Monday, March 27, 2023
I. Glenn Cohen on "Reproductive Technologies and Embryo Destruction After Dobbs"
I. Glenn Cohen has posted an updated draft of the work Reproductive Technologies and Embryo Destruction After Dobbs on SSRN. This is a chapter contribution to a forthcoming book, edited by Geoffrey R. Stone and Lee Bolinger, titled Roe v. Dobbs: The Past, Present and Future of a Constitutional Right of Abortion (forthcoming 2023).
Upon the release of the Dobbs decision, indeed upon the leak of Justice Alito’s draft opinion, the public and legal academic conversation about the decision very quickly shifted to its implications for other rights closely connected to substantive due process. The dissenters and Justice Thomas saw a broad attack on all substantive due process rights, while Justice Alito's opinion attempts to argue that: “[w]hat sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’"
Only time will tell who correctly foresaw the shape of what is to come as to these constitutional rights. But as to reproductive technologies, specifically those that involve the destruction of embryos, I argue in this Chapter that the situation is more clear cut. If a state were to prohibit entirely the destruction of embryos, the exact language Justice Alito uses to distinguish abortion from other constitutional rights directly applies – embryo destruction just as much as abortion “destroys . . . ‘potential life’ and what” such a potential state law “regards as the life of an ‘unborn human being’.” For reproductive technologies, the caller is already in the house.
This chapter tries to answer three questions. First is a constitutional law question: It explains why post-Dobbs, it is hard to argue for a federal constitutional right to engage in IVF or other reproductive technologies involving embryo destruction.
Second, is a political question: are the states that prohibit abortion, in particular those that prohibit abortion from the very start of pregnancy, likely to adopt such measures that restrict embryo destruction as part of IVF? Here the chapter argues that the available polling and other data on public attitudes to IVF suggest that at least currently such measures are unlikely to be a priority or perhaps even supported in most states.
Third, and the bulk of the chapter, is a normative question: should those who seek to prohibit abortion also prohibit embryo destruction as part of IVF or other reproductive technology use? My answer will be “maybe,” that it will depend among other things on their theory of embryonic/fetal personhood and when it obtains. I conclude that some but not all of those who believe abortion should be restricted, as a normative matter, should also oppose embryo destruction and push for laws restricting it. Perhaps more surprisingly, some who oppose abortion restrictions should not oppose restrictions on embryo destruction, because restrictions on embryo destruction do not involve trumping women’s rights as to bodily autonomy in the same way.