Episode 32: In-Vitro Fertilization

Hello, I'm Adrian Dobb.

And I'm Moira Dodigan.

And whether we like it or not, we're in bed with the right.

So, Adrian, what are we talking about today?

So, today we're going to be talking about IVF in vitro fertilization.

That's right.

But before we do that, I have here in my notes, it says, awkwardly drop in the fact that you published it.

Now that can't be right.

Oh, yeah, published a book.

I published a book, people.

And if you enjoy

the comic stylings such as that one, you might enjoy this book.

And I would very much appreciate it if you bought it, read it, got it from your local library.

There's going to be an audio book not read by me.

So like really

has everything to recommend it already.

The book is is called The Cancel Culture Panic: How an American Obsession Went Global.

If you like the way that we talk about and dissect cultural pathologies here on Inbed with the Right, I think you'll really like the book.

It's funny, it's a different perspective on cancel culture than I had seen before because Adrian is a real cosmopolitan

internationalist,

citizen of the world, and has a really kind of like global approach

to this like particularly American

pathology.

And it's funny and it's playful and it's insightful.

And I feel like I wanted to underline almost the whole thing.

So you should

find the Cancel Culture Panic by Adrienne Daub wherever your books are sold.

Thank you so much for saying such nice things.

I'm like, now I don't know how we're going to segue back into IVF.

Oh, yeah.

Well, now we need to talk about the chill, expensive

hormonal process

of creating babies using artificial reproductive technology and its

new

site of political controversy because a lot of people in the U.S.

want to ban IVF.

So what do you know about this controversy, Adrian?

So it's kind of an interesting one, right?

It is, it breaks down along pretty predictable lines.

Democrats are making it into a big issue in this election, partly because I guess I gather that Project 2025 has some stuff to say about this.

On the other hand, Republicans clearly recognize it as kind of a losing issue and are running away from it even faster than they are from

the perception that

they want a complete national ban on abortion.

Of course, people appear to be buying neither of these protestations on the technicality that they're bullshit.

But still,

it is an interesting kind of issue that I believe was dropped into their lap sort of by the Alabama Supreme Court.

But I'm sure

you'll point out to our listeners and to me that the seeds for this, especially through fetal personhood amendments, of course, were

sown

years, sometimes decades ago.

And well, now that's bearing fruit.

And they're once again sort of running away from the from the results of their own theocratic impulses but yeah the basic outline appears to be that because as as abortion comes under pressure nationally

partly through these fetal personhood amendments or legislation the question of whether or not uh in vitro fertilization creates you know it runs afoul of any of these laws becomes becomes a really tricky one And it is one that affects a whole lot of Americans.

Yeah.

So as you pointed out, this does predate the Alabama controversy that arose earlier this year in February.

It predates even the Dobbs decision that sort of pushed this issue into

a place of having actual legal stakes, right?

But the far right, and particularly the anti-abortion movement, opposes in vitro fertilization.

And they oppose it as part of this broad spectrum of social changes and in particular changes to like gender and the family that have happened since the mid-century right they understand with some justification that ivf is both a product of and an enabler of the post-second wave change in gender roles and in the status of women.

And they also understand it to some degree as an assault on babies, right?

There is a, so there's sort of like two competing interests in the right-wing attacks on IVF.

One, right?

There's like one

is the notion that IVF allows the creation of families that Republicans don't like and a change to the ways that families are created and the timeline on which families are created that Republicans don't like.

And then there's this other like often overlapping, but I think distinct theory they have that embryos, which are created and in many cases also destroyed in the IVF process, are or should be treated as full human beings endowed with all the rights that are given to citizens in the Constitution, right?

And if you understand a frozen embryo in a Petri dish as having all the same rights as human beings, then

these practices become ethically and legally tricky, right?

And that is something that's been thrown into relief since Dobbs, as a lot of state laws that had been passed either as what are called trigger laws or as sort of messaging bills during the Roe era that recognized fetal or embryonic personhood are now actually enforceable in the post-Dobbs era.

That means that there are some legal cases working their way through the courts that seek to actually treat embryos as persons.

And that creates a lot of questions for families, for women, for doctors, and for judges, which we're going to get into.

But, you know,

I think it might be useful for our listeners and candidly, just for me,

to walk through just like what IVF is, what the procedure is, what the science is, because a lot, like a lot of like, candidly like sexual health, like a lot of reproductive technologies, its actual mechanisms and function are kind of opaque to me.

And Adrian, I think you know more about this than I do.

Well, I know some things because, you know, full disclosure, that's how my daughter was conceived.

But I have to say that, you know, I, I, I was.

It was my first time through that process.

And

you learn a whole bunch of acronyms, but like how it all works is still a bit of a, bit of a mystery.

Like they, they all kind of sort of shrug and like, oh, we don't know.

It's like 50-50 at this point.

And And you're like, whoa, wasn't this all science?

And then, like, it's kind of just,

you know, it's sort of where really impressive science comes up against human bodies being fundamentally unknowable or really hard to figure out.

But yeah, so the product.

So in vitro fertilization, which is different from intra-uterine insemination, for instance, there are other

forms of reproductive,

assisted reproductive health, basically.

Has, I think, three steps.

There's an egg retrieval.

Sometimes you have more than one.

