[[link removed]]

THE LITTLE-REMEMBERED SUPREME COURT PRECEDENT THAT COULD PROTECT IVF
— AND ABORTION  
[[link removed]]


 

Kimberly Wehle
March 27, 2024
Politico
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ A half-century before Roe v. Wade, the Supreme Court ruled that
family life is off limits from government interference. Could that
case provide a way to protect both IVF and abortion? _

The justices of the U.S. Supreme Court in 1923. In a 1923 case, the
court ruled that “substantive due process" precludes states from
interfering in certain categories of decisions that belong to families
and parents., Library of Congress

 

Last month, the Alabama Supreme Court stunned the nation by holding
that extrauterine embryos frozen for in vitro fertilization procedures
are “embryonic children.” The court’s theory is that life begins
at fertilization regardless of where conception occurred or whether
the “child” is located in a cryogenic tube or a human uterus. By
that logic, IVF clinics could be liable for the destruction of frozen
embryos under the state’s Wrongful Death of a Minor Act.

The Alabama ruling set off a firestorm of conservative backtracking on
the ruling, which was the inevitable fallout of the U.S. Supreme
Court’s reversal of abortion rights in _Dobbs v. Jackson Women’s
Health Organization_
[[link removed]]. The
reasons for this reaction run deep: The Alabama ruling pits the
conservative ideal of promoting the traditional family unit against
the ideology of protecting unborn human life at conception
irrespective of the pregnant mother’s competing interests.

The Alabama Legislature
[[link removed]] passed
a law to restore access to IVF two weeks later. But
because _Dobbs _muddied the waters on whether a fetus is entitled to
the same protections as a human adult or born child, the underlying
controversies will continue to percolate. Louisiana
[[link removed]] already
has an embryo destruction ban, and more states are considering them
[[link removed]].

If a challenge were to make its way to the U.S. Supreme Court, a
little-remembered case from the early 20th century could prove
consequential to both sides. In fact, if harnessed by proponents of
abortion rights, the case would provide a precedent that could shift
the terms of the IVF-versus-abortion debate away from the line of
reasoning enshrined in _Roe v. Wade_ to a new one that carves out
family life as existing beyond the reach of government interference.

Most people view _Roe _as based on a case called _Griswold v.
Connecticut_ [[link removed]], in which the
Supreme Court struck down a Connecticut law making it illegal for
married couples to use contraceptives. Writing for a 7-2 majority
in _Griswold_, Justice William O. Douglas famously identified the
Constitution as guaranteeing a general right to privacy derived from
“penumbras,” or zones of constitutional protection extracted from
various provisions of the Bill of Rights, including the First, Third,
Fourth and Ninth Amendments. _Griswold_’s ethereal penumbras gave
rise to unrelenting attacks on _Roe _as a legal outlier built on
sand. For instance, in a dissenting opinion in _June Medical
Services, LLC v. Russo_
[[link removed]], in which a
Supreme Court majority declared Louisiana’s hospital-admission
requirements for abortion clinics unconstitutional, Justice Clarence
Thomas complained that _Roe_ “created the right to abortion out of
whole cloth, without a shred of support from the Constitution’s
text.”

That’s never been true.

The line of reasoning in_ Roe_ actually stemmed from something much
older than _Griswold _— a concept called “substantive due
process” that traces back to a line of cases that includes the
little-remembered _Meyer v. Nebraska_. In _Meyer_, the Supreme Court
ruled in 1923 that “substantive due process,” which later gave
rise to constitutionally protected reproductive rights, precludes
states from interfering in certain categories of decisions that belong
to families and parents.

The state law at issue prohibited the teaching of a foreign language
to children. A Nebraska statute passed in reaction to World War I made
it a crime to teach in any school, public or private, in a language
other than English to students through the eighth grade. (“ Latin,
Greek, and Hebrew [were] not proscribed; but German, French, Spanish,
Italian, and every other alien speech [were] within the ban.
[[link removed]]”) A man was found
guilty of teaching German to a 10-year-old in a parochial school
maintained by the Zion Evangelical Lutheran Congregation, and
challenged his conviction on the grounds that the law was
unconstitutional. The lower court upheld the Nebraska statute,
explaining that “[t]he legislature had seen the baneful effects of
permitting foreigners, who had taken residence in this country, to
rear and educate their children in the language of their native
land.”

The Supreme Court reversed, reasoning that although the Fourteenth
Amendment’s Due Process Clause ostensibly mandates only that the
government follow certain _procedures_ before depriving individuals
of life, liberty or property (such as a jury trial in criminal cases),
the concept of “liberty thus guaranteed” is broader, and includes
certain spheres of life in which the government cannot intrude _at
all _— even if it follows procedural steps first. The high court
went on to list the areas of family life that are protected from
government intrusion altogether: “Without doubt, [liberty] denotes
not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, [and to] establish a home
and bring up children.” As part of the teacher’s constitutional
right to choose an occupation without government intrusion, therefore,
“his right thus to teach and the right of parents to engage him so
to instruct their children, we think, are within the liberty of the
Amendment.”

