Abortion and IVF post-Dobbs: LePage, Mayes, Etc.

Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call. Today, June 4th, 2024, we're delighted to host a discussion on abortion and IVF post-Dobbs, LePage, Mayes, et cetera. My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, as the Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, we'll keep the introduction of our guests today brief, but if you'd like to know more about any of our speakers, you can access their impressive full bios at fedsoc.org. Today we are fortunate to have with us as our moderator Jennie Lichter, who currently serves as Deputy General Counsel at the Catholic University of America and a senior legal fellow at the Religious Freedom Institute. She previously served in the White House as a deputy assistant to the president and deputy director of the White House Domestic Policy Council.

Prior to her White House Service, Ms. Lichter worked on policy issues and Federal judicial, including Supreme Court confirmation efforts in the Office of Legal Policy at US DOJ. She previously served as in-house counsel for the Archdiocese of Washington and an associate for Jones Day. Also relevant today's discussion, prior to law school, she was a research assistant in bioethics at a DC think tank. I'll leave it to her to introduce our panelists. A last note and then I'll get off your screens. If you have any questions, please submit them by the question and answer feature at the bottom of your Zoom screen so it'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today, Ms. Lichter, the floor is yours.

Jennie Bradley Lichter: Great. Thanks Chayila for the introduction and good afternoon everyone. Thanks for joining us. As Chayila said, I'm going to start by introducing our two terrific speakers, both leading experts on bioethics and the law, and then we'll introduce our program. Our first speaker will be O. Carter Snead. Carter is the Charles E. Rice Professor of Law at Notre Dame Law School, as well as the longtime director of Notre Dame's De Nicola Center for Ethics and Culture, and a concurrent professor of political science. Carter is the author of "What it Means to Be Human, the Case for the Body in Public Bioethics" published by Harvard University Press in 2020, which was named by the Wall Street Journal as one of the 10 best books of 2020 and by the New York Times as one of 10 books to understand the abortion debate in the United States. He has also written more than 70 Journal articles, book chapters, and essays.

Carter has provided advice on the legal and public policy dimensions of bioethics questions to officials in all three branches of the US government and in several intergovernmental fora. He has served as the US government's permanent observer to the Council of Europe's Steering Committee on bioethics and has been a member of UNESCO's International Bioethics Committee. In 2016, he was appointed to the Pontifical Academy for Life, the principal bioethics advisory body to Pope Francis. He is also an elected fellow of the Hasting Center, a leading bioethics research institute. Prior to joining the law faculty at Notre Dame, Carter served as General Counsel to President George W. Bush's President's Council on Bioethics and clerked for Judge Paul Kelly on the Tenth Circuit. Carter received his JD from Georgetown and his Bachelor of Arts from St. John's College in Annapolis.

Professor I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School, as well as a deputy dean of the law school and the longtime Faculty Director of Harvard's Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics. Glenn is the author of more than 200 articles and chapters, and his award-winning work has appeared in leading legal, medical, bioethics, scientific and public health journals. He's the author and editor of more than 20 books, is an editor-in-chief of the Journal of Law and the Biosciences and serves on the editorial board for the American Journal of Bioethics. Glenn has advised the US Vice President, discussed medical AI policy with members of the Korean Congress and lectured to conferences around the world. He has served on the Steering Committee for Ethics for the Canadian Institutes of Health Research and the Ethics Committee for ACOG, the American College of Obstetricians and Gynecologists. He's also served on the bioethics advisory groups for several life sciences companies and Glenn, like Carter, is a fellow at the Hastings Center. Prior to becoming a professor, he was a law clerk to Judge Michael Boudin on the First Circuit and a lawyer for the appellate staff at the DOJ.

I'll also add for anyone who's very interested in the topics we're going to be talking about today, that Glenn has created a free online Harvard X class on bioethics and specifically on the law, medicine and ethics of reproductive technologies. Needless to say, you might not believe it, but those were very condensed versions of their bios. Our panelists today are both extremely eminent in their field and specifically in the field we're going to be discussing so we couldn't be in better hands as we dive into a complex and sensitive subject today. As Chayila said, we're here to discuss the legal policy and cultural landscape in the wake of the Alabama Supreme Court's LePage decision and other recent activities surrounding IVF and abortion. I am going to take just a few minutes to set the stage by briefly recapping the LePage decision so that our panelists don't have to do that, and then I will step aside and we'll hear from Carter and Glenn.

Back in February, the Alabama Supreme Court decided LePage v. Center for Reproductive Medicine. This case was brought by James and Emily LePage and two other couples against the fertility clinic where they'd all undergone IVF treatments. The plaintiff couples were able to have children using some of the embryos created through their treatments, and they had contracted with the clinic for their remaining embryos to remain in the center's cryogenic nursery, which was in the same building as a local hospital. I'm going to read from the decision's recounting of what happened next. Quote: "In December, 2020, a patient at the hospital managed to wander into the center's fertility clinic through an unsecured doorway" If you are a lawyer or a law student, your negligence radar should be starting to go off right about now. "The patient then entered the cryogenic nursery and removed several embryos.

The subzero temperatures at which the embryos had been stored freeze-burned the patient's hand causing the patient to drop the embryos on the killing them. The parents of the deceased embryos sued the clinic and the hospital. They brought claims under Alabama's Wrongful Death of a Minor Act as well as common law claims of negligence and wantonness." The action in this case, the legal analysis by the court in many separate opinions was really about whether the Wrongful Death of a Minor statute, again, an Alabama state statute, applied to what the court terms "extrauterine children", and the majority concludes that the text of that statute is "sweeping and unqualified. It applies to all children born and unborn without limitation and regardless of their location." In other words, these parents do have a statutory claim against the fertility clinic and the hospital for the destruction of their cryogenically frozen embryos.