That is to say,

person who produces eggs will usually inject themselves with all kinds of hormones.

And then there will be a retrieval of

one or more eggs until there's enough to really start the in vitro fertilization process, which is the second step, which is when

basically, yeah, it's what it sounds like.

You fertilize the

egg in a

test tube or in a petri dish or something, and then in the third step, there is an embryo transfer of usually one or two embryos into the uterus of the person carrying the child.

It can be the same person that the egg was retrieved from, or it can be a different person.

There are a couple possible intermediary steps, especially people who struggle with fertility.

They can be testing at different steps.

But that's my overall sense of this procedure.

I think it's quite common

in the

US, but it's still, I mean, even though someone who's gone through it,

it is a bit mysterious.

Yeah, it's science that

is

not that new, but is a product of the second half of the 20th century, right?

So IVF is now like incredibly common.

It is

very expensive, and insurance companies don't always cover it, which is something we're also going to be talking about later in this episode.

But it is really popular.

So these days, about 2% of babies born in the U.S.

are conceived through IVF.

That's according to CNN.

About 8 million babies have been born through IVF in total.

And it's been around for a while.

So the first child to be born from IVF was a British baby girl named Louise Brown.

She was born in 1978.

She's now 46.

Her younger sister became the first IVF baby to, in turn, give birth.

That was only in 1999.

So there had been some

not very well-grounded, but popular speculation that IVF babies might be infertile, and that was proved untrue in 1999.

Was this because of mules or something?

What was the reasoning there?

But, you know, these are healthy people who are now not especially young right yeah um my brother was conceived using ivf uh he is a fully 37 year old man right so when we're talking about ivf babies they're not all babies anymore yeah right yeah um embryo freezing was perfected a little later.

It's now a very typical part of IVF, right?

Something that happens a lot is that women who might be ending their reproductive years or worried that they might not be able to be in a position to have children by the end of their reproductive years, they often freeze their eggs.

This is something that sometimes, like, if you have a fancy job,

your boss might pay for you to freeze your eggs so that they can retain your talent rather than losing you either to childbirth or to another company that will pay to freeze your eggs.

So, like, I have friends who went into Big Law who got offered this.

At Silicon Valley, I think it's pretty, it's become a pretty prevalent perk.

And that was a little bit of a later development in the technology.

It came about in the mid-1980s.

The first babies to be born from IVF that had used frozen embryos were a pair of Australian twins who were born in December 1983.

And they'll be 41 later this year, right?

So this is like not

super new, but it's new sort of in the cultural consciousness, right?

Like our idea of how families are made, our very popular ideas of how families are made, have not quite caught up with the reality that this is how a lot of families are made.

Yeah, and I mean, a couple of things that might be worth pointing out.

So there's a culture of war around, you know, what to do with the embryos themselves.

But as you say, there's also

a culture of war about

about what the shape of the family is.

It is also, of course, like very noticeable.

It's a very expensive procedure,

you know, speaking from experience here.

And it is

one that I think in the conservative imagination is very frequently and inaccurately connected to LGBT families, right?

This is the idea that like, that people who can't normally conceive and then they're like thinking of two dudes, basically.

And that's not the case.

You know, like the people experience infertility at staggering rates,

but I believe in the popular imagination, it both kind of skews a little gay and it skews rich, which is also, I mean, it's true in the sense that you have to be able to afford it.

And that, as you say, the stuff like egg freezing becomes kind of almost a de rigueur kind of perk for the, for, you know, very high-achieving kind of professions, you know, sort of a benefits package.

But that's not to say, you know, people really want kids, right?

Like people will spend horrendous amounts of money, even if they're not themselves wealthy.

But the idea that this is kind of a niche thing and it's just meant to make, to fulfill the, you know, baby cravings of like

the very very wealthy and the very queer uh i think is is definitely part of why why the republicans sort of went for this even though it appears to be such a losing proposition they didn't understand that the people who were getting ivf were their neighbors right and were maybe their fellow churchgoers uh you know who maybe didn't talk about it that much but like who absolutely like needed this uh this technology

yeah and i would you know tease this culture war issue out a little more and just make it really explicit that ivf is very broadly used in truth, right?

A lot of different

kinds of families have children using IVF, but in the Republican imagination, Adrian, you're right that it skews very gay, right?

It's imagined as something that gay couples do because they can't have children the quote-unquote natural way.

It also skews in their imagination two career women, two women who have prioritized professional ambitions and participation in public life, be it through education or be it through, you know, fancy jobs,

or be it through some other kind of

decadent delay in settling down where they're, you know, doing Coke off of men's abs.

I don't know how Republicans think, but you know what I mean.

Like, this is something that is seen to be the product of women's insufficient moral commitment to family making and their decadent, suspicious, misguided to evil

prioritization of other non-baby-making things.

And that is a way that IVF gets linked to abortion that is beyond the mere fact that IVF often involves the destruction of embryos.

It is also something that is seen to be the province of women who aren't doing enough to commit themselves to to the family, especially very young, right?

Yeah.

And so we should say that,

I mean, there is something here that's like just

the kind of parascience or the kind of scientificity that you often get with anti-abortion politics, where like very clearly a bunch of these Republicans banning various procedures didn't even know what like an ectopic pregnancy was, right?

