Much has been written about Judge Amy Coney Barrett, President Donald Trump’s recent Supreme Court nominee to fill the vacant seat left by Justice Ruth Bader Ginsburg’s tragic passing. While the majority of the skepticism expressed by critics has been about Barrett’s views on abortion, a lesser known issue is that Barrett has been associated with groups who are critical of in vitro fertilization, or IVF. Most concerning to assisted reproductive technology attorneys like myself is the potential that a Justice Barrett, on the Supreme Court, might someday have occasion to rule that embryos are entitled to the same constitutional rights as people who have been, like, born.
In 2006, Barrett was one of the signatories of a newspaper ad, in the form of a letter authored by a conservative group, stating that they would “defend the right to life from fertilization.” The ad, by St. Joseph County Right to Life, a group located in South Bend, Indiana, is annually purchased by the group on the anniversary of the issuance of the Supreme Court’s Roe v. Wade opinion.
Maybe They Weren’t Really Talking About IVF, Just Abortion?
In an interview a few years ago with the Executive Director of St. Joseph County Right to Life — Jackie Appleman — Applebaum clarified that even though the ad was published on the anniversary of Roe v. Wade, the group was *not* just opposed to abortion in the ad, and in fact that they did really mean that life begins at fertilization for all purposes. For Applebaum, there was no ambiguity about whether that included the forming of an embryo. Or that the embryos covered by the life-begins-at-fertilization position covered those embryos formed in a fertility clinic for the purposes of IVF. Applebaum explained that her group’s position included opposing the discarding of embryos, whether formed in utero or formed in a clinic, and that they were even in support of the criminalization of discarding embryos.
That’s pretty intense. For those who have struggled with infertility and had to turn to IVF, that would pretty much mean game over on the hopes of a genetically connected child. While it only takes one embryo to create a baby, in order to get to that point, numerous embryos are formed in order to find the ones with the best odds of conception. Without that “over production,” the already costly process of IVF would likely become astronomical. This is, of course, to say nothing of the fact that IVF has been a common fertility treatment for over 40 years now, and there are millions and millions of cryopreserved embryos out there currently.
What Would It Mean For A Supreme Court Justice To Believe That Life Begins At Fertilization?
When it comes to embryo legal issues and questions of constitutionality, I turned to one of the foremost experts on the topic, Tim Schlesinger. You may remember Schlesinger from earlier columns discussing the McQueen case in Missouri. There, a state law declared that life begins at conception, and that that specifically included zygotes, blastocysts, and embryos. A couple divorced after going through IVF together, and one spouse insisted on using the remaining embryos for conception, against her ex-husband’s wishes. Schlesinger successfully argued on behalf of the ex-husband that he had a constitutionally protected right under the Fifth and Fourteenth Amendments to *not* reproduce.
So, here’s the big question: Is Schlesinger concerned about Barrett joining the Supreme Court? In short, not immediately, at least with regard to IVF. To be sure, Schlesinger was very concerned that even though Barrett only signed onto one ad published by a right-to-life group, she might share similar views with that organization more broadly. However, even if Barrett shared the group’s beliefs, and even if she were confronted with a case presenting the question of “when life begins,” Schlesinger thought it was highly unlikely that a position irreconcilable with legal IVF procedures could ever attract the votes of five justices. At least, not for now. Of course, if other justices with similar views are replaced in the next few years, that could change.
Taking a step back, Schlesinger noted that whether a Justice Barrett would ever be in a situation where her personal beliefs could come into play, without relevant precedent to consider, is unlikely. As Schlesinger argued in the McQueen case, there are long-standing precedents that the Constitution protects a right to privacy that includes the right to reproduce, as well as the right not to reproduce. Schlesinger would argue that it impermissibly burdens the right to reproduce if the government forces a person to try to use all cryopreserved embryos, regardless of circumstances. Of course, there are already some cases that cut against that proposition, such as when embryos were formed specifically to preserve a woman’s fertility prior to cancer treatment, and then the male contributor later objected to her use of the embryos. And there’s no guarantee that a Justice Barrett would adhere to precedents involving a right to reproductive autonomy under the Constitution.
But Schlesinger also pointed out that to date, there has never been a final judgment in an appellate court holding that embryos constitute persons under the U.S. Constitution. In fact, court rulings consistently find that embryos are either purely property, or a form of property with special characteristics. Just last year, when the Supreme Court was asked to hear the Rooks case out of Colorado — which specifically asked questions like whether embryos are people — the Court declined to hear the case.
So where does that leave us? Simply put, with concerns. But those concerns aren’t enough to go on to conclude that a Justice Barrett will mean the end of IVF. Not yet, at least.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].