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3rd place: FFRF Legal Essay contest — Io Jones

Io Jones


By Io Jones


The recent direction of religious liberty jurisprudence suggests that a “most favored  nation” (“MFN”) status argument may be available for free exercise claims challenging state abortion bans.1 The United States Supreme Court has held that laws must treat  religious activity as “most favored,” or at least not less favored, than comparable secular  activity. Thus, when a state allows exceptions to abortion bans for secular conduct, but not  comparable religious conduct, a free exercise challenge should trigger strict scrutiny.  

This essay argues that the free exercise argument for challenging abortion bans may be strengthened by pointing out states’ inconsistency in allowing in vitro fertilization  (IVF) while also banning abortion — referred to here as the “IVF exception.” Other  scholarship has examined how “medical exceptions” and “rape and incest exceptions”  undermine a state’s purported interest in “fetal life.” This Essay argues that the “IVF  exception” is far more damaging to a state’s purported compelling interest in “fetal life.”  Ultimately, the only way for a state to remedy the lack of a narrowly tailored compelling  interest, when subjected to strict scrutiny in the free exercise challenge context, would be to  re-legislate abortion bans to explicitly ban IVF. Some states have already made clear that  their abortion bans do not and will not ban IVF, and the high political costs of banning IVF  make this kind of re-legislation highly unlikely, if not impossible in some states. The  inconsistency reveals the real motivating force: states are interested in controlling  reproductive autonomy some contexts, but fear political backlash in others. 

This Essay proceeds in three Parts. Part I provides a brief overview of the “MFN”  status argument in the context of abortion bans and analyzes the strength of the “medical  exception” and “rape and incest exceptions” arguments. Part II analyzes the “IVF  exception” argument and posits that the “IVF exception” is the most damaging to a states’  purported narrowly tailored compelling interest. Part III provides brief conclusions and  suggests that litigants in the wake of Dobbs v. Jackson Women’s Health Organization ought  to focus on this inconsistency to challenge abortion bans with free exercise claims. 

Part 1


A “MFN” style argument exists to vindicate religious free exercise claims in the  abortion ban context. Abortion bans may be challenged for lacking general applicability.  The Supreme Court recently held that government regulations are not neutral and  generally applicable, and thus must trigger strict scrutiny, “whenever they treat any comparable secular activity more favorably than religious exercise.”  Strict scrutiny  requires a narrowly tailored compelling state interest — which the Court has held can be  undermined and even defeated by the secular exceptions that give rise to strict scrutiny in  the first place. 

Nearly all states with total abortion bans explicitly use some variation of the  language “to protect fetal life” as their interest in banning abortion.  However, all existing  state abortion bans currently include some secular exceptions. All states allow for the  “medical exception,” in circumstances when an abortion is necessary to save the life of the  pregnant person.  Some states also allow exceptions for rape and incest. Secular exceptions ought to trigger strict scrutiny under Tandon. Furthermore, this Essay argues that the  “IVF exception” is the strongest for triggering strict scrutiny and finding that a state’s interest in “fetal life” is not narrowly tailored.  

  1. Medical Exception  

The “medical exception” allows for abortion in circumstances where the life of the  pregnant person is at risk. Focusing on this exception suffers from a clear deficiency; some  courts will find that the state has an independent compelling interest in the medical  exception, and as a result, this exception will not be comparable under the MFN analysis. 

 2. Rape and Incest Exceptions  

Some states with near-total abortion bans provide exceptions in cases of rape or  incest. Focus on the “rape and incest exceptions” suffers from two flaws. First, some states  will “level down” and simply remove the exceptions if challenged by these claims. Though  there is strong political support for rape and incest exceptions, many state abortion bans reject them, and some conservative states will likely re-legislate abortion bans with no  exceptions. Second, though political support for these exceptions exists, the numbers of  abortions obtained in circumstances of rape and incest are relatively low, and political  support for these exceptions, though strong, is diffuse—at least when compared to support  for IVF. 