Like they just have no fucking clue.

And this extends to this too.

We're going to, I mean, I'm sure you're going to tell me a little bit about about the

question about sort of embryos and what happens to them.

But it's worth pointing out that like, you know,

the idea, like, so California yesterday actually passed a bill, SBE 729, got signed into law by Gavin Newsom,

that requires,

that requires

employers' plans to cover

health plans to cover IVF.

Right.

And it's, and there are 14 other states that basically require that IVF needs to be covered.

Um,

and there have been, you know, several attempts to get this passed in California, and this is, it finally, finally succeeded.

And, and, um, of course, people are describing it as this FOP to the, well, especially to gay men, but to parts of the LGBT community.

Uh, if you look at the comments under the governor's tweet on Twitter, which I do not recommend you do because people are fucking crazy, but still, um, they're all like,

Adrian, what is this podcast podcast for?

I know.

You just have to think about the ways that people are fucking crazy.

Right.

We should read them all like in a

church lady voice or something like that.

But the interesting thing, of course, is that

the largest cost for

a gay male couple most likely will not be the IVF itself.

It will be the surrogacy, which still very much depends on whether you're straight, whether or not that's covered.

So it's not,

it's just a

it's yeah,

not quite as easy, but it, but there's this kind of right, they have their own version of science that that has sort of subtended their

opposition to abortion for 50 years.

And it kind of bleeds into this as well, where you're like, well, if you've ever, you'd ever spent any time talking to a doctor about this, you'd find out that's not true.

Or if you talk to an insurance company, you'd find out that's not true.

Or, you know, a family agency,

they tell you you're wrong, but you didn't.

Instead, you listened to a

childless Monsignor about all this, and it turns out he didn't know jack shit.

Yeah, and speaking of the Monsignors,

a lot of

this IVF opposition is the product of the influence of Catholic thought, right?

It's not by any means exclusively a Catholic opposition to either abortion or to birth control or IVF in this country, but this is

an imagination of pregnancy and of the fetus or the embryo as a moral claim-holding entity

that really comes from Catholicism and has spread out into other kinds of like fundamentalist and right-wing American Christianity.

So,

Adrian, I'm going to tell you something that's going to maybe blow your mind, but is one of my favorite fun facts is that the Catholic Church did not always oppose abortion.

Yeah, I read a really fascinating Twitter thread about this.

I wonder if we could find it.

It was, I mean, it was yours.

One of my favorite saints, I have this like

nerdy side interest in Catholic saints and hagraphy.

I think no one who went to Catholic school doesn't, but sure.

I did not go to Catholic.

Oh, you didn't.

I'm so sorry.

No, I am like this without the influence of an education.

Oh, wow.

But one of my favorites is Saint Bridget, who is one of the two patron saints of Ireland.

And St.

Bridget was known as a abbess.

She converted large swaths of the pagan Irish countryside to Christianity.

And one of the ways she did this was by performing miracles that were witnessed by...

others, including the performance of an abortion.

Her legend has her pressing down onto the belly of a pregnant nun who, because she was a pregnant nun, was in quite a pickle,

and thus producing a miscarriage with her prayers, right?

This is somebody who is still venerated in extremely conservative, wildly anti-choice parts of the Catholic Church.

She has a shrine in St.

Patrick's Cathedral on Fifth Avenue in New York City.

And I'm like, this is an abortion provider.

And it's wild, right?

And so this is a part of Catholic history that gets re-litigated actually quite a bit.

Catholic theologians have a debate over at what point in pregnancy abortion becomes acceptable, which they identify as the time of ensoulment, right?

The time when the soul, the immortal soul, enters the physical form of the fetus's body, right?

There's a lot of different theories about this.

It is generally accepted among Catholic theologians for many centuries that ensolment happens earlier in pregnancy for male fetuses than it does for female ones.

That's a science.

The boys are better.

Yeah.

They

have various different ideas about what circumstances an abortion might be acceptable under.

A big question is like, is it required to save the life of a mother?

They ultimately decide, no, that's not acceptable either.

And if you perform any abortion at all, anywhere in pregnancy, you will be excommunicated and sent to hell, right?

But that is a centuries-long fight, and they don't settle on their absolute anti-abortion position until 1869 in a papal bull by Pius IX, Pope Pius IX, right?

One of the bigger popes, not like these minor Borgias who are just, you know, like running.

Yeah, exactly.

Just me for the hookers and the blow and you're like uh there's gonna be a weird pope you guys yeah the medici popes who are just like trying to

you know like foment coups in various italian city-states no this guy was a big deal um

so catholic teaching now says that life begins at conception right they technically say they don't know when ensoulment happens but you have to be safe and assume that it can happen at conception, which they define as fertilization, right?

This is is just science, and therefore, the fertilized egg has the full moral value of a human being, and abortion is equal to murder, including in instances where it is necessary to save the life of the mother.

This also extends to fertility treatments, right?

So, the destruction of those frozen embryos that are created as an excess in IVF, those are considered verbaltin.

But that is not the only reason why Catholics do not like

IVF, is because Catholics also

believe that there should be no emission of sperm except during unprotected vaginal intercourse within heterosexual marriage, right?

And I don't want to gross our listeners out.

but a lot of artificial reproductive technology prominently including IVF means that the intended biological father

does need to jerk off in a cup, right?