Within days of the decision, several IVF providers in Alabama, including the clinic at the heart of the case where the accident had occurred, announced that they would suspend fertility services. The Alabama legislature began scrambling to respond and on March 6th, not even three weeks after the decision was released, the legislature passed and Governor Kay Ivey immediately signed legislation that gives individuals and entities working in the IVF industry blanket immunity, civil and criminal immunity for the death of or damage to an embryo. So there is a lot to talk about here, including whether the Alabama Supreme Court reached the right outcome and much broader questions about the regulation of the fertility industry, the legal status of the embryo in an ex utero perhaps, and the connection between this decision and Dobbs or lack thereof. So we will get to it. Our panelists will each give opening remarks. Then I will ask a handful of follow-up questions, and then we're looking forward to taking some questions from viewers. So please be getting your questions ready. Carter, please go ahead.

Prof. O. Carter Snead: Thank you very much Jennie, and I'd like to thank the FedSoc for convening this, and it's a real treat for me to be able to have conversations with my friend Glenn Cohen, who is I think one of the most interesting and thoughtful commentators and legal scholars in this area. So it's just personally a treat for me to be able to have a conversation with my friend Glenn. Before delving into the legal and policy dimensions of what we're talking about, I'd like to just briefly acknowledge the deep human goods at stake in this issue, which we can pass over quickly, as lawyers and law professors, we can immediately jump to the legal standards or questions or regulatory schemes, but it's important when we're talking about matters, touching or concerning conception and birth of children to acknowledge first of all, these are real, deep questions that affect people in very profound ways.

There's first, the deeply felt desire and need to form a family to have children to love and care for. There's the unspeakable pain and despair of infertility, feeling like your body has betrayed you in preventing you from becoming the thing that you most want to and are made to be, as well as the consequent vulnerability that arises from this context, vulnerability that applies and exerts pressure on everyone involved, parents, children, and even practitioners. So I just wanted to start by acknowledging that and saying this is something very serious to a lot of people, and I don't want anything that I say in this conversation to be construed as not taking that on board or thinking deeply about that or caring seriously about that. We find ourselves - and one other thing that I'll say, I think it'll be important in our conversation to disentangle the legal and doctrinal and even ethical questions around the issues of abortion and in vitro fertilization, which are obviously connected to each other in some basic ways, but are I think more importantly distinguishable.

And that has consequences for our ethical conversation as well as the law and policy dimensions of our talk. So we find ourselves in kind of an unusual political moment where public officials, especially Republicans, are rushing to endorse and embrace and extend really unprecedented legal privileges and immunities to in vitro fertilization and its practice and the industry behind it. And I think I understand the political motivation behind that. That's beyond my expertise - I think I understand what's going on politically - but what I'd like to do is to focus a little bit on the complexity of the regulatory and cultural and ethical and social questions. When you start asking questions about IVF and its regulation, you're opening a very large and complicated world, and my unsolicited advice for folks on all sides of the aisle is we should, I think, slow down a little bit and have a wide-ranging conversation among people who disagree with each other on first order principles to figure out what the best way forward is for parents and children and families in this particular space.

Over 20 years ago, slightly more than 20 years ago, the President's Council on Bioethics of which I served as General Counsel - President George W. Bush's Council on Bioethics - issued a report called "Reproduction and Responsibility, the Regulation of New Technologies" that did a comprehensive deep dive on the regulatory, legal and ethical questions around not just IVF, but all manner of assisted reproductive technologies, especially as they come into contact with different kinds of genomic interventions like pre-implantation, genetic diagnosis and other interventions. And what the council found and what I, in my own work more recently have confirmed is that the regulatory landscape for IVF and ART as such is strikingly unregulated - very light in its regulation. Of course, the usual laws of medical malpractice apply, the civil and criminal laws apply, but there's very little regulation of in vitro fertilization and ART as such. Jennie alluded to one statute, we can talk about it in a little bit if we want to.

There have been some proposed bills just as recently as this week on Capitol Hill, and I just wanted to take a moment and focus on what the consequences are for the legal landscape as it currently sits, which I think will open up our conversation to some of the complexity around these issues and some of the issues that need to be addressed if we're going to be responsible in regulating IVF. And that doesn't even open the question of at what level of government should this happen? Should this be a federal thing, should it be a state question? I mean, obviously the states are usually the place of the regulation of the practice of medicine, but one of the findings of the council, and that again, I confirmed in my own work is that there are no - as a consequence of the current legal status quo - not only are there no meaningful legal limitations on ART as such, and I keep saying "as such" because there are generic general laws that apply in this context.

There aren't even robust longitudinal studies on the health and wellbeing of mothers and babies who were conceived with the aid of some of these techniques. This was a very significant concern of patients' rights groups that spoke to us at the council in 2004, even though they obviously supported robust access to IVF, they were deeply concerned that there weren't federally-funded studies, and that was one of the recommendations that the council made. And by the way, the recommendations of the council were unanimous, even though the council was composed of people with deep disagreements about fundamental things including the moral status of the embryo. So there are real health risks associated with IVF that should at least be studied, which isn't to say we should stop it or shut it down or anything like that, but of course there's risks of ovarian hyperstimulation with respect to hyperstimulation of the ovaries of women who undergo IVF.

There is a very significant increase in the risk of preterm births associated with IVF that are largely driven by multiple gestations, which impose their own risks on women who carry those multiple pregnancies. But again, and then there are of course adjunct techniques like intracytoplasmic sperm injection, which was sort of discovered by accident in the early 1990s, preimplantation genetic diagnosis where a pretty significant portion of the cell mass of the in vitro embryo is removed for analysis for things like chromosomal abnormalities or genetic abnormalities. And the question of the ultimate effects on the health and wellbeing of those children is not well studied. There are studies that suggest that there is an increase in the rate of - sponsored by the CDC - of birth defects and things like autism and other kinds of maladies. Again, you have to be responsible. It's not clear that the cause of these are the in vitro fertilization techniques or the underlying pathologies that cause the infertility, and that's a deep question that we need to disentangle.

