The Little-Remembered Supreme Court Precedent That Could Protect IVF -- and Abortion [View all]

https://www.politico.com/news/magazine/2024/03/27/1923-supreme-court-decision-ivf-abortion-00149194

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. 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 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 already has an embryo destruction ban, and more states are considering them.

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.

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