Lots of businesses claim that they won’t be able to continue to operate if they face one or another risk of liability. So it’s hardly a surprise that IVF clinics in Alabama are claiming that the Alabama supreme court ruling in LePage v. Center for Reproductive Medicine will put them out of business. But it is astonishing to see so many people uncritically racing to embrace the claim that the ruling “effectively banned IVF treatment” in Alabama, even as they often fail to describe what the Alabama supreme court actually ruled.
Again, the court ruled that Alabama law allowed parents to pursue a wrongful-death suit for the negligent destruction of their IVF embryos. You’d think that other parents pursuing IVF would be happy to know that IVF facilities would have a strong incentive not to allow their embryos to be negligently destroyed. You’d think that a woman who writes that her IVF embryos “are five years’ worth of money, sadness, and hope” would show some appreciation of the fact that the plaintiff parents may pursue damages for their loss. (The writer in fact gives no indication that she knows what the court ruled.)
I of course recognize the possibility that the deterrent effect of the risk of liability might be so great that IVF facilities would indeed conclude that they can’t operate. But I’m equally open to the possibility that the IVF facilities in Alabama are engaged in a massive bluff.
In the actual case, a patient “managed to wander into [a] fertility clinic through an unsecured doorway,” “entered the cryogenic nursery and removed several embryos,” and dropped them on the floor. Is it really that difficult for IVF facilities to protect against intrusions like that?
What existing insurance coverage do the IVF facilities have? How much more expensive is renewal of that coverage likely to get? How, in the absence of any jury awards so far, is it obvious that insurance couldn’t be obtained at affordable rates?
Perhaps there are answers to these questions that support the position that the clinics would have no choice but to stop providing IVF treatment. But I haven’t seen anyone even pose the questions, much less answer them.
So what accounts for the extraordinary reaction against the Alabama supreme court’s ruling? As we have seen, some people evidently find it politically useful to posit a nonexistent link between Dobbs and the ruling. Many others seem to be made deeply uncomfortable by having to face the biological reality that the life of a human being begins at conception, whether that human being is in utero or in vitro.