(C) Tennessee Lookout
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The embryonic life • Tennessee Lookout [1]
['Bruce Barry', 'More From Author', 'March']
Date: 2024-03-18
That Alabama Supreme Court decision last month granting legal “personhood” to embryos created through in vitro fertilization (IVF) is no laughing matter, but I do confess to covertly enjoying the tortured moral and intellectual gyrations into which the ruling tossed anti-abortion types. It turns out—Who knew? Spoiler alert: we all did—that conservatives readily turn to IVF technology when all else fails to manufacture the next generation of right-wingers, just as liberals do to propagate their own baby socialists.
While the Dobbs decision that aborted Roe v. Wade two years ago on its face merely handed regulation of abortion to the states, paranoid liberals sensed a deeper and more sinister subplot putting technologies like IVF and even some forms of birth control in the religious right’s crosshairs. The Alabama court’s holding that a microscopic cluster of cells popped into a liquid nitrogen tank receives constitutionally protected “rights of the unborn child” calls to mind the old Joseph Heller line: just because you’re paranoid doesn’t mean they aren’t after you.
So how worried should we be here in Tennessee? Short answer: pretty damn worried. For a longer answer we need to head into the weeds a bit on Tennessee’s abortion statute.
The Alabama ruling zeroed in on IVF because it was a case brought by IVF parents against a clinic that had accidentally destroyed frozen embryos. The viability of their wrongful death claim rested on the court’s willingness to legally equate a frozen blastocyst with a living breathing child. In the wake of the ruling, state lawmakers in Alabama hurriedly passed and their governor signed legislation to extend legal immunity to IVF clinics. A bill crafting a similar protection in Tennessee failed in committee earlier this month.
Some think Tennessee doesn’t need the sort of legislative firewall Alabama created. State Attorney General Jonathan Skrmetti issued an opinion in 2022 that discarding fertilized embryos isn’t punishable under Tennessee’s criminal abortion statute. He told state legislators at the time that the abortion ban covers “intent to terminate the pregnancy of a woman known to be pregnant” which means “a living unborn child within her body.”
The bill (HB 2227) that failed in the Tennessee house in early March would have clarified that “abortion does not include … the disposal of embryos resulting from fertility treatments.” Perhaps that clarification would be superfluous, given that the pregnancy language mentioned by Skrmetti is indeed in the statute. So we can reasonably swallow the A.G.’s conclusion that IVF is safe here (for now)? Not so fast.
Yes, the language of the criminal abortion statute does seem to make it clear that your IVF clinic can pitch your surplus blastocysts without fearing prosecution—under the criminal abortion statute. But the legal mayhem in Alabama came about when their Supreme Court interlaced their laws on wrongful death (not an abortion law) with their laws on rights of unborn children. What is to stop a Tennessee court from doing likewise?
Tennessee law defines an “unborn child” as “an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.” Perhaps you can’t level a criminal abortion violation at a clinic for discarding a frozen embryo, but what’s to stop a Tennessee prosecutor from bringing an assault or homicide charge? Yes, the abortion definition in the statute is confined specifically to a woman who is actually pregnant, so presumably you can’t charge an IVF clinic with illegal abortion.
But the “unborn child” definition has no such pregnant-woman limitation. If you believe that a blastocyst is a thing that qualifies as unborn life (or “preborn” as the forced birth brigade likes to put it), then you might be inclined to exploit the criminal code to safeguard its “rights” both in vivo and in vitro in whatever way you can persuade a court to buy into.
And then there’s birth control. In addition to removing IVF embryos from the purview of the abortion ban, the failed state house bill HB 2227 would also have clarified that abortion does not include “the use of contraceptives, including any device, medication, biological product, or procedure that is intended for use in the prevention of pregnancy.” Is this clarification necessary? Sure seems like it.
Returning to Tennessee’s abortion statute, recall that “abortion” means intending to “terminate the pregnancy of a woman known to be pregnant.” “Pregnant” means “having a living unborn child within her body…from fertilization until birth,” and the definition of an “unborn child” also spans “fertilization until birth.”
As an aside, it’s a silly way to define “pregnant” since as I understand it, a person isn’t medically regarded as pregnant until the fertilized zygote, having become a multicellular blastocyst, implants on the uterine wall—typically several days after fertilization. But what science says is one thing, and (as is unfortunately so often the case) the piffle Tennessee lawmakers choose to write into law is another.
So in Tennessee a zygote (a just-fertilized cell) is deemed an unborn child with rights. Although most forms of birth control prevent ovulation and/or fertilization from happening, some do impair implantation of the fertilized egg. That’s not an abortion if you define pregnancy in the medically appropriate way—as implantation—but it might become one under a poorly written law—like Tennessee’s—that equates fertilization with pregnancy.
Granted, in criminalizing termination of a pregnancy the statute does limit itself to “a woman known to be pregnant.” Some might say this wouldn’t criminalize birth control that impairs implantation because a woman in the first days after fertilization (when some forms of birth control may do their thing) isn’t known to be pregnant. But wait a minute—known by whom? Those of a certain religious bent might believe that God knows she’s pregnant. That may seem frivolous, but do you really trust theocratically inclined Tennessee lawmakers and judges to overlook this possibility?
From the women’s (as opposed to the Almighty’s) perspective a pregnancy test won’t yield a positive result until it can detect the hormone (hCG) released when the egg attaches to the uterus. But what about the woman who suspects she might be? We’ve all encountered women who claim to have strongly suspected they were pregnant very soon after the act. A test wouldn’t have confirmed it until several days later, but the law just says “known.”
Everything I’ve discussed to this point is about state law, but it’s worth mentioning that there is similar potential turbulence at the federal level in the form of a bill called the “Life at Conception Act” (HR 431), which has been kicking around Congress since early last year. It declares that the constitution protects the rights of every human person, which means “every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”
Like Tennessee’s repellant abortion statute, HR 431 would federally define personhood in a way that invites legislatures and courts to make criminals of those who use IVF and birth control. You might think okay, that’s an odious bill, but it’s just conservative posturing since we all know it will go nowhere in a hopelessly divided Congress. But do we? Is a return to GOP control of both houses of Congress and the White House, coupled with a repeal of the filibuster rule, that remote a possibility?
And by the way, among HR 431’s numerous cosponsors we find seven of Tennessee’s eight Republican House members (all but Scott DesJarlais). Those running against these seven can and should say with conviction: the incumbent is on the record endorsing a law that enables criminalizing IVF and some forms of birth control. Full stop.
So back to the question I posed at the outset: After Alabama how worried should Tennesseans who care about reproductive freedom be? My answer is there’s a lot of open meadow in the savanna that lies between the town of alarmed and the city of freaked out. Pick your spot and pitch a tent.
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