The Little-Remembered Supreme Court Precedent That Could Protect IVF -- and Abortion

[Nevilledog]

https://www.politico.com/news/magazine/2024/03/27/1923-supreme-court-decision-ivf-abortion-00149194

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.

*snip*

[elleng]

1. A half-century before Roe v. Wade, the Supreme Court ruled that family life is off limits from 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.”'>

https://www.politico.com/news/magazine/2024/03/27/1923-supreme-court-decision-ivf-abortion-00149194

Thanks

[ancianita]

5. Thank you. Important in getting Roberts on the side of the four leaning against the plaintiffs. And for the FDA.

[House of Roberts]

2. And what makes them believe Amy the Boney Carrot

and the Fascist Five give a rat’s ass about precedent?

[Nevilledog]

3. Ain't that the truth

[Fiendish Thingy]

4. Except we now live in a post-stare decicis world where precedents are not binding on this SCOTUS. NT

[Deuxcents]

6. But during their interviews before Congress, it did matter..or so they testified.

Betrayal comes to mind. Misrepresentation. Lying. Must be a prerequisite to confirmation.