Portside

Last month, the Alabama Supreme Court stunned the nation by holding that extrauterine embryos frozen for in vitro fertilization procedures are “embryonic children.” The court’s theory is that life begins at fertilization regardless of where conception occurred or whether the “child” is located in a cryogenic tube or a human uterus. By that logic, IVF clinics could be liable for the destruction of frozen embryos under the state’s Wrongful Death of a Minor Act.

The Alabama ruling set off a firestorm of conservative backtracking on the ruling, which was the inevitable fallout of the U.S. Supreme Court’s reversal of abortion rights in Dobbs v. Jackson Women’s Health Organization. The reasons for this reaction run deep: The Alabama ruling pits the conservative ideal of promoting the traditional family unit against the ideology of protecting unborn human life at conception irrespective of the pregnant mother’s competing interests.

The Alabama Legislature passed a law to restore access to IVF two weeks later. But because Dobbs muddied the waters on whether a fetus is entitled to the same protections as a human adult or born child, the underlying controversies will continue to percolate. Louisiana already has an embryo destruction ban, and more states are considering them.

If a challenge were to make its way to the U.S. Supreme Court, a little-remembered case from the early 20th century could prove consequential to both sides. In fact, if harnessed by proponents of abortion rights, the case would provide a precedent that could shift the terms of the IVF-versus-abortion debate away from the line of reasoning enshrined in Roe v. Wade to a new one that carves out family life as existing beyond the reach of government interference.

Most people view Roe as based on a case called Griswold v. Connecticut, in which the Supreme Court struck down a Connecticut law making it illegal for married couples to use contraceptives. Writing for a 7-2 majority in Griswold, Justice William O. Douglas famously identified the Constitution as guaranteeing a general right to privacy derived from “penumbras,” or zones of constitutional protection extracted from various provisions of the Bill of Rights, including the First, Third, Fourth and Ninth Amendments. Griswold’s ethereal penumbras gave rise to unrelenting attacks on Roe as a legal outlier built on sand. For instance, in a dissenting opinion in June Medical Services, LLC v. Russo, in which a Supreme Court majority declared Louisiana’s hospital-admission requirements for abortion clinics unconstitutional, Justice Clarence Thomas complained that Roe “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.”

That’s never been true.

The line of reasoning in Roe actually stemmed from something much older than Griswold — a concept called “substantive due process” that traces back to a line of cases that includes the little-remembered Meyer v. Nebraska. In Meyer, the Supreme Court ruled in 1923 that “substantive due process,” which later gave rise to constitutionally protected reproductive rights, precludes states from interfering in certain categories of decisions that belong to families and parents.

The state law at issue prohibited the teaching of a foreign language to children. A Nebraska statute passed in reaction to World War I made it a crime to teach in any school, public or private, in a language other than English to students through the eighth grade. (“ Latin, Greek, and Hebrew [were] not proscribed; but German, French, Spanish, Italian, and every other alien speech [were] within the ban.”) A man was found guilty of teaching German to a 10-year-old in a parochial school maintained by the Zion Evangelical Lutheran Congregation, and challenged his conviction on the grounds that the law was unconstitutional. The lower court upheld the Nebraska statute, explaining that “[t]he legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”

The Supreme Court reversed, reasoning that although the Fourteenth Amendment’s Due Process Clause ostensibly mandates only that the government follow certain procedures before depriving individuals of life, liberty or property (such as a jury trial in criminal cases), the concept of “liberty thus guaranteed” is broader, and includes certain spheres of life in which the government cannot intrude at all — even if it follows procedural steps first. The high court went on to list the areas of family life that are protected from government intrusion altogether: “Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, [and to] establish a home and bring up children.” As part of the teacher’s constitutional right to choose an occupation without government intrusion, therefore, “his right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.”

Meyer accordingly constructed a narrow list of matters that are constitutionally off-limits for government regulation, even by state legislatures, including the ability to establish a home and bring up children. Based on the Republican response to the Alabama ruling, it appears that the zone of personal family life, which would include IVF decisions, is one that conservatives still want to see protected. Sen. Tommy Tuberville (R-Ala), for example, called the Alabama ruling “an attack on families stacked with kids,” adding that, “We need more kids.” Georgia Gov. Brian Kemp, also a Republican, asserted that many families “wouldn’t have children if it weren’t for that.” House Speaker Mike Johnson (R-La.) called IVF “something that we’ve got to grapple with” despite his longstanding dogma that life begins “from the moment of fertilization.” Even former President Donald Trump posted on his Truth Social platform that, “We want to make it easier for mothers and fathers to have babies, not harder!”

In Dobbs, the majority rebuked the very notion that substantive due process protects a right to abortion. “The Constitution makes no reference to abortion,” Justice Samuel Alito wrote in Dobbs, so it’s ultimately up to state legislatures to decide whether an unenumerated right exists at all under state law. So long as the state has a “rational basis” to regulate abortion, which for the Court would include “respect for and preservation of prenatal life at all stages of development,” abortion bans are constitutional. Taken at face value, that same rationale would justify a state legislature’s decision to impose barriers to IVF.

Much like Alito in Dobbs, the Alabama Supreme Court took a textualist approach to that state’s wrongful death statute, relying on dictionary definitions and contemporary understandings when the law was enacted in 1872. If life begins at conception, it reasoned, the fetus must be protected by the government, even if that means forbidding destruction of embryos created for IVF use. (The defendant IVF clinics argued that an embryo or fetus ceases to qualify as a “child” if it isn’t contained within a biological womb, while the parents urged that ruling against them would deny a civil remedy against individuals who “kill” an unborn child after it leaves the uterus but before full delivery from the birth canal.) And the state cannot be constitutionally forced, Alito wrote in Dobbs, “to regard a fetus lacking even the most basic human right — to live.” If the Court were asked to weigh a state’s interest in restricting IVF against the fetal “right to live,” it would be hard-pressed to flunk the state’s law under Dobbs’ rational basis test. The Court would have to grope for another way to enshrine IVF access in the Constitution.

Yet like abortion and contraception, other family-oriented rights — such as the right to “acquire useful knowledge,” to choose whom to marry (including for heterosexual couples of the same race), and to decide how to raise your own children within the confines of your home — are not expressly articulated in the Constitution under the reasoning of Dobbs. So what happens if states, or their courts, take actions that interfere with such illusory rights that Americans take wholly for granted? In the wake of Dobbs, the Constitution’s silence presents a problem for people seeking to keep government out of those decisions.

The answer could lie with Meyer, which considered the ability to raise a family a fundamental constitutional right as a matter of substantive due process. Alabama’s IVF decision blew up the Dobbs majority’s cavalier approach to family planning. The problem with Roe stemmed in part from its legal and political framing of reproductive rights as about women’s right to abortion.

But Roe was about more than a right to abortion — it was also about keeping the government out of personal family life. The core principle behind Roe — that government can’t tell people how to manage their family decisions, including whether to have kids, when to have them, how to educate them, how to decide on medical needs, and how to provide for them in terms of work-life preference and balance — is one that both sides of the debate seem to embrace, and it’s the one at the heart of Meyer. Once the debate is framed that way, based on the older rationale underpinning Griswold and Roe, conservatives must get behind the liberty interests that are truly at stake when the government decides to tell couples they must — or can’t — have a child.

Kimberly Wehle is a professor of law at the University of Baltimore. Her article, The Ninth Amendment Post-Dobbs: Could Federalism Swallow Unenumerated Rights?, appears in the Maryland Law Review.

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