3rd place: FFRF Legal Essay contest — Io Jones
THE IVF EXCEPTION: A STRONGER FREE EXERCISE CHALLENGE TO ABORTION BANS
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.
SECULAR EXCEPTIONS AND THE “MOST FAVORED NATION” STATUS ARGUMENT
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.
- 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.
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.
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.