Part 2

The IVF Exception Argument

a. Current Status of IVF in States with Abortion Bans

In vitro fertilization (IVF) is a common fertility treatment in which eggs are  collected from a patient’s ovaries and fertilized with sperm in a lab to create embryos.  The  resulting embryos (fertilized eggs) are either transferred to a uterus, discarded, or frozen to  be used later.  While scholars and activists have raised concerns that abortion bans could  pose a threat to the legality of IVF, there has been little attention paid to the way in which  exceptions for IVF might undermine the state’s purported interest in “protecting fetal life.”  

All the states that currently ban abortion simultaneously allow IVF.  Abortion ban  statutory language is often unclear. For example, in some states it appears that statutory  language banning abortion could apply to embryos created in the IVF process.  Yet, in states with ambiguous statutes, the states’ attorneys general have either said explicitly  that the abortion ban does not apply to IVF or remained silent on the issue.  

b. IVF and the Most Favored Nation Status Argument

States that ban abortion but allow IVF are clearly inconsistent in their application  of the claimed interest in protecting “fetal life.” The legality of IVF parallels current secular  exceptions, such as rape and incest exceptions, in showing that state abortion bans are  underinclusive and lack general applicability. Here, IVF can be considered another “secular  exception” to abortion bans because IVF requires the discarding of embryos. Under Tandon,  the “comparability is concerned with the risks various activities pose, not the reasons why  people [participate in those activities].”  In comparing the disposal of embryos in the IVF  context to an abortion obtained at the embryonic stage, the “risks…[these] activities pose” to the state’s interest are exactly the same.  

By the numbers, the IVF exception raises far stronger concerns for the state’s  claimed compelling interest in protecting “fetal life” than medical or rape/incest exceptions.  According to the CDC, there were 620,327 abortions nationally in 2020 in the District of  Columbia and 47 states.  Studies have shown that one percent of people obtain abortions  due to rape and less than one percent of people obtain abortions due to incest.  In contrast,  the numbers of discarded embryos resulting from IVF procedures are far higher, with some  researchers estimating hundreds of thousands annually.  Additionally, estimates  consistently state that tens of thousands of embryos are “abandoned” in fertility clinics every year.  One study estimated there are 1.4 million embryos in storage in the United  States, though it is difficult to identify what percentage of these embryos are “abandoned”  due to competing definitions of the term.  Further, when compared with abortion, IVF is underregulated, and multiple accidents at fertility clinics and embryo storage centers have led to the loss of thousands of stored embryos. 

States struggle to distinguish their compelling interest in “fetal life” during a  pregnancy from the interest states might be expected to have in protecting “fetal life” of  embryos created during IVF. Tennessee, for example, has distinguished between abortion  and the discarding of embryos that takes place during IVF by distinguishing where the  embryo is when discarded (comparing an embryo “created outside a woman’s body” with an  embryo “‘living. . . within’ a woman’s body.”)  The argument that the location of the embryo  leads to a dramatically different state interest in “fetal life” is weak, particularly when  research has shown that embryos have the potential for successful pregnancies and birth even after decades of freezing. It is unclear how states can argue that some “fetal life” is  worth protecting when other “fetal life” is not. The inconsistency appears to reveal a true  motive in controlling reproductive autonomy in certain circumstances.  

Part 3


Inconsistency in how state laws treat “fetal life” under abortion bans versus in the  IVF context undermines the purported compelling interest in protecting “fetal life”—and  states have been unable to explain this inconsistency. Furthermore, states will struggle to  re-legislate abortion bans to ban IVF, or to change disposal practices, without facing  powerful and well-organized political backlash. In the wake of Dobbs, litigants have an  opportunity to challenge states that allow IVF but simultaneously ban abortion. These  states have laws that are not generally applicable or narrowly tailored to protect “fetal life,” which means that they “disvalue” and discriminate against religious reasons for abortion in  violation of the First Amendment.