You do need to produce a sample.

And that is also forbidden under Catholic law.

Wait, that's the problem?

That's one, that's the other problem.

Yeah.

Yeah, because that does not happen outside of the doctor's office.

How dare you

tempt this perfectly pure 35-year-old to jerk off in a cup.

Well, I also wanted to tag this for our future episode on precious bodily fluids, right?

Because this is a notion of the omission of semen as having almost like a quasi-ritualistic moral value, and it's loaded with these obligations to only be done under very specific circumstances, which makes me wonder how do they deal with like a 13-year-old's wet dream?

You know, this is because I didn't go to Catholic school, I didn't learn this.

But it does sort of raise a few other questions, right?

But this is why Catholic teaching also forbids things like artificial insemination.

Another thing we might point out, so like the jerking off in a cup part of the proceedings, I think sort of shows how

divorced from everyday lived creaturely reality and sexuality a lot of this is.

But there's also other stuff about the frozen embryos that sort of strikes me as really very interesting.

One thing that happens, I believe, in almost all IVF

processes is something called embryo grading,

where basically the different embryos get evaluated because you have to figure out you almost always will produce multiples.

And the question is, which one do we implant?

Which one do we transfer?

And I mean, if there are any doctors listening, they'll probably scream in horror at my bizarre language and will write to us and clarify this.

But my impression is that the grading is basically a predictor of how well this embryo will implant in the uterus

and

how good a chance it has to

grow to maturity, basically, to grow into a baby.

What that, I think, sort of says is that, of course, many of these fail, meaning that these frozen fertilized,

these blastocysts basically are not future children.

They're future miscarriages, right?

That's what's going to happen, right, to a lot of them.

And it does strike me, like, you know, what would happen if they really outlawed this?

And, you know, full disclosure, I'd end up with a few.

few children I didn't know I had who are currently in a freezer.

And like you might say like, oh God, is this going to like lead to everyone having to have these children?

It's like, no, it's going to lead to women being pregnant constantly with embryos where doctors say, like, well, that's probably not going to work, but you know, we have them, right?

But it's really, really important that like these aren't,

you know, there's a kind of a fantastical thinking, a kind of fantastical sort of teleological thinking, like, obviously, these will become this.

And it's like, no, I mean, would that it were so, right?

Like, you know, parents, there are parents across America who would love for that to be the case.

That is not the case.

Many of these transfers fail.

Many of these, you know, don't work out.

And so, just speaking very brutally here, and I'm sorry if people are hearing this who are going through the process right now, I feel your pain.

But if you're looking at six, you're not looking at six potential children.

You're just not.

The odds, unfortunately, are not that.

The science is not quite there.

And I guess maybe the human body is just not there.

There are going to be, you know, you're basically what you're looking at are potential pregnancies.

That's it.

Pregnancies that might well end early.

Listen, this

great distance

between

an embryo and a child and the non-viability of many embryos, that is not unique to or a product of the IVF process.

No, exactly.

That is also something that happens in quote-unquote natural conceptions.

Something like half of all fertilized eggs that are ever fertilized in the uterus, you know, the old-fashioned way, don't implant.

They just drop.

They don't do anything.

Yeah, this is something that fertility doctors will tell you, that a lot of what people think are misperiods are very early miscarriages.

IVF kind of highlights the contingency in what we take to be natural, right?

And I think that's another sort of more subconscious reason why religious conservatives

find it such a vexing issue, that it kind of...

It's a little bit like that Todd Aiken legitimate rape comment, right?

Like there is a lot of sort of magical thinking around fertilization

in Aiken's case because he's a piece of shit, but in other cases, because it's a super anxiety producing moment.

And it's like, it's such a people who really want this to happen and can't figure out why currently it's not.

It's like one of the, it's a horrible thing.

And, you know, I so I think that there's,

it's natural that like we tell ourselves sort of just so stories about it.

And so it's not totally baffling to me that that Catholic conservatives would find this,

would want to tell themselves these stories.

But I think what it highlights is just just that human reproduction is really fraught and difficult and

unpredictable.

Todd Aiken, for those of our

deep cut, not ancient.

I believe it was, he was a candidate in 2010.

Congress?

No, a Senate in.

State Senate, right?

No, no, no.

Oh, a Senate?

Missouri, 2012,

to replace Claremont Caskill,

a Republican anti-abortion politician who was asked about his opposition to rape and incest exemptions on television in an interview.

And he said, well, if it's a legitimate rape, the female body has ways to shut that whole thing down, right?

This almost magical thinking that a pregnancy could not result

from unwelcome or unwilled or non-consensual sex, right?

And I think you're onto something, Adrian, with this almost like mystical understanding of fertilization in the anti-choice imagination.

I think part of it is not just that

it troubles our conception of the natural and adds contingency and uncertainty to something that the right-wing imagination likes to imagine as foreordained and extremely black and white, but it also draws

attention to the contingency of our own lives, right?

Before any of us became persons, let alone the persons we are, at some point

what became us was just a clump of cells, right?

Yeah.

At some point,

a sperm met an egg and set off a chain of events that led to you, right?

And if that event is very contingent, if it's very risky, if it's the kind of thing that fails all the time, that points to a world in which you don't exist, right?

