A Freezer Chest Of Frozen Embryos: ‘Men And Women Of Good Conscience Can Disagree’

The hypothetical: A medical office building is on fire. One of the ground-floor suites is occupied by an assisted reproduction clinic, where there is a woman who has fallen and badly injured her leg next to a hand cart with a freezer chest containing 100 frozen embryos. The woman cries out to me for help. I rush in and quickly realize that I can either rescue the woman or wheel out the hand cart with the frozen embryos before the fire destroys the clinic.

Justice Alito’s majority opinion Dobbs v. Jackson Women’s Health (Dobbs) immediately generated a storm of controversy and criticism. As Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor wrote in dissent, Justice Samuel Alito’s extraordinarily narrow view of the Constitution’s protection of individual liberty and a constitutionally protected private sphere is a potential threat to “freedoms involving bodily integrity, familial relationships, and procreation.”

While I completely agree with the dissent in Dobbs, in this essay I focus on the full version of the quotation in the title of this essay, found on page 30 of Justice Alito’s opinion (quoting the US Supreme Court’s earlier decision in Planned Parenthood of Southeastern Pa. v. Casey) and the implications of that quotation for religious freedom: “Men and women [Persons] of good conscience can disagree…about the profound moral and spiritual implications of terminating a pregnancy even at its earliest stage.”

Justice Alito’s opinion asserts that since the Constitution does not expressly protect the right to abortion, and persons of good conscience might disagree about the issue (discussing the Court’s binary division of all persons into men and women is beyond the scope of this essay), then states are free to legislate in accordance with their sense of their citizens’ preference. Different religious traditions indeed have varying moral and spiritual beliefs about whether or not abortion is permissible, but federal and state Religious Freedom Restoration Acts (RFRA)—including that of Mississippi—provide that state laws may not burden persons’ exercise of their religious beliefs without a compelling justification. If persons of good conscience might disagree about the “moral and spiritual” implications of terminating a pregnancy, it would seem that the state’s decision to favor one side of that issue could not be a compelling justification for burdening the religious observance of those who disagree, particularly where the underlying issue is wholly a matter of religious doctrine.

I began this essay with a hypothetical that may put in stark context our differing views about the spiritual implications of the choice between preserving embryos and the life of a recognizable person. Although my hypothetical asks the reader to choose between an injured woman and ex-vivo embryos, rather than a pregnant woman and the embryo or fetus within her, good legal hypotheticals force us to be careful about our analyses by asking us to consider the issue in its most extreme formulation. Lest anyone think that the hypothetical is too extreme and too far removed from the issues raised in Dobbs, the Dobbs decision has encouraged anti-abortion legislators in a number of states to introduce “fetal personhood” statutes. State Representative Danny McCormick of Louisiana proposed a bill, HB 813, that would have amended Louisiana law to clearly define a “human being” for purposes of Louisiana criminal law as an “unborn child at all stages of development prior to birth from the moment of fertilization,” removing from Louisiana law even the requirement of implantation. If that bill had passed, our hypothetical clinic fire would raise the possibility of 100 counts of negligent homicide against anyone whose lack of care led to the fire or even led to a power outage that caused the clinic’s embryos to become nonviable.

I divide my examination of the reasons that persons of good conscience might disagree into three parts: first, disagreements about facts which have been established by science or could be clearly resolved by science; second, disagreements based on either of the two primary philosophical systems for moral or ethical reasoning in the public sphere, Kantian autonomy and utilitarianism; and third, disagreements based on divergent “spiritual”/religious traditions. I conclude that the disagreements cannot be based on disputes about science or secular or philosophy-based ethics or morality, but very clearly can only stem from divergent religious traditions. Allowing public policy to be based entirely on one religious tradition cannot serve as the compelling state interest necessary to justify infringing on actions that are based on religious beliefs and obligations. Therefore, Religious Freedom Restoration Acts would protect those health care providers (such as Jewish physicians, among others) whose religious traditions obligate them to offer to terminate the pregnancy of a woman whose health might be endangered by its continuation.

