Of Embryos, Elections, and Elephants: Are Rights Always Zero-Sum? | Michael C. Dorf | Verdict

Last week’s decision by the Alabama Supreme Court in LePage v. Center for Reproductive Medicine, P.C., is most notable for its use of the extreme rhetoric of the fetal personhood movement—calling frozen embryos “extrauterine children,” for example. Joanna L. Grossman and Sarah F. Corning quite rightly called much of the reasoning of the opinion “nonsense.”

To be sure, the particular result in LePage could be justified. Creating embryos via in vitro fertilization (IVF) requires substantial economic and bodily sacrifice. Hormone stimulation carries risks, and egg retrieval can be painful, extremely so if not managed correctly. By failing to store the plaintiffs’ frozen embryos securely (and thus allowing their destruction by a third party), the fertility clinic defendants betrayed the plaintiffs’ trust and caused substantial harm. A sensible tort system would permit legal liability in such a case. Indeed, judges sympathetic to the plaintiffs’ plight could even be forgiven for bending the language of the state’s Wrongful Death of a Minor Act to encompass negligent storage and thus destruction of frozen embryos.

The problem with LePage is not the outcome in the particular case, but the reasoning, which, as the court acknowledged, could mean the end of IVF in Alabama. Given the medical risk, discomfort, and expense of an egg retrieval, doctors hoping to produce embryos that will, if gestated, develop into healthy babies, extract and then facilitate fertilization of multiple eggs in each IVF round. Conducting IVF responsibly (and preventing the cost of an already expensive procedure from skyrocketing) thus routinely results in the production of “extra” embryos. Prospective parents may choose to freeze some or all of these embryos for later implantation, but invariably a great many of them will not be implanted. They can be preserved for a decade or even potentially several decades, but until the Supreme Court fully greenlights the transformation of the United States into the dystopic Gilead of The Handmaid’s Tale, the extra embryos cannot be implanted into anybody’s womb without consent. Eventually, some substantial number of embryos will need to be discarded—or, as the Alabama Supreme Court would put it, murdered.

Accordingly, as the Alabama Supreme Court anticipated with equanimity, fertility clinics throughout the state are suspending their IVF treatment programs, lest the inevitable destruction of embryos lead to civil or even criminal liability. Republican elected officials in Alabama have indicated they would like to change the law to re-legalize IVF, but to do so could require amending the state constitution. Although the Alabama Supreme Court rested its ruling in LePage on what it deemed the plain meaning of the statute, it also referred to Article I, Section 36.06 of the 2022 state constitution, which declares the state policy “to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”

Zero-Sum Rights

At least in the short run, the result of LePage is profoundly ironic. Plaintiffs who complained that a fertility clinic did not adequately protect the embryos they created through IVF won a victory that is shutting down IVF throughout Alabama. The irony should hardly have been unexpected. Expansion of rights frequently comes at the cost of others’ liberty. Here, extending personhood rights to embryos results in restricting the freedom of prospective parents to do with those embryos as they please—including creating them in the first place.

Voting rights are similarly zero-sum. Consider the 1922 Supreme Court case of Fairchild v. Hughes, in which a New York man sued to enjoin certification of the ratification of what would become the Nineteenth Amendment, extending suffrage to women. He lost because of what would now be deemed a lack of standing, but he was not wrong that doubling the voting population effectively reduced the impact of his vote by half.

Fairchild is hardly unique. Citizens United v. FEC and similar prior precedents do not grant voting rights to corporations, but they do recognize a First Amendment right of corporations to spend unlimited amounts of money to support or oppose candidates for office (so long as they don’t coordinate with the campaigns). Quoting the earlier decision in Buckley v. Valeo, the Court in Citizens United proclaimed: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Maybe, maybe not, but the Court’s recognition of corporate personhood for free speech purposes effectively undercut the free speech rights of ordinary citizens, whose voices are more likely to be drowned out by the cacophony of corporate speech.

Not All Rights Are Zero-Sum

Are all rights zero-sum? In a trivial sense, yes. A right in various parties against X prevents others from doing X to them. For example, recognizing that everyone has a right not to be tortured or enslaved necessarily restricts the liberty of those who would like to torture or enslave.

