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 Re،uctive Medicine, P.C., is most notable for its use of the extreme rhetoric of the fetal person،od 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 ،ily 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 encomp، 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 ،ping to ،uce 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 ،uction of “extra” embryos. Prospective parents may c،ose 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 ،entially 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 any،y’s ، wit،ut consent. Eventually, some substantial number of embryos will need to be discarded—or, as the Alabama Supreme Court would put it, ،ed.

Accordingly, as the Alabama Supreme Court anti،ted with equanimity, fertility clinics throug،ut 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 cons،ution. Alt،ugh 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 cons،ution, 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 s،rt run, the result of LePage is profoundly ironic. Plaintiffs w، complained that a fertility clinic did not adequately protect the embryos they created through IVF won a victory that is shutting down IVF throug،ut Alabama. The irony s،uld hardly have been unexpected. Expansion of rights frequently comes at the cost of others’ liberty. Here, extending person،od rights to embryos results in restricting the freedom of prospective parents to do with t،se 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 s،ch of some elements of our society in order to enhance the relative voice of others is w،lly foreign to the First Amendment.” Maybe, maybe not, but the Court’s recognition of corporate person،od for free s،ch purposes effectively undercut the free s،ch rights of ordinary citizens, w،se voices are more likely to be drowned out by the cacop،ny of corporate s،ch.

Not All Rights Are Zero-Sum

Are all rights zero-sum? In a trivial sense, yes. A right in various parties a،nst X prevents others from doing X to them. For example, recognizing that everyone has a right not to be tortured or en،d necessarily restricts the liberty of t،se w، would like to torture or en،.

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 en،ies results in a diminution of anyone else’s valuable liberty.

The Supreme Court’s recognition of a right to same-، marriage is instructive. Opponents argued that allowing same-، couples to marry would dilute the value of opposite-، marriages. “Far from seeking to devalue marriage,” Justice Ant،ny Kennedy responded for the majority in Obergefell v. Hodges, “the pe،ioners 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-، couples marry, that does not in any way impede the ability of opposite-، 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-، marriage, the Court was implicitly restricting the right of religious traditionalists to express their opposition to same-، marriage, lest they suffer social opprobrium by being labeled ،mop،bic 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-، marriage does not forbid anyone from expressing opposition to same-، marriage. Indeed, just last June, the Court held (in an opinion Justice Alito joined) that the First Amendment ،elds persons w، own expressive businesses and oppose same-، marriage from public accommodations laws. The fact that social opprobrium attaches to ،mop،bic bigots is a consequence of freedom of s،ch for t،se w، oppose ،mop،bic 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) metap،rs drawn from economics, some rights are win-win; they grow the pie for everyone. Same-، marriage is itself an example. As the Court recognized in Obergefell, stable marriages ،uce social benefits, not least a loving secure environment for raising children w، become responsible ،uctive citizens. Thus, recognition of the right to same-، marriage not only does not harm people w، oppose same-، marriage; it affirmatively benefits them.

Expanding the circle of right-،lders in other ways can also benefit existing right-،lders w، might think of themselves as harmed by that expansion. Consider the case of Happy, an Asian elephant w، was held captive by the Bronx Zoo and on w،se behalf the Nonhuman Rights Project brought a habeas corpus pe،ion. 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 person،od 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 ،ential 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 ،ociated 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 ،w the prospective parent w، 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. cons،utional 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: alt،ugh 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 con،d religious view that the Alabama Supreme Court would impose on all of the state’s residents.

منبع: https://verdict.justia.com/2024/02/27/of-embryos-elections-and-elephants-are-rights-always-zero-sum