Science

Justice Alito purports to avoid the question of when states “should regard pre-natal life as having rights or legally cognizable interests.” However, in choosing the term “pre-natal life” Justice Alito shares the belief that is common among abortion opponents that there is a precise stage in pre-natal development when it is a scientific fact that the embryo or fetus is human life. For example, Professor of Law Michael Stokes Paulsen wrote, “It is a matter of rudimentary scientific knowledge that human life begins at conception.” But even the definition of “life,” let alone “human life,” is not a matter of rudimentary scientific knowledge.

Science cannot provide a definition of life or human life. It can provide an answer whether or not biological material is “human,” but not whether biological material––a cell line, a sperm cell, or an embryo––is alive and therefore “human life.” While we might all agree that a post-natal infant that is breathing outside the womb is alive (which is the earliest that the common law permitted the charge of homicide), science cannot resolve the question of whether or not to apply the category of “life” in the context of brain death, or permanent dependence on “life support,” or a fetus attached to an umbilical cord. At best, science can only answer questions about whether or not a given object of study does or does not meet criteria that we, persons of good conscience of diverse moral traditions, might suggest are the relevant characteristics of life, whether those characteristics are “viability,” the ability to experience pain, or some degree of homology to a reference human genome.

In 1981, when a Senate subcommittee was considering a bill to define life as beginning at conception, pioneering geneticist Leon Rosenberg, MD, told the subcommittee, “Don’t ask science or medicine to help justify that course, because they cannot. Ask your conscience, your minister, your priest, your rabbi, or even your god, because it is in their domain that this matter resides.” Worlds apart (so to speak) from the debate over abortion, in the context of the search for life on other planets, philosopher Carol Cleland and astrobiologist Christopher Chyba wrote, “All [attempts by scientists to define life] typically face important problems, in that they include phenomena that most are reluctant to consider alive, or exclude entities that clearly are alive.” The likely-to-be-chosen definitions of life for astrobiologists (independently viable or self-sustaining, and so forth) would clearly exclude an embryo or fetus and raise terrible problems if we choose to apply them to human beings who are dependent on life support or so severely disabled that they do not develop capacities beyond that of an infant. That serves to underscore the testimony of Dr. Rosenberg that we cannot ask science or medicine to define life.

Philosophical Reasoning

Justice Alito’s use of the phrase “moral and spiritual” suggests a division between non-religious moral reasoning and religiously derived spiritual reasoning, which is generally attributed to divine authority or revelation. Non-religiously derived moral reasoning is commonly based on values such as individual autonomy or dignity (a Kantian framework) or greater overall satisfaction or welfare (a utilitarian framework). For example, in the field of health policy, both Kantian respect for autonomy and utilitarian risk/benefit or cost/benefit analyses are used as guides. Thus, the Food and Drug Administration (FDA) uses a risk/benefit calculation in deciding whether or not to approve a drug, but Kantian respect for patients’ autonomy requires patients to provide informed consent to administer it. It is not surprising that the ethical status of embryos has generated significant discussion among philosophers, in the context of a woman’s right to terminate her pregnancy and in the context of embryonic stem cell research. Much of that discussion has focused on Kant.

Kant’s masterpiece, A Critique of Pure Reason, runs many hundreds of densely written pages. However, the complexity of Kant is in his painstaking derivation of his conception of the good, not in his conclusion, which is quite straightforward: Respect others’ autonomy; that is, their capacity to make their own choices and live their own lives for their own reasons and according to their own values. Attempts to base arguments against abortion on Kant’s moral philosophy immediately confront the problem of assigning moral agency or autonomy to an embryo or fetus. We routinely accept the substituted health care decisions of others for persons who cannot express their own will, such as those who are unconscious or suffer from dementia, and who have not previously provided instructions for their care. In the case of a fetus, the right of the person carrying the fetus to make decisions about their own health care and that of the fetus is the moral agency that must be respected.

Some anti-abortion advocates, such as R.M. Hare, attempt to circumvent the obvious lack of agency in the developing fetus by positing that we can substitute the views of existing persons about whether or not they would have wished to be aborted or are glad they were not. Lara Denis provides a devastating critique of the incoherency and general failure of such efforts to provide a Kantian argument against abortion.

