are "innocent human beings," it follows that a State or the federal government could prohibit the intentional killing of these creatures by discarding them.

There are, to be sure, ways to conduct IVF without killing any embryos. The doctor can try to fertilize only one egg at a time and insert that egg into the patient. In that way, each egg remains an egg cell (rather than the "full person" that it would be if a sperm cell came along and entered it). Doctors generally avoid this approach because it reduces the odds that the patient will become pregnant. Maximizing the number of fertilized eggs, in other words, is a good way to increase the odds of pregnancy in someone who may have health problems related to fertility. The main reason a doctor might choose this other method is if the doctor himself or herself views fertilized eggs as little people whose killings are wrong, and most doctors do not hold this view.

So why, in the wake of SA's shocking draft opinion approving of forced pregnancy, am I fairly confident that IVF will remain legal? And entailed in that question is another one: why does SA not say something about IVF, given that the logic of his decision necessarily implies that governments may, if they want, prohibit the main practice of fertility medicine?

No one can know for sure what is going on, but here is my take. SA did not mention IVF because he does not care to oppose IVF. If someone pointed out to him that IVF involves the disposal of the little people he worried about in Dobbs, I expect he would at least be tempted to say "whatever." Why is that? Because, despite the stupid holdings in Geduldig v. Aiello and Bray v. Alexandria Women's Health Clinic that he cites, the singleminded commitment to forcing women to remain pregnant against their will is in fact a misogynist impulse, one that is grounded in a family of religions that treat labor pain as a punishment for disobeying God's command not to eat from the Tree of Knowledge. SA, under this approach, wants to enable people to force women to remain pregnant and to give birth, and that is a feature of his "pro-life" philosophy, not a bug. Then when IVF comes along, he sees before him a couple trying to have a baby in a manner that people he knows and respects have used. The desire to become pregnant in this way does not trigger SA, so he has no reason to mention it. 

IVF is likely to remain legal even though the logic of Dobbs extends perfectly to IVF because the misogyny that drove SA to write his draft opinion does not seem to respond to the regular practice of IVF. I am not sure that SA would explicitly say IVF is protected (say, under the substantive due process right to procreate), but he is not eager to take IVF away from people seeking a pregnancy. He likes to see that pursuit of reproduction.

If I am correct in my assessment, then what really animates Dobbs is not the logic of single-celled organisms as "innocent human beings," since the same characterization would apply to IVF practice. The animating principle of the draft opinion is the desire to put women in their place, to allow government officials to inflict unwanted pregnancies on the women, and to draw a firm line between men and women in that way (including by saying nothing about the absence of a rape or incest exception).

For SA, women are soil where men can plant their seeds, and soil has no right to uproot the plants that start growing. People who seek IVF, by contrast, do not challenge the role of women in our society. IVF places women in a state of pregnancy, which is where SA wants them. The difference between the two issues (abortion and IVF) is thus the question whether women have the right to reject the role that SA believes nature has assigned to them. And because that is the point, no one need worry very much that SA will take pity on the little "innocent human beings" in a petri dish that end up in the garbage.