But the real question is not whether recognition of some right limits anyone else’s liberty at all. Of course it does. That’s what it means to recognize a right. The zero-sum question more properly focuses on whether recognition of certain rights in one category of beings or entities results in a diminution of anyone else’s valuable liberty.

The Supreme Court’s recognition of a right to same-sex marriage is instructive. Opponents argued that allowing same-sex couples to marry would dilute the value of opposite-sex marriages. “Far from seeking to devalue marriage,” Justice Anthony Kennedy responded for the majority in Obergefell v. Hodges, “the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities.”

Put differently, marriage is not a zero-sum right. When same-sex couples marry, that does not in any way impede the ability of opposite-sex couples to marry or to do anything else they wish to do.

To be sure, dissenting in Obergefell, Justice Samuel Alito whined that by acknowledging the right to same-sex marriage, the Court was implicitly restricting the right of religious traditionalists to express their opposition to same-sex marriage, lest they suffer social opprobrium by being labeled homophobic bigots. He repeated that charge in a solo opinion respecting the denial of certiorari just last week.

Justice Alito’s lament is misguided. The right to same-sex marriage does not forbid anyone from expressing opposition to same-sex marriage. Indeed, just last June, the Court held (in an opinion Justice Alito joined) that the First Amendment shields persons who own expressive businesses and oppose same-sex marriage from public accommodations laws. The fact that social opprobrium attaches to homophobic bigots is a consequence of freedom of speech for those who oppose homophobic bigotry. It is hardly a ground for the conclusion that Obergefell was wrongly decided.

Rights That Increase the Size of the Pie

Thus, not all rights are zero-sum. Indeed, we can go further. To continue the use of (and to mix) metaphors drawn from economics, some rights are win-win; they grow the pie for everyone. Same-sex marriage is itself an example. As the Court recognized in Obergefell, stable marriages produce social benefits, not least a loving secure environment for raising children who become responsible productive citizens. Thus, recognition of the right to same-sex marriage not only does not harm people who oppose same-sex marriage; it affirmatively benefits them.

Expanding the circle of right-holders in other ways can also benefit existing right-holders who might think of themselves as harmed by that expansion. Consider the case of Happy, an Asian elephant who was held captive by the Bronx Zoo and on whose behalf the Nonhuman Rights Project brought a habeas corpus petition. Predictably, the lawsuit failed, with the majority opinion of the New York Court of Appeals expressing a fear of zero-sum consequences of extending rights to any nonhuman animals. “Granting legal personhood to a nonhuman animal,” the court said, “would have significant implications for the interactions of humans and animals in all facets of life, including” the many ways in which humans exploit other animals for food, fiber, and more.

The court was correct about the potential disruption, but it was too hasty in its conclusion that forgoing animal exploitation would be bad for humans. Animal agriculture is a leading contributor to global warming and water pollution, as well as diseases associated with unhealthy diets. Rights for elephants and other animals would necessarily restrict the freedom of humans, but they would enhance human wellbeing.

To be sure, this sort of argument is always available in principle. Perhaps the Alabama Supreme Court would say that we are all better off living in a world in which every embryo is sacred. But saying so doesn’t make it so. Good luck explaining how the prospective parent who is denied the opportunity to conceive, gestate, birth, and raise a child by the closing of fertility clinics will experience a net benefit from knowing that some number of microscopic frozen embryos with nothing resembling subjective experiences will not be discarded.

In the end, whether rights are zero-sum or win-win is the wrong question. The law recognizes rights because they protect underlying interests and values deemed too important to be subjected to the ordinary weighing of costs and benefits. For example, in U.S. constitutional law, rights cannot be overridden by a simple judgment that countervailing goals prevail: only “compelling” interests can override rights and then only when the government uses the “least restrictive means.”

Thus, the core problem with the Alabama Supreme Court opinion in LePage is the obvious one: although prospective parents have a very strong interest in preserving frozen embryos they might one day use to create a child, until they do so and gestate the embryos into a being with some subjective experiences, the embryos themselves lack interests—unless one accepts the highly contested religious view that the Alabama Supreme Court would impose on all of the state’s residents.

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