But these are problems that have been just basic health and safety questions that have not really been studied adequately in the name of serving the patients that undergo these techniques. But also there's an interesting array of interventions that are not medical in their nature that are commonplace in this space. For example, embryo screening for sex selection has become a common feature of IVF practice even for non-medical purposes for what is sometimes euphemistically described as "family balancing" - sex selection or selecting for a boy or a girl based on the preferences of the family involved, and 73% of clinics in the United States offer this testing. Pre-implantation genetic diagnosis is used for nonmedical traits such as hair color, eye color, and skin tone. And even more dramatically, there are companies that go beyond testing for single gene mutations and develop what are called polygenic risk scores, and it was reported in the Guardian newspaper that one such California company offers polygenic risk scores relating to IQ for low IQ, and they predict - now, it's hard to tell whether this is PR or if this is a reasonable prediction, that in five to 10 years they'll be able to predict IQ for higher IQ within about a 10 point range.

And even if they can't do it reliably, I guarantee you there'll be a very significant market for that intervention. And then there are other for-profit enterprises like California Conceptions, which procures sperm and egg usually from a single donor and creates batches of embryos that they then sell to patients for a lesser cost than the conventional IVF. Women are frequently solicited for the sale, especially college aged women from elite institutions are solicited for sales for their ova. So commercialization and commodification is a significant concern here. And not to mention the fact that there are by some reports a million embryos - living human embryos - in cryostorage in the United States, which have very uncertain futures. All of this is perfectly legal and essentially unregulated because the usual laws, and it's complicated as to why that is, and I can explain it if you like, but this absence of specific regulation strikes a lot of people as unusual, especially our friends in other countries as unusual to other countries that have much more robust regulatory schemes for the regulation of this particular branch of medicine because it's the only branch of medicine that I know of that the cure is the creation of a new human being, a human child that has his or her own interests and concerns and need for protection.

So this, I think, ultimately here puts us in a space where we are - and it's difficult because we're very divided, especially in issues around abortion, and it's the height of the political season where people are not interested in actually governing, but more in politicking - but I think it's actually interesting to think back to what the President's Council did and to think about what areas of overlapping agreement there might be between people of goodwill who have fundamental disagreements on questions like abortion or embryo research to find ways to have a responsible and reasonable framework, even a hortatory framework for professional self-regulation in this space that takes account of these goods and concerns. And so I think this might be a good moment to reach across the aisle, and what I would caution against is rushing headlong into simply endorsing, embracing IVF and the IVF industry, which is as far as I can tell, not in any danger of being limited by law, IVF is available in every jurisdiction that I'm familiar with, legally available at least, and to really have a considered conversation about it, and so I'm appreciative again of the FedSoc, and of Glenn and of Jennie to be able to begin something like that conversation today.

Jennie Bradley Lichter: Great. All right, Glenn, over to you.

Prof. I. Glenn Cohen: I want to also thank FedSoc and thank Professor Snead. Often you say "my learned friend" as an advocate and you don't really mean it, in this instance, I really do mean "my learned friend." I've been a Carter fan for about 20 years, so I'm really excited to share the dais with him. So I want to focus on the question of how we should think about IVF in relation to abortion. Maybe we can get back to some of the good stuff Professor Snead talked about, which I think is also important too. And the punchline I want to tell you is you can't go from your views on abortion to your views on embryo destruction, and I want to explore why that's true. I'll just mention a couple things that we can come back to that I think are interesting, but I'm not going to focus on.

One is just polling. What does the American public think? It turns out the LePage decision was extremely unpopular and restrictions on IVF or embryo destruction at least are extremely unpopular. The politics, the rush to kind of embrace IVF, which was sort of interesting in the wake of the LePage decision, that has continued to some extent. We can talk more about that. And then international comparisons in that there are countries that limit the number of embryos created, right? They're not countries that I think that we often think of as unusual or strange - countries like Germany for example, has done this, Italy for a time has done this - but I want to focus again on this question about abortion and embryo destruction and how they interrelate. And I have a long version of this in a book that Jeff Stone and Lee Bollinger edited called "Roe v. Dobbs". I'll give you the short version.

And the short version is that if you are someone who considers yourself pro-life and subscribes to the pro-life premises, there's a way in which actually the current regulation in the United States is I think provocatively upside down in that I think it is easier to justify restrictions on the destruction of embryos than it is to justify restrictions on abortion. And yet we see the exact opposite patterns of people's kind of views of the matter, but also about the politics. Okay, so why do I say that? What do people who are pro-life believe? I think it's kind of - I don't want to clump everybody together, but I think there are two premises behind being pro-life. The first is that fetuses are persons and or get some of the rights of personhood from early on in their development, particularly are right against unviability. And the second premise is whatever interest the mother has in protecting her bodily integrity, protecting her reproductive autonomy, et cetera, does not outweigh her fetus's right of viability.

What do those two same premises mean if we substitute embryo for fetus in those premises? We'll start with the second premise. What makes the case for restricting embryo destruction easier as a moral matter than the case for restricting abortion is that bodily integrity is less relevant or in some instances irrelevant in the case of early embryos that have not yet been implanted. So when you prohibit abortion, that requires favoring the right of the fetus in viability over the right not to gestate of the woman - a bodily integrity right, a right to control one's body. There is no similar countervailing right to control one's body in this kind of sense in the case of embryo destruction. So prohibiting abortion directly restricts a right not to be a gestational parent, prohibiting embryo destruction does not.

To say that somebody has no interest against being restricted from destroying embryos - they have potential rights claims they can make, but it's a little harder to characterize those claims I think in standard libertarian kind of garb. And it may depend exactly on what the state policy is and questions about affordability I think enter the chat much more so than they do in the instances of abortion. Maybe we can talk about that. To be just a little bit more philosophical about it, there's a group of people - and some days, I think I'm one of them - who defend the abortion, right entirely on the second premise. So Judith Jarvis Thompson's "famous violinist" is the most notable version of this argument that when one removes though that idea of being forced to gestate, that argument for abortion drops away in the case of embryo destruction. Okay, so that's why I think the second premise actually favors restrictions on embryo destruction more than it favors restrictions on abortion.

