Baptists, Bootleggers, and IVF in Alabama

Did the Alabama legislature's response to a controversial state supreme court decision give a special interest special treatment?

Policy change is often the result of disparate political coalitions. Not all who support a change necessarily support that change for the same reason. Sometimes, political support for legislative change is the result of a "baptists and bootleggers" coalition–a coalition of those who support the change on normative grounds and those who hope to make a buck.

Economist Bruce Yandle coined the phrase. Here is his explanation of the theory:

Durable social regulation evolves when it is demanded by both of two distinctly different groups. "Baptists" point to the moral high ground and give vital and vocal endorsement of laudable public benefits promised by a desired regulation. Baptists flourish when their moral message forms a visible foundation for political action. "Bootleggers" are much less visible but no less vital. Bootleggers, who expect to profit from the very regulatory restrictions desired by Baptists, grease the political machinery with some of their expected proceeds. They are simply in it for the money.

The theory's name draws on colorful tales of states' efforts to regulate alcoholic beverages by banning Sunday sales at legal outlets. Baptists fervently endorsed such action on moral grounds. Bootleggers tolerated the actions gleefully because their effect was to limit competition.

It is worth noting that it is the details of a regulation that usually win the endorsement of bootleggers, not just the broader principle that may matter most to Baptists. Thus, for instance, bootleggers would not support restrictions on the Sunday consumption of alcoholic beverages, although Baptists might. Bootleggers want to limit competition, not intake. Important to the theory is the notion that bootleggers can rely on Baptists to monitor enforcement of the restrictions that benefit bootleggers.

Professor Andrew Morriss suggests that we may have seen this dynamic in action in the Alabama legislature's response to LePage v. The Center for Reproductive Medicine, P.C., the Alabama Supreme Court decision concluding that frozen embryos constitute "children" for purposes of Alabama's Wrongful Death of a Minor Act, thereby making an IVF clinic potentially liable for the "wrongful death" of a frozen embryo.

On March 6, just two-and-a-half weeks after the Alabama court's opinion was released, the Alabama legislature passed and Gov. Kay Ivey signed sweeping legislation immunizing IVF clinics from liability, stating that "no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization." . . . However, as the only member of the Alabama Senate to vote against the bill accurately noted, the statute is "not an IVF protection bill, it's an IVF provider and supplier protection bill" that is "limiting the ability of the mothers that are involved in IVF to have recourse" when their embryos were destroyed by clinics. . . .

In using the decision in LePage to obtain immunity from tort suits, reproductive medicine clinics played the role of the regulatory bootleggers. Asking for absolute immunity from suit for negligence in handling embryos—embryos whose parents are likely to feel strongly about them—isn't something for which many legislators would likely be sympathetic. After all, medical professionals, clinics, and hospitals are liable in tort for medical malpractice. Fertility clinics thus had a problem in explaining why they should get special treatment compared to other medical facilities and professionals. And negligence does occur in these clinics. A 2020 survey article in Fertility & Sterility Reports found 133 cases filed between January 2009 and June 2019 that credibly alleged the negligent destruction of cryopreserved embryos. . . .

Morriss suggests that misleading media reports may have contributed to the outcome. Contrary to some accounts, the Alabama Supreme Court was focused on the meaning of specific terms in a specific statute, not making a broad announcement about the legal status of embryos, let alone criminalizing their destruction or limiting reproductive rights more broadly.

The media's account of the majority opinion in LePage misrepresented it as an attack on IVF, a procedure that has enabled thousands of families (including my own) to grow through the miracle of the creation of life. As amazing as this technology is, it is still a medical procedure that involves the risk of negligence. Negligence can serve as the basis of a claim for damages. The question the media avoided, and that the panic they induced enabled the clinics to avoid, was "Why should IVF be treated differently?" As Levin and Snead noted, "The Alabama legislature could have responded to the state supreme court's decision by using the alleged egregious negligence of the clinic in question as an occasion to establish some rules for the practice of fertility treatment, including the creation, use, and storage of living human embryos." Instead, it granted blanket immunity to clinics. That is a failure of governance.

If the plaintiffs in LePage go to trial against the clinic involved, we will learn how it came to be that someone was able to wander into the embryo nursery, remove embryos from the cold storage unit, and destroy them. It is plausible that this was the result of negligence on the part of the clinic. At a minimum, there was deficient control of access to the nursery, including a lack of reasonably simple protective measures (door and freezer locks). Requiring simple controls on access to frozen embryos is not a crushing burden that will end the availability of IVF. Instead, immunizing IVF facilities from tort liability removes the powerful incentives provided by tort law, incentives that push most medical professionals in America to meet professional standards of care. The tragedy of LePage is that all but one of the institutions involved—the media, the Alabama legislature, and the Governor—fell for the special-interest regulatory Baptists' rhetoric and failed to stand up to the regulatory bootleggers. Only the Alabama Supreme Court focused on the real issue. As a result of the other failures, there will be more tragedies but without the potential that future parents of negligently destroyed embryos will be compensated for their injuries.