The Supreme Court is poised to weigh in on Fetal Personhood
This piece first appeared in our weekly newsletter, The Fallout.
After a summer heavy with ethics scandals, the Supreme Court justices will return to work Monday for their annual long conference, where they will consider adding a host of new cases to their 2024 docket–including stepping into the fight over IVF treatments in Alabama.
You may remember the Alabama Supreme Court’s February decision that ruled the state’s wrongful death statute could be used to hold a fertility clinic liable for the unauthorized destruction of unused embryos. Alabama’s Supreme Court made a decision that was an outright embrace of “fetal personhood.” This decision caused a panic in the nation about the possible consequences of overturning Roe. And while Alabama’s legislature issued a band-aid response to the decision, it didn’t end the litigation.
In a move that could inadvertently pave the way for the Supreme Court to recognize a legal framework for fetal “personhood,” attorneys for the fertility clinics at the heart of the IVF case have asked the Court to step in and effectively end the litigation. The Center for Reproductive Medicine claims that the Alabama Supreme Court decision violates their constitutional rights to due process because they were not given “fair notice” they could be liable for damages. This is because for the first 150 years embryos have been considered minor children under Alabama’s wrongful-death statute. The Supreme Court is not known for reviewing state laws, but since the Center for Reproductive Medicine’s argument relies on the U.S. Constitution there’s a higher chance that the justices will intervene. Second, it only takes four justices to agree to hear a case, and we know from the oral arguments in the EMTALA case last term that at least three justices–Alito, Thomas, and Gorsuch–are publicly “personhood”-curious. This scenario seems impossible, but the Court has done this before. For example, when it decided to overturn Roe after deciding that Mississippi’s 15 week ban on abortion was constitutional. What stops them from doing the same thing here?
We may know next week whether the Court will take up the Alabama case.