But what about that first premise regarding personhood? Here I think it goes a little bit in the opposite direction. So again, we're asking ourselves what do we think about the personhood of early embryos instead of fetuses? Now, you could have a view that there's a distinction between the two - that fetuses are persons and embryos are not. I think it's true to say that many people on the pro-choice side have been wary of starting to discuss when personhood begins because they feel like it's been a little bit of a trap politically. But unfortunately, I think in thinking about what our policy ought to be as to embryo destruction and IVF, it's something we have to contend with. And unless you are someone who has a very unusual view, I think most people start with the perspective that a one day old infant is a person that deserves the law's protection, and then one is forced to answer the question, "Well, at what point did that protection set in or when did it get forceful enough such that it merits the law's protection?"

On some theories of personhood, there's a major distinction between a fetus and early embryos such that their moral status is different, and on some views there are not. But what I want to suggest to you is that working your way through this thicket is hard, and a lot of these views are pretty finicky in terms of why they think what they do. Okay, so lemme just say a little bit about the views about personhood. One such theory characterizes much of the reproductive science in the US and the UK. In the UK it's the Warnock report, and it essentially draws a sharp demarcation at the 14 day point, which advantageously was until recently a cutoff which there was very little reason to do research beyond that point, so it was something that scientists, I think found it much easier to live with. What is the reason why 14 days strikes some people as the right demarcation?

My own view is this is kind of an incompletely theorized agreement, and that actually there are overlapping arguments that people have kind of agreed to, but actually not one of these arguments necessarily everybody agrees to, but typically people make the case that there's clarity that an embryo proper is distinct from the membranes that nourish it at the 14 day mark. They also make the argument that that's the point where we see the formation of the primitive streak - that's the precursor to the nervous system - and the third argument that's sometimes made is this ends a period where pre-embryonic twinning is possible. That is before that point, a single embryo could become two up until 14 days, not past 14 days. Now, these are all true facts, but one has to push on the question about why these true facts are morally significant as a matter for policy.

And in particular, I've always found the argument about twinning a little strange to myself. If I suddenly imagined that we were all hit by gamma radiation like in the Marvel cinematic universe, and we all started to twin and you asked me, "Well, does that suddenly render the personhood up until that moment in question?", I wouldn't think so, right? So I think that this is an interesting conversation to have about what's magical about 14 days. Then there's another set of views that are sometimes called capacity X views that say there's a specific set of capacities or a particular capacity in particular that we associate with personhood. And you can have a view that's the actual attainment of this, that the entity in question at the moment at which it might be destroyed has to actually have this capacity. Whether it's the ability to feel pain, the ability to have forward-looking cognition, there are lots of candidate capacities, or you could have a potentiality view where because the potential human being will in the normal course of events grow into an actual one, that's a reason to give it the protections of personhood.

So one would have to then show that a fetus has the potential in the relevant sense that an embryo lacks or that a fetus has the actual attainment of the relevant capacity that the early embryo lacks. And you'd have to also answer questions about what does it mean in the normal course of events? What does it mean to become something rather than to produce something as part of a developmental pathway? So these are extremely difficult questions philosophically, they're also extremely difficult questions to get agreement on. But what I want to press for you is the idea that unless we've worked out our views on this, it's very hard to know what our views ought to be about embryo destruction. And this is hard work, but it's not the kind of work that the ordinary course of politics does or even the ordinary course of political discourse. So that's why I'm excited to be here to talk through these with somebody who does do this in a bread and butter sort of way with Professor Snead. And I think I'll stop there. We can talk more during the Q&A.

Jennie Bradley Lichter: Thank you both. This is great. There's a number of threads of the conversation that I'd love to circle back to, and again, would welcome the audience to start submitting questions through the Q&A function. Glenn, let's just kind of pick up where you left off and drill down a little bit more on the nexus of abortion and IVF in policy and in ethics. Can you talk a little bit about the phenomenon - I believe it's called selective reduction in IVF - and where that might fit into the landscape that you've just laid out?

Prof. I. Glenn Cohen: Yeah. Great. So as I mentioned, there are countries that have limited the number of embryos that are created. So this is not what the LePage decision did. Instead, it was - and to be fair to the court, it was engaging in statutory interpretation about what the Wrongful Death of a Minor Act means, right? So it wasn't asked to have a full throated design of a policy, but if you wanted to look for international comparisons, there are countries that limit the number of embryos by a strict number or say you can only produce as many as you intend to implant in a particular cycle, right? So this is often viewed as a potential intervention that might be something within the Overton window or where we could push the Overton window in this country. What's the problem with that? First, there are some categories of individuals whom this is just not going to work.

So people getting oncofertility treatment, for example, for cancer who are seeking to preserve their embryos going forward, not going to work for them, other people who are using sperm or egg donors who want to have genetically-related children and want to space out, not going to work for them. But the biggest problem for why it's not going to work for most people actually has to do with the cost function in the United States and the fact that actually many cycles of IVF and many cycles of transfer don't actually succeed. And therefore we're talking about a huge cost repeatedly - and not only financial costs, but also cost for women's health when we're engaging in ovarian stimulation and the like - to recover embryos seriatim and to fertilize them. And one thing you might be concerned with is that actually this would cause individuals to implant a much larger number of embryos at the front end, which increases the chance of multiple embryos, multiples, quadruplets, quintuplets, huge risks to the embryos and the fetuses.

