Putting Dobbs on Ice: Defending the Right to Destroy Frozen Embryos Using the Takings Clause
When the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, calls flooded into fertility centers. People of reproductive age panicked, concerned that new abortion trigger bans could subject them to criminal liability for destroying their frozen embryos post-IVF. This concern came to a new head in February 2024, when the Alabama Supreme Court ruled that embryos were persons under a wrongful-death statute and found that individuals could be liable for destruction of or damage to embryos. National outcry was immediate, with conservatives, progressives, and reproductive healthcare providers alike condemning the decision. While Alabama’s state legislature ultimately abrogated the decision, Republican legislators across the country continue to introduce “fetal personhood” bills that threaten IVF. This Note responds to fetal personhood statutes by exploring whether the Fifth Amendment Takings Clause prevents states from interfering with frozen embryos without just compensation. This Note grounds its defense of IVF in property law and the Takings Clause, a doctrine favored by legal conservatives. While other scholars have explored property-based defenses to abortion, this Note is one of the first to engage in a doctrinal analysis of Takings Clause jurisprudence to defend IVF. This Note also explores bioethics scholarship to discuss the moral and ethical dangers of recognizing a compensable property interest in embryos. It concludes with the observation that although property law defenses to reproductive healthcare have their risks, advocates must consider every tool in the toolbox to protect reproductive rights in the United States.
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