Dov Fox, University of San Diego School of Law, and Mary Ziegler, University of California, Davis School of Law, have posted The New Abortion, which is forthcoming in the Columbia Law Review:
In vitro fertilization presents a neglected puzzle. IVF is used to create one in fifty babies born in the U.S. each year. Yet it remains deeply underregulated and has rarely been subject to political wrangling. Courts and commentators assume the regulatory vacuum around assisted reproduction owes to the singular polarization of abortion in the United States. But for half a century, the fate of these practices could not have been more different: contrast the state’s hands-off approach to IVF with vast constraints on abortion, marked by explosive partisan battles. Only since Roe’s fall has IVF become a culture war flashpoint—in roiling controversies over state restrictions, the Right to IVF Act in Congress, and the 2024 Alabama Supreme Court case treating embryos as persons. IVF’s sudden emergence as a site of intense contestation and social-movement struggle is what we call the new abortion.--Dan Ernst
This Article resolves the enduring mystery of IVF’s longstanding retreat from public discourse and its abrupt appearance on the national scene. It presents the first-ever legal history of the relationship between IVF and abortion. We chronicle and synthesize the political and regulatory dynamics they pose for family, faith, race, sex, gender, science, medicine, and technology, drawing on original archival research in three privately held collections, two historical societies, four universities, and the Library of Congress. This untold story reveals how IVF’s regulatory impasse collapsed in the aftermath of Roe’s reversal, exposing crumbling barriers to compromise and surprising patches of common ground in the wake of escalating conflicts around abortion. Our history also uncovers a historically informed path to meaningfully regulate IVF’s legality, access, licensing of clinics, and transparency about mishaps.