Huge risks to the mothers. Nobody wants that. One solution we currently have in some states is selective reduction, which is a form of abortion essentially, that involves basically terminating some of the fetuses very early on. But of course, the same states that are thinking about restricting IVF are not so hot on that, and some of their existing laws do this. I'll say one more thing and then subside which is to say discursively, I think there is this disconnect in people's minds between IVF and abortion, and yet some instances of IVF do involve selective reduction, which is a form of abortion. So I think politically there's a stronger relation between these two things than in these practices are continuous. And even though the practices have different goals at the outset, they're all about women's reproductive rights and also about family building. Many people who get abortions are engaged in a family-building enterprise. This is just not the moment in which they intend to build those families.

Jennie Bradley Lichter: Thanks, Carter, do you want to say anything on this point?

Prof. O. Carter Snead: No, I would just add one thing that was interesting in the data is that there's an increase of what's called single embryo transfer. The techniques are becoming more and more refined to where, in fact, when I looked at it in 2020, something like 41% of IVF cycles in the United States involve single embryo transfer and some practices are doing what are called unstimulated IVF. Now different people with different kind of pathological conditions of infertility and age also is a factor, this is not as common, but it's an interesting fact from 2004 until 2020 and even more now, there is an increase in single embryo transfer in the United States just for clinical reasons and to avoid the problem of multiple gestations, and again, in some cases, to avoid the issues of ovarian hyperstimulation, which is in which a woman is chemically induced to mature multiple ovaries simultaneously to where you can harvest 10 eggs, even 20 eggs per cycle, which again, has non-trivial health risks for women.

But I think that's an interesting aspect in which the practice and the science is in some ways moving away from the problem of multiple gestations. And one other thing I'll just add briefly is when we studied the question back in 2004, what we found was that selective reduction, the process, the selective abortion, which is usually accomplished by injecting, inserting a needle and injecting potassium chloride or some other lethal agent into the heart of the closest fetus to the practitioner, actually in some cases doesn't decrease the risk of preterm birth. In fact, in some cases it might increase the risks of miscarriage, just as one other complexifying dimension of that particular technique.

Jennie Bradley Lichter: At what point in the pregnancy is selective reduction typically done?

Prof. O. Carter Snead: We found, at least when I last looked at it, it was around between 8 and 10 weeks. You have to have a sufficiently robust early-stage embryo/fetus to be able to inject the potassium chloride into the fetal heart, but not so far along that the remains of the deceased fetus aren't reabsorbed into the mother's body.

Jennie Bradley Lichter: Alright, thanks. Okay, so now let's circle back to something that Carter had raised in his opening, which is the sort of lack of federal regulation and federal legislative activity tackling IVF as such, I think is how you had put it, Carter, right? My understanding is there is one piece of existing federal legislation from about 30 years ago that bears directly on IVF. Do you want to talk a little bit about that bill? And then there is, as we speak, a new IVF bill sort of making its way through Congress sponsored, I believe by Alabama's own Senator Britt and Senator Cruz as well. So if you want to speak to that, feel free. And then Glenn, I'll ask you if you want to speak to either of those points too.

Prof. O. Carter Snead: Sure. Very briefly, the Fertility Clinic Success Rate and Certification Act of 1992 is the only dedicated federal statutory authority that speaks to the question of IVF. It has two dimensions to it, one of which it provides a model certification program for laboratories, which states are free to adopt if they want to. As far as I can tell, not a single state has ever adopted this model program. The more significant part of it is the success rate reporting element of the law, which requires IVF clinics to report certain kinds of data to the CDC. And it's then published in a report that's made public - not all the data that's obtained is reported. It's then formed into a report which is published online. And it was thought to be a kind of consumer protection law to provide information to prospective patients to get information that was really important to them and one thing that we found when we talked to patients rights groups - at least many of them in the early 2000s - was that they found this statute to be unhelpful. It was unhelpful in a variety of ways. One is because of the data it doesn't provide, it doesn't provide easily digestible information about adverse events, about instances of ovarian hyperstimulation syndrome - multiple gestations leading to complications for mothers or their babies. It doesn't say anything about costs at all, doesn't report on the cost, which is a very significant issue that looms large for patients. The data is framed in terms of cycles. The unit of measure for the instances is cycles, which is defined by the moment when you start an ovarian hyperstimulation protocol, which again, we found, and we talked to experts that said that that's a very manipulable unit of measure. You can cancel an IVF cycle and reclassify it as a failed stimulation.

And so you can inflate your success rate as one of these clinics. But the deepest problem is there are no meaningful penalties for non-compliance. There's no resources or interest, it seems to do real meaningful auditing. They farm out the auditing on a very small scale to the industry itself to report back to the CDC, and there's no consequence for not reporting or to reporting falsely other than being listed as not reporting in one of the appendices of the act. And one of the recommendations of the council was to improve this statute, to go back, and Ron Wyden - now Senator then Congressman - from Oregon was the chief sponsor of this bill to come back and say, why don't we at least provide the collect information that's important to patients, provide this information about adverse events, costs, the number of embryos that are created and cryo-stored, and what the fates of those embryos are, as well as to make it more understandable to a lay reader.

So I think I've described this as a very kind of toothless consumer protection law that doesn't really speak to the needs as articulated by the patient's rights communities themselves. And I think there's a lot of room for improvement in that context. As I said before, I think even doing a longitudinal study would be great. We recommended that at the council and there was even a big huge longitudinal study being put together, the national children's study, we met with the CDC, we met with the relevant folks and we encouraged them to build in a kind of IVF or ART dimension to it to track the moms and the babies and the families over 20 years of life and they declined to do that. So we don't really actually have good longitudinal information either. As far as the bill that was introduced, again, I think I understand politically what is motivating it.

I'm not going to comment on that, but I do think that it is, it basically just requires states to make IVF legal or it prohibits states - put a different way - from banning IVF within their jurisdictions, but then leaves it to the states, the regulatory apparatus that they wish to govern IVF within that broad stricture. And I mean, there are so many things that are unprecedented about this proposal. First of all, it's quite a thing for the federal government to intervene in this particular way to regulate the practice of medicine, which has traditionally been a state-level authority. But then secondly, I'm just trying to think ahead to what happens if this law passes. Well, you're certainly going to get lawsuits and maybe even the US Department of Justice - depending on whose administration it is - claiming that certain kinds of, and this gets us back to the question of abortion, certain kinds of laws protecting the unborn in the context of abortion amount to bans on IVF.