In which you were never born, in which it failed to implant in the uterus, or it failed to develop and grow, or it failed to be sufficiently viable to implant.

You know, there's so many ways that it draws attention

to

how unlikely your own life is, right?

And if you are

a domination, masculinity, right-wing guy

who who builds your identity around thinking of yourself as inevitable.

Or if you are a Christian femininity

mother goddess kind of lady who builds your identity around an idea of a natural role of creating and nurturing life, right?

That's a very tricky concept that the whole thing could have gone haywire, that actually

it is perfect.

It is as natural for this not to have happened as it is for it to have happened, right?

That's that's a disturbing idea.

Yeah.

Yeah.

So, you know, along this theme, the idea of giving personhood rights to embryos and fetuses has long been a reach goal of the anti-abortion movement, right?

It has been an idea that they've had, and they've had a few different

ways that they could get into it.

One very popular and the sort of like hardcore principled stance that they take is they're like, what we we want to do is give embryos from the moment of conception full personhood rights under the 14th amendment right the 14th amendment is one of the three reconstruction amendments yeah the 14th amendment provides equal protection and due process uh to all persons right or all citizens and the idea of giving equal protection rights to fetuses would first of all it would ban abortion nationwide right but it would also mean that if you have to regard an embryo as a human being with full personhood rights, it doesn't really make sense that you would then be able to, say, freeze them or that you would be able to

dispose of them without due process of law, right?

This means that the embryos can go to court and demand due process rights, and people do indeed sue on behalf of embryos, right?

Who does that then?

Like, can I

do it?

I mean, how does an embryo give power of attorney?

Just

trying to find it out.

The other way that the anti-abortion movement has tried to do this is in ways,

by this, I mean established for eatal personhood, is in ways that don't seem so over the top, right?

At Stanford...

A few months ago last year, we had this amazing panel on pregnancy criminalization with Michelle Goodwin, Irin Carman, and Kiara Bridges.

And a lot of what we talked about at

that discussion was the enforcement of chemical endangerment laws against pregnant women.

Chemical endangerment laws are laws that were passed mostly in the 2000s that were meant to increase criminal penalties for drug users who exposed children to like chemical

pollutants or chemically dangerous environments.

It was meant to be used against people who were running meth labs out of their apartments, basically.

And this began to be enforced, particularly in Alabama, against pregnant people who used drugs, right?

With the chemical environment not being

your

environmentally dangerous, polluted apartment, but in fact, your very body because you smoked cannabis.

And that made your body, in which a quote-unquote child is living, a chemically dangerous environment, right?

So it made your child super cool.

Or like a lot of women are involuntarily tested for drugs at the moment that they give birth, especially if they are on Medicaid

and often they will test positive for trace opiates.

Then you hear these horror stories about people who ate a sesame bagel the morning that they went into labor, or I'm sorry, a poppy seed bagel the morning that they went into labor, and then test positive for heroin because um the poppy is what's being tested um and can lose rights to their kids right uh so that's one way there's also other ways where you know

fetuses will be able to be represented in court by their parents, right?

For rights to an inheritance, say that implies that the fetus has rights that can be enforced by a court, which might not be

used or passed in the initial instance to establish an abortion ban or an IVF ban, but effectively give enforceable rights and recognition of personhood to fetuses.

A lot of this happens in criminal law.

So a lot of states have criminal laws on the books that say that if, say, violence

or an accident impacts a pregnant woman, the person who is responsible for that violence or for that accident will be charged additionally for their injuries to the fetus.

Sometimes child support laws are written so that they can begin retroactively before a child is born.

So, like during pregnancy, somebody can demand child support from the person who impregnated them or can retroactively demand child support to begin back when they began to be pregnant.

And these are all cast as ways to protect women's rights, right?

When they're being passed, they're saying, well, like a pregnant woman is really vulnerable.

And if she gets murdered or if somebody hits her with their car, we want that person to be punished in a way that reflects the gravity of her vulnerability, right?

But it would be trivially easy to write a law that accomplished that without granting

personhood rights or the status of a person to an injured fetus, right?

You could say that her fetus was her property.

You could conceive it as a pain and suffering claim and say that the investment and hope she had for that pregnancy is what's been taken away.

You could make this about the rights of the pregnant person.

Instead, they give, they write these laws in such a way that gives rights to the fetuses.

And that is done very deliberately, right?

And that Those laws being on the books allows anti-choice lawyers to go into court and say, listen, judge, you don't have to make law to enforce fatal personhood because fetal personhood is already a legal fait accompli, right?

It's already functionally written into our laws.

And that is something that was sort of not really feasible before Dobbs.

It's becoming much more feasible now.

Yeah, they sort of legally, I mean, God, I wish I had one of our lawyer friends here, but like basically they legally backfilled all this stuff because Roe was kind of making the main

way they wanted to get get in through the gate impossible.

And then, once that goes, suddenly the absolutely demented implications of all the laws they put on the books.

And as you say, the roads not taken, the ways you could have safeguarded against the exact same abuses without indulging in some kind of bizarre fiction makes that super visible.