Even if anti-abortion advocates cannot support prohibiting abortion on a Kantian moral argument, that does not resolve the utilitarian issue of the relative value (or possibly equal value) of fetal and post-natal life presented by Dobbs or my hypothetical. A utilitarian evaluation of abortion runs into the problem of acknowledging that embryos cannot feel pain or experience loss (which poses problems for those who would prefer an absolute prohibition on abortion). Although there is some uncertainty as to precisely when a fetus is able to experience pain, it is widely held to be late in pregnancy, well past the point at which almost all abortions are performed. So, on a utilitarian scale, in my hypothetical the pregnant woman would seem to be the only person whose welfare should be considered.

But what about the empathic pain of the abortion facility protesters who are holding “baby killer” signs? How do we weigh their obviously genuine pain in a utilitarian calculus? The pain of others can be considered in my hypothetical. Each of those embryos may represent someone’s desperate hope for biological parenthood. Each of those embryos is, if not a human life, a “potential” human life, and arguably that potential life has some value. But what value? I can imagine that I am at the clinic because I am a client and that some of those embryos represent my only chance at biological parenthood and are my “potential” children. I would save the woman. Her pain would be what matters most to me. Louisiana State Representative McCormick might well choose to save 100 embryos and leave the woman behind.

What if a state attempts to justify a ban on abortion from the earliest stages by asserting that it has an interest in protecting potential lives? There are two problems with using the value of potential life to justify abortion bans. The first is quite simply the value of potential life in secular, non-religious terms. An economist might look to markets for egg donors or even embryo donors in an effort to calculate market values for various forms of “potential lives”; one could then compare those values with economic models for valuing the lives of post-natal persons in economic terms, such as the “value of a statistical life” used by government agencies, to determine the relative values of an embryo and a person of child-bearing age. However, state legislators introducing abortion bans would never embrace any such calculation, as those would clearly place a much lower value on an embryo than a post-natal person.

The second problem faced by the “potential life” rationale for abortion bans is that it creates a host of other problems, from the status of frozen embryos to the use of intrauterine devices or other contraceptive measures that act by preventing implantation. It is not irrational to place a value on potential life, but there is no objective way to do so that avoids the market valuation problem and without threatening access to assisted reproduction, among other problems. Increasing public welfare is always a legitimate state interest, but utilitarian efforts to maximize public welfare clearly do not require, or even point to, a decision to place the welfare of the embryos above that of the pregnant woman. Instead, state laws that place an equal value on embryos and post-natal humans raise the question of what could inform such a valuation other than religion.

Religion

This brings us to the last part of Justice Alito’s statement, which asserts that persons of good conscience can disagree about “the moral and spiritual implications” of the status of embryos and fetuses. Disagreements about abortion among reasonable persons are not based on science or Kantian or utilitarian morality but are disagreements about the “spiritual implications” of abortion and diverse religious traditions. Justice Alito’s reference to moral and spiritual implications can only obscure the meaning of “spiritual”: relating to deep feelings and beliefs, especially religious beliefs. What Justice Alito would like to avoid is acknowledging that the only purpose served by the statute at issue is to enforce a particular religious view about human life, rather than a dispute about welfare maximization or Kantian autonomy.

Courts frequently are called upon to adjudicate disputes that are rooted in utilitarian or Kantian justifications. When the D.C. Circuit Court of Appeals ruled against a desperate cancer patient who wished to circumvent the FDA’s authority to prevent the distribution of unapproved drugs, it faced a dispute with significant utilitarian and Kantian consequences. The court found that overall public welfare was increased by the FDA’s process for drug approval and accelerated access, overriding the patient’s autonomous interest in access outside of the FDA’s process. The issue here is whether or not a utilitarian or Kantian argument can be used to assert a compelling state interest under RFRA, rather than merely a rational basis (which is all that is required absent a constitutionally protected right). It is clear that state laws banning abortion cannot be justified in utilitarian or Kantian terms but instead adopt a particular religious view of abortion and human life. Any attempt to find a non-religious justification such as “potential life” has at best a rational basis in asserting that potential human life has some value but no rational basis in asserting a particular value.