And that's going to be a very hard question, that's going to be litigated. That's a complicated question, and I think that's opening a kind of Pandora's Box for those who say, "Oh, don't worry. We love IVF, we are concerned about abortion. We're going to keep those separate" and I agree, they're analytically separate for all the reasons that Glenn pointed out in an eloquent and thoughtful way, but what's going to happen is when you have highly motivated advocates and litigants who are going to use whatever tools they have ready to hand to try to maximize access to abortion, this is going to be one of the tools in their toolbox. It seems to me they're going to claim that a ban on abortion at early stages of development amounts to a ban on IVF, they're going to focus on the selective reduction point. It's just going to be - and you already see this with laws that try to invest human beings from the moment of conception with legal personhood. It's claimed in the public square that those amount to bans, although I will say the state of Louisiana does precisely that. It describes IVF embryos as juridical persons, and there is IVF in Louisiana. There's some debate about how it's practiced and whether they ship the embryos out of state to be cryo-stored. I don't know if any, I've seen quotes to that effect. Actually, I've been looking at this for years and I still can't figure out how that law works with respect to the practice of IVF in Louisiana.

Jennie Bradley Lichter: Interesting. Glenn, before I turn to you for your reactions, let me just kind of squarely put on the table a great question from the audience that Carter has sort of just started poking at a little bit, but I think it's worth addressing directly because it's very astute, the questioner asks, okay, so abortion depends on the fetus not being recognized as a person under the Constitution, and the same is true for IVF says the commenter. So given that abortion and IVF depend on resisting constitutional personhood status, how would a federal right to IVF - explicit or maybe implicit - impact the federal personhood question, which so far hasn't been addressed directly by the Supreme Court?

Prof. I. Glenn Cohen: First of all, I think you'll get some disagreement on whether it has been addressed by the Supreme Court and when, right? So I'll park that over here for a second. So let me first respond to what Carter has said, then I'll go to the questioner which is to say, I think we're largely in agreement about the Wyden Act, that it's a good act would be better if it actually had more teeth, and that the consumer protection mold is kind of, I think an easy sell across the aisle. I do think this bill attributes - I'm fascinated, I learned about it this morning, this Britt and Cruz bill - there have been a bunch of bills floating around already to protect IVF, including that ones that were kind of re-upped in the wake of LePage, I'm kind interested in the politics of not signing onto those bills, but bringing this bill forward.

I tend to think one of the missing links here is really insurance coverage in that it's one thing to say you have a right to IVF, but in fact, and the change we saw with a move towards solo embryo transfer and away from multiple embryos is in part fostered by increased insurance coverage because it's extremely expensive to undergo IVF and go through multiple cycles. So I'd like to see more of that. There's current litigation regarding veterans, for example, and their access to IVF, would love to see more of that. When it comes to the general regulation of reproductive technologies in the United States, it is true that we have a fairly thin federal kind of regulatory system. I might asterisk it slightly if we go beyond IVF in that we have a congressional rider that prohibits the FDA from considering mitochondrial replacement techniques or in vitro gametogenesis. So we have some other stuff outside of IVF, but we've left much of the regulation to the states.

And we do see some robust differences, whether it is the permissibility of surrogacy and the enforceability of surrogacy agreements, whether it is whether anonymous sperm donation or egg donation is possible, Colorado is the first state in the United States to really take a strong position about that. And I find the politics here fascinating because we're in a current moment where actually many states in the abortion space - you look at mifepristone -are of the view that actually the centralization of the decision to permit this at FDA at the federal level is the problem. So it's interesting to think about, here's a space where we might want more federal and less state and less state's rights here. Now, just to return to the Q&A question, as to the question about the recognition of personhood, my own view, and again I'll say this, own this as me speaking as me, LePage is kind of a misfire in my view, in that there has been a long history, 10 years, more than 10 years before Dobbs of attempts to getting personhood initiatives on ballots, referendums, legal recognition. Typically more in the space of things like fetal homicide laws, also a little bit of embryo disposition.

And I view this now as having the place of building a bridge to the next fight in abortion, which would be constitutional recognition of the personhood of fetuses. So I think that is part of the strategy and it's part of a legal acculturation strategy of getting ideas from being off the wall to on the wall. Why I think it's a misfire is that it was sticking your neck out and then suddenly everybody seemed to dislike the LePage decision. It was very hard to find a politician in America to line up in front of it. And I think what it tells us is that Americans and the polling bears this out, have a very different attitude towards IVF and restrictions on IVF than they do on abortion. And the question is whether that is a malleable attitude with a more philosophical discussion or just more acculturation can change, or whether that's a really fixed point in space.

And so my own view is to say this is part of a strategy about getting constitutional recognition of personhood. If you ask me - I'm not a strategist for this side, but if I was the strategist for this side, I would say stay away from IVF and focus on fetuses, because that's just more politically palatable at the moment. And so I think that this is kind of a lesson of what not to do to some extent. I'll say one more thing, which is to say in some ways what's so interesting about LePage as the final state of play in Alabama is that actually the clinics are more protected than they were before the decision in terms of the immunity that they were offered. It's actually more robust. It doesn't just correct the decision in terms of a tort action in the case, but goes further. And I think to me, that's a bit of a cautionary tale about going in this direction.

Prof. O. Carter Snead: Can I say something just real quick? Glenn, wonderful remarks. First of all, I would gently suggest to the questioner, I don't think you need constitutional personhood for the unborn to have robust abortion laws. I mean, on the question of whether or not the word "person" in the 14th Amendment, for example, refers to unborn children, I mean, in the Dobbs case itself, we saw that the court took a kind of agnostic perspective on that and said in some ways it doesn't matter. What matters is whether the, what matters is what the status of the unborn is in the particular jurisdiction that's at issue. I mean, if you have a state that said like Alabama, or maybe not Alabama, but if you have a state like Indiana, for example, which protects life from conception, that doesn't require an acknowledgment by the federal government or the Supreme Court of the United States that the unborn child is a person within the meaning of the 14th Amendment.