And I think that's why it's become this other battleground in the post-Dobbs era: that it

just,

while Roe is still the law of the land in whatever you know denuded form

these things didn't seem right it was easier for them to fly under the radar and their

sheer insanity did not become apparent until that buttress sort of

was taken away basically right and like listen we're already seeing

the impact of some of these fetal personhood recognition laws even outside of the IVF realm right like there are places now in the country where women are having or being told that they have to present a negative pregnancy test before they can get certain medications, right?

If fetal personhood was much more robustly recognized and enforced, it's not inconceivable to me.

that women of childbearing age might be legally required to present a negative pregnancy test before they can say, buy alcohol.

I guess there have already been criminalizations of what are most likely miscarriages, right?

Yes, yeah, many.

Uh, there's a woman who

was sent to jail for 28 days after she miscarried

because she was suspected of having not taken sufficient care of her pregnancy and was suspected of having caused her miscarriage through negligence.

And she was arrested on like child endangerment grounds, right?

Yeah.

A big way happens is through abuse of a corpse laws, because women will have miscarriages on a toilet and then flush it.

And if the fetus is recognized as a human being, then you have an obligation to treat the remains in a specific way and give them, say, a burial, right?

So this is, it comes about in very intimate, inventive ways.

But as you said, this wasn't really the center of the debate during the Roe era.

If you were not, as I am doomed to be, somebody who thinks about abortion rights all the time, you could miss that they were doing this, right?

Because all of the conversation during Roe was about gestational limits.

It was about the number of weeks, right?

It's like, well, what is viability really?

Is that at 24 weeks or is that 22 weeks?

15 weeks with Mississippi.

in the Dobbs case put forward, that's clearly a non-viability ban, but will they get rid of the viability standard, right?

all that's out the window the overton window has moved so far to the right on this now it's not about

these almost esoteric discussions of when in pregnancy life begins when like like the catholic debates over ensoulment right

it's a matter of how much can we restrict the movement and the freedom of women of childbearing age out of deference supposedly to these fetuses.

The Overton window has shifted so far to the right that it owes copyright claims to Margaret Atwood.

Oh, that brings us to February of this year and a state Supreme Court decision out of Alabama.

Do you know anything about this case?

Oh, yeah.

I followed it.

Tell me about it.

It was the moment when the dog caught the car, right?

Basically, the Alabama Supreme Court ruled basically in favor of fetal personhood.

in a way that was somewhere pitched between like, haha, we finally got him and like, well, you kind of left us no choice.

This law is pretty clear as written.

And then everybody was like, well, we didn't mean that.

And it's like, well,

I mean, like, I can see how the Supreme Court of Alabama got there, to be honest.

Like, they interpreted the law that activists, you know, politicians had written at a time when Roe was still very much on the books, I'm guessing, in exactly the way it was intended, but it for the first time made clear how the Dobbs decision and these pre-existing fetal personhood bills were going to interact.

And everyone freaked out, justifiably so.

IVF in the state of Alabama basically ceased because, you know,

how on earth?

Like, I mean, the legal fees alone would bankrupt any of these medical practices, which are not always huge.

And certainly don't

anticipate having to, you know, fend off the entire Christian rights, you know, legal war machine.

And then the Alabama state legislature had to sort of become active and kind of try and backfill something to make it less obviously absurd.

But it was to me a really interesting moment where you also realize that like,

yeah, Republicans use this too.

And it turns out that's not even a winning proposition.

Maybe even among the same lunatics that want to ban some of these things.

But like it turns out having a kid is nice.

And if you really want one, you're happy for a technology that allows that to happen.

And it was an astonishing moment, I thought, politically, in that the Republican Party, of course, like like has

noticed that possibly depriving half of America of their

equal protection under the law could have had a slight boomerang effect.

I feel like the National Republicans kind of dealt with it just through sheer mendacity, right?

Just claiming that they don't want to do what they very obviously want to do.

But this is the first time I've seen them really kind of try and roll back what they had done because they realize what they've created is so toxic.

Is that a correct read on what happened there?

I think so.

I mean, I will say most of these cases, these legal cases that establish fetal personhood, they tend to be very carefully selected, engineered

injury claims, right?

It's not that somebody will genuinely, you know, feel that their embryos are being mistreated.

It's that somebody from the Alliance Defending Freedom, who went to fucking Yale law, sets out to concoct some bullshit theater that they can enact in a state with a sympathetic court or better yet, a sympathetic

circuit jurisdiction.

That didn't happen with this Alabama case.

This Alabama case was like the underlying facts are almost slapstick, right?

Somebody who was a patient at a hospital wandered into a lab and I can imagine them just like in the gown with their ass hanging out the back, you know, and they opened a freezer and they were like, hey, what's in here?

Those test tubes contained the embryos of people who had gone through IVF, right?

And taking them out of the freezer destroyed them, right?

Those were no longer viable.

And there is a legal claim, I think,

that the people whose embryos they are had.

They're like, look, I had a contract with this healthcare provider, right?

They had an obligation to protect my property and my hopes to build a family that was bound up in that property.

Yeah, yeah.

They fucked up.

They didn't secure my property that I had entrusted them with.

They owe me money, right?

Yeah.

Yeah.

I mean, the claim must be, I mean, right, like people, I mean, we shouldn't make light of that, right?

People may have lost their chance to have a family.

That's an incredible thing to place monetary value on.