_Meyer_ accordingly constructed a narrow list of matters that are
constitutionally off-limits for government regulation, even by state
legislatures, including the ability to establish a home and bring up
children. Based on the Republican response to the Alabama ruling, it
appears that the zone of personal family life, which would include IVF
decisions, is one that conservatives still want to see protected. Sen.
Tommy Tuberville (R-Ala), for example, called the Alabama ruling “an
attack on families stacked with kids,” adding that, “We need more
kids.” Georgia Gov. Brian Kemp, also a Republican, asserted that
many families “wouldn’t have children if it weren’t for that.”
House Speaker Mike Johnson (R-La.) called IVF
[[link removed]] “something
that we’ve got to grapple with” despite his longstanding dogma
that life begins “from the moment of fertilization.” Even former
President Donald Trump posted on his Truth Social platform
[[link removed]] that,
“We want to make it easier for mothers and fathers to have babies,
not harder!”

In _Dobbs_, the majority rebuked the very notion that substantive due
process protects a right to abortion. “The Constitution makes no
reference to abortion,” Justice Samuel Alito wrote in _Dobbs,_ so
it’s ultimately up to state legislatures to decide whether an
unenumerated right exists at all under state law. So long as the state
has a “rational basis” to regulate abortion, which for the Court
would include “respect for and preservation of prenatal life at all
stages of development,” abortion bans are constitutional. Taken at
face value, that same rationale would justify a state legislature’s
decision to impose barriers to IVF.

Much like Alito in _Dobbs_, the Alabama Supreme Court took a
textualist approach to that state’s wrongful death statute, relying
on dictionary definitions and contemporary understandings when the law
was enacted in 1872. If life begins at conception, it reasoned, the
fetus must be protected by the government, even if that means
forbidding destruction of embryos created for IVF use. (The defendant
IVF clinics argued that an embryo or fetus ceases to qualify as a
“child” if it isn’t contained within a biological womb, while
the parents urged that ruling against them would deny a civil remedy
against individuals who “kill” an unborn child after it leaves the
uterus but before full delivery from the birth canal.) And the state
cannot be constitutionally forced, Alito wrote in _Dobbs_, “to
regard a fetus lacking even the most basic human right — to live.”
If the Court were asked to weigh a state’s interest in restricting
IVF against the fetal “right to live,” it would be hard-pressed to
flunk the state’s law under _Dobbs_’ rational basis test. The
Court would have to grope for another way to enshrine IVF access in
the Constitution.

Yet like abortion and contraception, other family-oriented rights —
such as the right to “acquire useful knowledge,” to choose whom to
marry (including for heterosexual couples of the same race), and to
decide how to raise your own children within the confines of your home
— are _not _expressly articulated in the Constitution under the
reasoning of _Dobbs_. So what happens if states, or their courts,
take actions that interfere with such illusory rights that Americans
take wholly for granted? In the wake of _Dobbs_, the Constitution’s
silence presents a problem for people seeking to keep government out
of those decisions.

The answer could lie with _Meyer_, which considered the ability to
raise a family a fundamental constitutional right as a matter of
substantive due process. Alabama’s IVF decision blew up
the _Dobbs _majority’s cavalier approach to family planning. The
problem with _Roe _stemmed in part from its legal and political
framing of reproductive rights as about women’s right to abortion.

But _Roe _was about more than a right to abortion — it was also
about keeping the government out of personal family life. The core
principle behind _Roe _— that government can’t tell people how
to manage their family decisions, including whether to have kids, when
to have them, how to educate them, how to decide on medical needs, and
how to provide for them in terms of work-life preference and balance
— is one that both sides of the debate seem to embrace, and it’s
the one at the heart of _Meyer_. Once the debate is framed that way,
based on the older rationale underpinning _Griswold _and _Roe_,
conservatives must get behind the liberty interests that are truly at
stake when the government decides to tell couples they must — or
can’t — have a child.

_KIMBERLY WEHLE is a professor of law at the University of Baltimore.
Her article, The Ninth Amendment Post-Dobbs: Could Federalism Swallow
Unenumerated Rights?, appears in the Maryland Law Review
[[link removed]]._

_POLITICO is the global authority on the intersection of politics,
policy, and power. It is the most robust news operation and
information service in the world specializing in politics and policy,
which informs the most influential audience in the world with insight,
edge, and authority. Founded in 2007, POLITICO has grown to a team of
700 working across North America, more than half of whom are editorial
staff._

* Supreme Court
[[link removed]]
* abortion
[[link removed]]
* Roe v. Wade
[[link removed]]
* Samuel Alito
[[link removed]]
* IVF
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]