It's simply as a matter of positive law and the positive law of Indiana, these are deemed to be protected as persons in Louisiana, you see them protected as juridical persons. So I don't see, I mean, I don't think it's a necessity for the declaration of constitutional personhood for the unborn to have a robust regime of abortion regulation and restriction in the United States. But one other thing I'll just say about the LePage case, which is interesting is that, and you mentioned this, Jenny, is the people who won the LePage case were the IVF patients themselves. They alleged to have suffered tortious mistreatment by this clinic. And if the facts are true, as they're stated, it sure does look like negligence that resulted in various serious and grievous losses to these families. And what the LePage court did was said, alright, we already have binding precedent that says the Wrongful Death Act applies to embryonic human beings from the moment of conception in utero, are we going to read, in an exception for ex utero embryos at the very stage of development?

And as Glenn said, as a matter of statutory interpretation, we could agree or disagree about whether that was a defensible interpretive move. They said, "Look, we think this is a distinction without a difference. We're going to say they're both protected under the law of Alabama for wrongful death purposes. They can both be victims." Under which the statutory scheme would sustain a wrongful death claim for those who are the statutorily designated survivors who are permitted to bring such a lawsuit. And so anyhow, it just strikes - but I agree with Glenn. I mean the PR around it was really bad. I mean, the PR around it that provoked this enormous public backlash. And Alabama - I'm from Alabama, and I can assure you that Alabama is a very conservative state, and they moved almost instantaneously to provide immunity, civil and criminal immunity to the industry that negligently injured this IVF patient family. But I agree with Glenn on the politics. I mean, the politics aren't good. You go after IVF, I think it's politically very dangerous.

Jennie Bradley Lichter: Thank you both. So let's stay on this topic of state regulation of IVF and pick up another question from the audience. A listener asks, "As other states presumably will also start looking at Alabama's recent legislative action and look to enact their own policies to protect IVF. What types of safeguards would be recommended for future legislation?" And I imagine here, again, given the politics that we're discussing, it's not clear that there are a lot of state legislatures who at this very moment are in the market to put more restrictions on the IVF industry. But if either of you were advising states, what would be your top wishlist item or maybe your top three in terms of protections for patients and the moms, the babies, the families that you've both been talking about, Carter, you've mentioned a few times maybe limitations on the numbers of embryos that can be implanted at any one time, but would love to hear more from both of you about what you think is kind of the most important protections to put in place.

Prof. O. Carter Snead: If I could just correct, I've not ever advocated for restricting the number of embryos that one could implant in an IVF cycle. I think that if one aims to protect human life at all of its stages, including the embryonic stage of development, I would argue that we should try to find ways to encourage folks to, again, to not create this enormous surplus of embryos that are put in cryo-storage. I would argue that the regulatory - again, regulation is very broad. It's not a binary prohibition permission. I mean, there's a wide array of fine-grain things the government can do to induce and encourage certain behaviors consistent with prudence as well as politics. And I would say that I admire those jurisdictions like in Germany and elsewhere, where they begin by saying, "Okay, the whole point of this enterprise is to create a child who you will welcome and love unconditionally as a gift, and if that's the case, how do you structure and create a framework for treatment of people with infertility that keeps that good in mind?" And one of the things that I think has been a successful strategy at least, is to say, all right, we don't want to create a massive surplus of cryo-stored embryos.

We don't want to destroy embryonic human beings at the early stage of development willy-nilly just because we don't need them or don't want them. What we want is to help people form families. So how do we figure out a way to treat people who are suffering from infertility in a way that is respectful of all of these goods at once? And I think if one were to contemplate a regime of IVF, it would be one that looked something like Germany or Malta or Italy before the Constitutional Court overturned parts of Law 40 where you would actually have a restriction - or not a restriction, maybe an inducement to the creation of only those embryos that you're going to be using in each IVF cycle. If you have to do cryo-storage for whatever clinical reason, think about egg freezing and other pathways in that sort of context.

Prof. I. Glenn Cohen: I'd love to see more robust insurance coverage. I'd love to see, I think a lot of the problems we see, mass creation is kind of a hedge against this, to be perfectly honest. I'd love to see more consumer protection in the sense of, I think many people go into IVF believing they're going to be successful when based on demographic factors and the like, they're not going to be and as a result, they're creating and putting their bodies through a lot, emotionally through a lot. I'd like more clarity about some of the testing that goes on. And so FDA has recently announced in general, it's going to look more at LDTs, which will have an effect on polygenic risk scores. I find many of these polygenic risk scores that Professor Snead mentioned to be at best hogwash and at worst really kind of terrible and really insidious in terms of what they're trying to offer people, just because I don't think the science is actually there.

Those are the kinds of interventions I'd like, and I'll say something that's uncharacteristically optimistic of me, I think conversations about regulating the industry were impossible in the shadow of abortion because I think people on the left perhaps correctly thought any attempt to kind of give some ground on this would essentially come back to haunt them in terms of debates about abortion. Now that we are living in a post-Dobbs America where those issues I think are, if not settled, or at least the positions are a little more ossified, depending on what state you're in, it may open up a space for more ability to have rational conversations about this sort of stuff.

Jennie Bradley Lichter: Interesting. So perhaps Glenn, you would give an optimistic answer to this audience question: "Do either of the speakers think an IVF bill could be written in a way that doesn't necessarily have abortion implications?"

