Law professor explains antiabortion legal argument arising from Alabama IVF decision
Harvard law professor Glenn Cohen wrote about the topic in the recent issue of JAMA
Antiabortion activists and leaders have long sought to establish fetal personhood as a manner to make abortions illegal under all circumstances.
It’s usually done indirectly, with the opposition using the example of a pregnant woman who is assaulted and who loses her pregnancy as a reason for why the perpetrator should be charged with manslaughter. The hope is to use that example as an indirect justification to end the right to abortion altogether eventually.
Personhood–or when legal protections begin–has always been the core question of the abortion debate. It again became a focus when Alabama’s Supreme Court ruled that embryos have the same legal protections as people after several prospective parents sued an IVF provider about the destruction of embryos they contended was a result of negligence. Harvard Law Professor Glenn Cohen spoke to me about the issue.
“That would make abortion now subject to kind of the same criminal penalties we have for killing adults or killing children,” Cohen said.
After the Dobbs decision, the antiabortion movement shifted its strategy. Now, its goal is to build precedent at the state level to eventually make the case before the U.S. Supreme Court that they should acknowledge fetal and embryonic personhood.
“They recognize that the more states and places start saying this, the easier it is to treat this as an idea that goes from off the wall to on the wall, if you will,” Cohen said. “And so this is part of that process.”
Cohen said the people in Alabama have little legal recourse on the IVF decision. The U.S. Supreme Court doesn’t typically review cases they think are on adequate and independent state grounds. The only thing they can do is go to the legislature. That’s precisely what they’ve done, but it may be insufficient protection.
“There might be other places where the holding of the state Supreme Court would still apply or certainly portends future decisions in this direction,” Cohen said.
Congress could do something to protect IVF treatments. Sen. Tammy Duckworth introduced a bill establishing a federal right to IVF treatments. Senate Republicans rejected it for a vote. In his State of the Union address, President Joe Biden called on representatives and senators to create federal protections for the procedure.
“It didn't go anywhere,” Cohen said. “And I don't know whether it will go anywhere in the future. I think it will depend on whether there the Democrats who can make a case that there's a credible threat to IVF coming from another place now that Alabama has tried to tie the knot quickly on the issue.”