But yeah, that's what we have tort claims for, right?

Right.

But that's you're right.

That's not what happened here.

No, that's not what happened.

What happened was that this was seen or presented in court as child neglect, right?

The hospital neglected these quote-unquote children to the point that they died.

And that was what the Alabama Supreme Court, state Supreme Court ruled, right?

They're like, listen, our existing state laws.

recognize life as beginning at conception and they recognize fetuses and by extension embryos as having personhood rights, right?

So we have to treat this as a child endangerment case, and we have to recognize these frozen embryos as children.

That, right?

That

shut down IVF in Alabama.

It stopped.

People, families who were there were frantically trying to move their frozen embryos out of the state, right?

Because now that those embryos were considered children, it was very unclear what the obligations to them were, right?

It was very, very unclear if the facilities that had been storing these embryos and conducting IVF would be willing to keep storing them within the state borders, right?

It was chaos.

And people who had egg retrievals and implantations scheduled had to scramble to see if they could still get this chance to be pregnant or...

if this whole house of cards of the legal fiction of fetal personhood was going to bring their dreams tumbling down.

People really suffered, right?

And it was crucially for the Republicans a fucking PR nightmare.

Right.

Right.

Because the Republicans and the anti-choice movement, they want to cast themselves as pro-baby.

They want to cast themselves as pro-family.

And they were impeding people's very hard won and candidly, very, very expensive dreams of creating families and having kids, right?

This wasn't a shot at the decadent childless.

This was a shot at people who wanted to fulfill that, you know, white picket fence and 2.5 children and you and me and baby makes three fantasy.

And so

what the Alabama legislature did was they hastily reconvened, right?

And they almost immediately passed a law saying, no, no, no, no, no, no, no.

Embryos are only persons when they are inside a uterus.

And this allows them to maintain fetal personhood's use as a locus of controlling women, right?

But preserve

the access to IVF, which is logically inconsistent

with any kind of sincere belief in fetal personhood, right?

It exposes the insincerity of the claim, right?

But

this is not just a local Alabama controversy.

This is a national controversy, right?

And now fears about IVF spread across the country as broader recognition of what fetal personhood would actually mean begins to sink in for Americans.

And as we talked about at the top of the show, 2% of babies are born this way, right?

You know, people who have had an IVF baby.

You probably know some IVF babies.

I am privileged to know River, who rules.

She's just the best.

And people are thinking about the families that they know and are saying, oh my God, this could endanger people like me, people like my friends, right?

The other thing about it is that, as I also talked about at the top of the show, a lot of people who are conceived through IVF are now adults.

Right.

Right.

It's not quite the same

with abortion, right?

Because

the anti-choice movement likes to try and implicate people in abortion by saying, like, well, what were you if you were aborted?

Right.

But actually, nobody who was aborted is around.

Can I never answer that question?

Right?

They don't have, they don't vote.

They don't have opinions about it.

They don't have any feelings about it.

They're not here.

That's not true of people who are conceived with IVF.

Yeah, yeah, yeah.

They are here.

And a lot of them are old enough to vote, right?

It's a different kind of constituency.

They're old enough to freeze their eggs.

Yeah.

So is there any theology behind this at all?

Like,

is it just that they want to have their cake and eat it?

Or is there a theology that sort of makes implantation somehow the

the moment of ensolment or something like that?

Or is it just are they really just did they need to figure out a way to

inch back from you know,

a

position so unpopular it is really only matched by the vice presidential candidate for

the Republicans in sheer horrendousness?

Or is there something in evangelical or Catholic doctrine that would somehow allow for this?

Adrian,

you're going to be shocked to hear that it's bullshit because actually...

In other contexts, the anti-choice movement will claim that it is not implantation, but in fact fertilization that marks the moment that personhood begins.

For instance, like they claim that several kinds of birth control

prohibit implantation, but allow for fertilization, right?

So this is their stated opposition to birth control pills, IUDs,

and what was the other one?

Oh, Plan B, emergency contraception.

It's not really quite true that those work that way.

Primarily, they prevent ovulation.

That's the big one.

Sometimes they thicken cervical mucus, which stops the sperm from reaching the egg to fertilize it.

But the claim is that these also can theoretically prevent implantation of a fertilized egg and that because that is murder, the mere possibility that they can work that way requires banning them, right?

That is

not something that happens in a test tube.

That's something that happens in a person who who they want to control.

Right.

Right.

So it's basically Schrödinger's embryonic personhood.

They need it to be a person it is if they, if it's super politically inconvenient for it to be, who knows?

Exactly.

Right.

And listen, because these IVF bans are so unpopular,

Trump is really, really trying to get away from them.

Right.

And this has created a genuine cat fight within the Republican Party that makes me so happy to see Adrian.

I love to see it.

So Trump and some other people in the mainstream Republican Party, but really personally, Donald Trump desperately wants to appear pro-IVF, right?

But the anti-abortion movement is really afraid that he's going to kick them to the curb.

And they are digging their claws in and trying to extract as much and as maximalist an anti-choice commitment from him as possible.

So they are really mounting a big pressure campaign to make sure that these Republican politicians who take a lot of anti-abortion donations, by the way,

take a really hard line against IVF, right?

And like most of this is going on behind the scenes, but you can kind of see flashes of it coming out in the campaign, right?