Prof. I. Glenn Cohen: I think definitely, in that I think that especially, so first of all, if you're in a state where abortion is unavailable, it's going to turn out to say it's not going to have abortion implications because abortion is essentially unavailable in your state and you are writing a bill that's really about IVF. But there's tons of stuff, especially things that don't involve embryo destruction as such whose relationship to abortion I think is much more tangential, even in states with robust abortion protections. So I'd love, to me, we regulate all sorts of forms of medicine in terms of truth telling, in terms of informed consent, in terms of quality, in terms of self-dealing, in terms of the financial side. This is an industry where much of that scrutiny might also be appropriate.

Jennie Bradley Lichter: Carter, do you want to add anything?

Prof. O. Carter Snead: I would just say that I think as a precursor to any legislation, we need to continue this conversation. I feel like we need to be very clear-eyed and very specific about all the different consequences and unintended consequences of regulation in this space. And politically, it'll be interesting to see how it turns out. As a faculty member at a Catholic university, I'm going to say politically, it's very interesting because IVF, you see a very interesting divide between Evangelical Christians and Catholics on the question of IVF, even bracketing the issue of embryo destruction, which is - we don't need to get into the moral theology around IVF - for anybody who's interested, the "Encyclical Donum Vitae" is still very much the most important thing to read as far as understanding the Catholic perspective on IVF.

Jennie Bradley Lichter: Thank you. All right. I think we probably just have time for one more question before I let you both have a last word, and we've got a couple of questions about the intersection of IVF - legal issues surrounding IVF - and genetic diseases, Tay-Sachs and other diseases and folks who are using IVF specifically to try to use pre-implantation genetic diagnosis to try and avoid those kinds of diseases. Does putting that type of use of IVF on the table impact anything you've said or anything more that either of you want to say about that given some audience interest in this question?

Prof. O. Carter Snead: So we did a lot. We heard from a lot of different folks when we were writing the President's Council report. In my own research, I've talked to a lot of people, and this is an area in which it's a very sympathetic use of preimplantation genetic diagnosis. People are very concerned about forming families and making sure that the child's offspring does not have dreaded diseases, including diseases that will end their lives very quickly and painfully or even in an extended way. It's important though, just for the sake of a good conversation to understand what the objections would be to that from the perspective of one who has a view of a robust protection of human life from conception to natural death and a kind of sense of human dignity that applies on an equal basis to all human beings born or unborn.

One would obviously be deeply sympathetic to a family who's got a genetic history of certain kinds of diseases that are horrible, but what PGD entails, just to be perfectly clear, what this screening entails, whether it's for sex selection or for medical concerns or even to identify histocompatible siblings - that is compatible siblings who will be able to make transplants, usually cord blood transplants to preexisting older siblings. That's another use. They're called Savior Siblings. Just to be perfectly clear about the stakes of what we're talking about, we're talking about identifying embryos in my assessment, embryonic human beings at the early stage of development, and we are choosing those that lack a particular disfavored trait and then we're transferring those for the sake of bringing them to term as newborn babies, but then those that fail that test are discarded. And if you take the view, and I understand not everyone does, but if you take the view that these embryonic human beings because they're human organisms, members of the human species, that what you're doing essentially is you're choosing against a human being who has a particular disease and you're ending that life prematurely for the sake of this larger reproductive family-building project. And you can see, I don't have to spell out the ethical concerns that would be associated with something like that if you begin from the premises that every human organism is entitled to maximum moral respect.

Prof. I. Glenn Cohen: I don't disagree that much with what Professor Snead said. Maybe I'll just add that I think that this question about - we often have an intention, those people who are parents in the audience, you want your child to be healthy, you want your child to be happy, you want your child to be better. There's a real difference between wanting those things for a child who exists and choosing to have a child who will be happier, better, and healthier. Right? So as Jen Arvidsson once quipped, "There's a difference between making children happy and making happy children." And I think that there's very different kinds of moral arguments in favor of them and that I think they have to kind of be wrestled with. And I do think my colleague Michael Sendell has a beautiful book called "The Case Against Perfection", where I think from a perspective very different from my own, really talks about this kind of a very Aristotelian virtue ethics sort of way about disfiguring what the parental relationship is to a child,

Now, how much of that you want our political system to decide as opposed to allowing different people to live different lives and have different relationships with their children, I think is an open question. And to me, part of what's so interesting about this space is there's a real libertarian impulse here, and I know FedSoc is a big tent, so I'll appeal to the libertarians in my last 30 seconds, which is to say, how much involvement do we want the state to have in telling us what kinds of parents we should be and what kinds of desires as to parenting we ought to have and where to draw that line. I think that's an interesting tension within the FedSoc big tent.

Jennie Bradley Lichter: Great. Thank you. All right. In our final two minutes, anything else that we haven't gotten to - there's so much more we could say. I apologize to folks whose questions we didn't get to. We could do a whole other hour on this next week and not run out of things to talk about, I think. But Carter, anything else you want to add before we close?

Prof. O. Carter Snead: No, I don't think so. I want to be optimistic also. I want to say that when people of Goodwill have conversations with each other, even though they have very different points of departure and have the good of others in mind, I think good things can happen. And if you look around to the current political moment that can be despairing, but there are pockets and moments like this one where I think we're actually doing something good.

Jennie Bradley Lichter: Thanks. Glenn. Final word?

Prof. I. Glenn Cohen: I'll just say thank you for having me, and I will say one thing I'm very interested in thinking about and other people are thinking about, I'd love to talk more to you about how to think about cryo-preservation. We've talked about embryo destruction, but what does it mean to be a frozen embryo? Is that a harmful state? How do we think about that state and how should the law think about that? That to me is a very interesting ontological question, but also an interesting legal question.

Jennie Bradley Lichter: Terrific. All right, we'll tee that up for hypothetical part two sometime in the future. Thank you again to both of you. This was terrific. Thanks for being here.

Chayila Kleist: I'll echo those thanks. On behalf of the Federalist Society, thank you all so much for joining us today. We really appreciate you lending us your valuable time and expertise. Thank you also to our audience for joining and participating. We welcome listener feedback via email at [email protected], and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.