by James Toomey
On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning the canonical precedent Roe v. Wade and holding that the federal constitution does not protect the right to an abortion. Dobbs has once again thrust abortion to the center of the national political conversation, as states around the country move to ban, restrict, or shield abortion access, while activists on both sides aspire towards a national approach one way or the other. At the same time, lawyers, scholars, advocates, and activists are exploring the implications of Dobbs in a variety of areas—from assisted reproductive technology (ART) to other rights grounded in substantive due process.
Bioethics — the branch of applied ethics focused on ethical questions in biology and medicine — is uniquely situated to offer insights on many of the questions raised in the wake of Dobbs. It is, after all, a field that has long debated questions of the relationship between physicians and patients, the nature of personhood, and the relationship between autonomy and health care.
On April 5, 2024, the Pace Law Review hosted a symposium on “Bioethics After Dobbs” at the Elisabeth Haub School of Law in White Plains, NY. The papers from that symposium have been published in a special edition of the Pace Law Review and are freely available to the public.
In the published version of his keynote, “The Alabama Embryo Decision in Ethics, Law, and Politics,” Glenn Cohen discusses theoretical tensions in the political response to protecting assisted reproduction after Dobbs (in particular following the Alabama Supreme Court’s decision in LePage v. Center for Reproductive Medicine). While there has been clear, bipartisan political support for protecting in vitro fertilization, notwithstanding the destruction or indefinite freezing of embryos that IVF entails, alongside increasingly restrictive abortion laws, Cohen wonders whether that juxtaposition of positions is entirely coherent. One can coherently recognize a right to abortion while believing that embryos and fetuses are morally important, on grounds of the autonomy rights of women; it is less clear how one could coherently endorse embryo destruction only in cases that don’t as obviously implicate autonomy rights, as with IVF.
In the next paper in the volume, “Patient-Practitioner Relationship in the Post-Dobbs American Landscape,” Lynette Martins and Scott Schweikart tackle the implications of Dobbs on the relationship between physicians and patients, arguing that restrictive abortion laws may involve intrusion into the historical privacy between patient and provider, which threatens to undermine the essential trust between health care workers and their patients in a variety of ways.
Similarly, in “Ethical Considerations in Qualitative Research After Dobbs,” Sabrina Singh tackles a related set of privacy concerns in qualitative research — arguing that while the shifting legal landscape after Dobbs has made qualitative bioethical research all the more pressing, it has at the same time raised difficult privacy concerns that require researchers to be all the more cognizant of the sensitivity of the topics they hope to discuss with subjects.
The next paper, “Legal Disputes Over Frozen Embryos After Dobbs: A Retrospective Study of Claims, Contracts, and Liability in Cases of Divorce or Separation” by Gerard Letterie and Dov Fox, offers novel empirical results from a study of almost 1,000 litigated disputes over the disposition of cryopreserved embryos after divorce. They find a dearth of clear contractual instructions for courts and divergent outcomes in the litigated cases, suggesting that clinics must do more to clarify contractual rights on the front end, while being cognizant of the possibility of forum shopping.
Myrisha Lewis also writes about the status of assisted reproductive technologies after Dobbs in “Personhood, Politics, Assisted Reproduction and the Law Post-Dobbs.” She argues that even as states take Dobbs’s license to restrict abortion, they can and should continue to preserve and facilitate assisted reproduction, including by subsidizing it. And she notes that, while pro-life and anti-ART views have long gone hand-in-hand, the bipartisan political response to LePage suggests that these positions are poised to come apart.
In “We Have Lost Our Minds,” Teneille Ruth Brown wrote on the legal rhetoric of abortion, contrasting it with the legal rhetoric of patient autonomy in bioethics and health law generally. On the one hand, American health law is paradigmatically organized around solicitude for patient autonomy. On the other, the rhetoric of our discussions around abortion treat women seeking abortions as a semi-autonomous monolith — with a uniform mental state akin to that of pre-meditated murder, while failing to acknowledge the range of mental states with which women in fact seek abortions, at least some of which would not be criminal even if fetuses were considered persons.
Megan Wright also addresses the question of who is entitled to exercise the autonomy thought to be paradigmatic of American healthcare, in “More Choosers, Fewer Choices? Supported and Medical Decision-Making Law Post-Dobbs.” Wright observes that, at the same time at which states are exploring increased restrictions on abortion, they are also experimenting with supported decision-making for patients previously considered incapacitated — extending some rights of health care autonomy to more patients, while limiting their range of available choices.
In “Are Embryos or Fetuses Brain Dead? Implications for the Abortion Debate,” Greer Donley develops another analogy with implications for the abortion debate — brain death. Donley notes that much of the disagreement about abortion purports to turn on “when life begins,” while there is much greater consensus on the symmetrical question “when life ends”—irreversible cessation of brain activity, recognized in the popular Uniform Determination of Death Act. Given the widely accepted intuition that brain activity is a precondition for “life,” in the relevant sense, Donley explores the possibility that embryos and fetuses might legally be “dead” before they develop material brain function, implying that removing them might not even be “abortion.”
In “When to Save the Baby: A Fundamental Conditions Approach,” Matthew Liao, Jordan Liebman, and Corine Astroth take the bioethical discussion beyond birth, analyzing when parents and physicians have an obligation to sustain the life of a baby born with severe developmental abnormalities. Applying Liao’s “Fundamental Conditions Approach,” developed at greater length elsewhere, Liao, Liebman, and Astroth argue that such an obligation exists when the baby, notwithstanding developmental abnormalities, has the fundamental capacities to live a worthwhile human life — characterized by core abilities like thinking, acting, and interacting with others.
In the final paper in the volume, Thomas Williams, in “Dobbs and Sterilization Decision-Making: Understanding the Coercive Spillover Effects in Reproductive Choice,” discusses the implications of Dobbs on an unanticipated domain of reproductive choice — the extent to which people may seek out sterilization to avoid the risks of pregnancy in an environment in which abortion becomes increasingly unavailable. For Williams, these sterilizations, most likely to be sought by the least advantaged, ought to be thought of as coercive in important ways, implicating the moral and legal frameworks we have developed to respond to the more overt sterilization campaigns of the eugenics era.
All the papers in the volume are freely available on the Pace Law Review’s website here.
James Toomey is an Associate Professor of Law at the University of Iowa College of Law