So for instance, a few months ago, Trump said that he was going to vote.

in favor of Florida's abortion referendum, which would overturn Florida's currently enacted six-week ban because he said, no, that's too early.

Then the very next day, he flip-flopped and said, no, no, no, I'm going to vote for it because life is important.

That is because women like Marjorie Danenfelser and these Students for Life and these Americans United for Life and these like Susan B.

Anthony list

ladies got on the phone and they yelled at him, right?

And that is why he did that about face.

But IVF is something he's trying to kind of create a wedge issue on, right?

And he's trying, in fact, to make it look like he's going against his party so that he can be seen as a moderate on abortion.

So he privately told advisors that he thinks that abortion could cost him the election.

And he sees IVF as a way to play himself as like much more reasonable.

And this is a move that really pisses off the anti-choice movement, right?

He told a rally crowd that he would make IVF free.

I saw that.

And then his campaign staff is like freaking out and leaking to every reporter who will take their calls like, no, he didn't tell us he was going to say that.

We have no plan.

To do that, you would really have to

expand the Affordable Care Act, which Trump has wanted and tried to overturn.

Right.

But he keeps saying he's in favor of IVF.

At his September debate with Kamala Harris, He kept saying that he supported IVF access and he's like, he keeps going, I'm a leader on fertilization.

He said that like four times.

I mean, I've seen, I've seen the results, and I mean, they're not my cup of tea, but he did create some fertility, I suppose.

I think he forgets about his youngest two.

He's like, not Tiffany.

He has no idea that Tiffany exists.

But, like, you know, meanwhile, Democrats are like, okay, we'll politically call your bluff.

And they put forward a bill in Congress that would have prevented states from banning IVF, and Republicans blocked it, right?

Yeah.

And I mean,

do we think that any of that's going track i mean trump

trump's position on abortion is almost not the issue it's the position on abortion of the supreme court justices and you know uh circuit court justices that he's that he's appointed and who gives a shit what donald trump personally believes like the free cousins he brought to the supreme court um almost certainly will go for a fetal personhood thing if it's presented to them, right?

I mean, like, sure, John Roberts will find a cool way to dress it up, but like, there's no way he's, there's no way this, they wouldn't take a swing at this, right?

We know that

at least a couple of Supreme Court justices are fetal personhood-friendly.

So, Neil Gorsuch, Clarence Thomas, Sam Alito have all like put out breadcrumbs that they're into this.

I actually think the vote to watch on this is Amy Coney.

Amy Barrett, I thought about that too.

Who can be an interesting,

not as consistently

uh like bloodthirsty as you would think but she is very very uh pro-life right so i think if fetal personhood comes up to the supreme court there is a chance that they could take it and ban abortion nationwide that way but don't get it twisted they are going to ban abortion nationwide right they might do it probably won't be this way yeah it might not be through fetal personhood which really would be the maximalist way but they could do it it through reviving the Comstock Act.

Like they could do it in a back doorway by simply, you know, overturning FDA approval of Miffa Pristone.

Like they're going to get there.

And it's a matter of which route they take, but they're going to be presented by the anti-choice legal movement with a wide array of options.

Now, this is a nonpartisan podcast, so we should point out that you can vote for whoever you want to in November, but think about all this when you vote in November.

It's all I'm saying.

Anything else you have to add, Adrian, before we wrap it up?

No, this was really, really helpful and it's really,

really interesting in the sense that I think it both gets at kind of the theological underpinnings behind today's anti-choice movement, but also I think it's a, I mean, am I wrong to say that this is kind of the more hopeful part of the story?

Like there's just like

there is a there is a baseline,

there's a baseline sense that we all have about what ought to to happen and what people ought to be allowed to do when it comes to reproduction.

And there are definitely disagreements on many of these things, but I think the Alabama case really showed that

people are

ready to bring out

the pitchforks if certain basic senses of what's a person's privilege and what's their right

is violated.

And it kind of does make me hopeful that

this overreach will at some point um lead to some kind of some kind of pushback

it is much harder to take rights away from people politically especially if they are rights that have granted people a degree of dignity and comfort right um and like that's what ivf does for queer families and i think in particular for women it grants them dignity right it says this is something you can do and you don't have to be chained to

whatever shitty boyfriend you had at 26 to do it.

You know, you can do it on your own terms and have a fulfilling life.

And that's something that

people are willing to fight for more than you might expect.

So I don't know.

I'm hopeful about it a little.

I don't want to jinx it, but I think that the

way that Republican politicians are behaving indicates that they're scared.

And that's always nice to see.

Yeah.

And thank you for teasing the forever episode, the episode that we've been talking about doing, but we haven't done.

It's the Precious Bodily Fluids one, which is all about

conservators getting icked out by various effluvia.

And so, yeah, now we got to do it.

Now we got to do it.

We got to do it.

We got to do it.

I made the commitment.

Write and review us on iTunes, buy Adrian's book, The Cancel Culture Panic.

You can find us on Twitter and Blue Sky and all those beautiful places.

And we'll see you next time.

In Bed with a Right, we'd like to thank the Michelle R.

Clayman Institute for Gender Research for generous support.

Jennifer Portillo for setting up our studio.

Our theme music is by Katie Lyle.