Conclusion

If, as Justice Alito declares, reasonable people of good conscience can disagree about the status of pre-natal “life,” those disagreements are not based on science, nor on concern for autonomy; nor on increasing public welfare. Disagreements about abortion are disagreements rooted in religion. The religious views of those who oppose abortion are those of persons of good conscience, just as the religious views (or the rejection of all religious views) of those who favor a woman’s welfare are those of reasonable persons of good conscience. The question presented by Dobbs is not whether the Constitution speaks directly to the issue of abortion; it does not. It does, however, speak directly to the issue of religion. If a state’s determination that human life begins at any particular point in development adopts one religious tradition and proscribes other religious beliefs, then it raises grave concerns.

Apart from the First Amendment concerns raised by state laws favoring a religious view of abortion, concerns about infringing upon the free exercise of diverse religious traditions led to the enactment of state and federal RFRAs. These statutes are intended to protect religious objectors against state laws that infringe their religious observance absent a compelling state interest in prohibiting those practices. RFRA’s protection of action driven by sincere religious belief even extends to the obstetrical practices of Catholic hospitals that imperil women’s lives or conflict with ordinary standards of medical care, despite a very clear and strong interest in saving women’s lives.

So, in the post-Dobbs era, how should a court analyze the application of the Mississippi statute to a physician whose religious beliefs place the welfare of her pregnant patient above that of a fetus and whose patient seeks an abortion? The task for a court analyzing a RFRA claim is to determine whether or not the state law that the defendant claims infringes her ability to exercise her religion is the least restrictive means to promote a compelling state interest, or merely has a rational basis. There is no magical formulation for ascertaining whether or not a state interest is a compelling one––compelling interests can be found either through a utilitarian public welfare analysis or on the basis of Kantian personal autonomy. Courts frequently are called upon to adjudicate disputes that are rooted in utilitarian or Kantian justifications: As noted above, when the D.C. Circuit Court of Appeals denied a cancer patient the right to circumvent the FDA’s authority to prevent the distribution of unapproved drugs, it found that overall public welfare was increased by the FDA’s requirements, which generates valuable information about the safety and efficacy of new drugs and guards against the huckstering of snake oil remedies. This utilitarian justification was sufficient to override the patient’s autonomous interest in access outside of the FDA’s process.

The issue for religious exemptions to an abortion ban is whether or not there are utilitarian or Kantian purposes for banning abortion that would support the conclusion that there is compelling state interest exists under RFRA, rather than merely a rational basis (which is all that is required absent a constitutionally protected right). It is clear that state laws banning abortion cannot be justified in utilitarian or Kantian terms but instead embrace a particular religious view of abortion and human life. Any attempt to find a non-religious justification such as “potential life” has at best a merely rational basis in asserting that potential human life has some value, but no rational basis—let alone a compelling interest—in asserting a particular value that outweighs the interest in protecting religious observance.

In Jewish law, physicians are absolutely obligated to offer to protect a mother’s life over that of a fetus. At least one lawsuit by a Jewish group asserting a RFRA-based exemption from the Florida abortion law has already been filed. Texas, Mississippi, and many of the other states that are moving to adopt abortion restrictions that promote the interest of the majority of their religiously motivated voters would undoubtedly be disappointed to find that their RFRA statutes could be invoked to protect women whose religious beliefs differ. RFRA statutes would also protect health care providers whose religious beliefs obligate them to offer to terminate the pregnancy of any woman whose health or well-being might be endangered by its continuation. This would properly leave the decision as to whether or not to continue the pregnancy or protect their own well-being to their patients and their consciences.

Author’s Note

This hypothetical at the beginning of this essay was first proposed to me by my son, Nathaniel Ross Bohrer. In his original form, the choice that has to be made is between a baby and the embryos. That variation of the hypothetical is just as difficult and well worth considering. I would like to acknowledge the helpful comments I received on this essay from participants in the Fourth Annual Biolawlapalooza Conference at Stanford Law School and the 2022 American Society for Law Medicine and Ethics Health Law Professors Conference.

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