What Dobbs has wrought, and will
The trolley problem is a classic thought experiment in ethics:
There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice that there is one person on the side track.
What would you do? What should you do?
Three years ago, The New Yorker ran a piece about what a driverless car might do in a similar situation. What if the one person was very old? Or fat or thin? Or from a racial minority? What would people from different cultures do? Now, how do we want a driverless car to choose?
We cannot even decide as a culture, I wrote at the time, whether or not it is moral to torture prisoners or cage migrant babies snatched from the arms of their mothers or let people die because they cannot afford health insurance. So, defining the ethics of self-driving cars should be no problem at all, right? And who is to be responsible for the design?
Today, the overturning of Roe has, Jeet Heer observes, opened a Pandora’s Box of ethical and legal issues, “unleashing monsters which will make life hell for countless women.” (It’s all a woman’s fault, naturally.) So in states’ rush to re-prohibit abortion, who is responsible for cleaning up the fallout from the Dobbs decision?
An ex-husband accuses his then-wife and her doctor of violating Arizona’s informed consent law over an abortion four years ago. “A judge allowed the woman’s ex-husband to establish an estate for the embryo, which had been aborted in its seventh week of development, writes Nicole Santa Cruz for ProPublica:
Across the U.S., people have sued for negligence in the death of a fetus or embryo in cases where a pregnant person has been killed in a car crash or a pregnancy was lost because of alleged wrongdoing by a physician. But a court action claiming the wrongful death of an aborted embryo or fetus is a more novel strategy, legal experts said.
The experts said this rare tactic could become more common, as anti-abortion groups have signaled their desire to further limit reproductive rights following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. The Arizona lawsuit and others that may follow could also be an attempt to discourage and intimidate providers and harass plaintiffs’ former romantic partners, experts said.
Lucinda Finley, a law professor at the University at Buffalo who specializes in tort law and reproductive rights, said the Arizona case is a “harbinger of things to come” and called it “troubling for the future.”
Finley said she expects state lawmakers and anti-abortion groups to use “unprecedented strategies” to try to prevent people from traveling to obtain abortions or block them from obtaining information on where to seek one.
By people, Finley means women.
The Texas vigilante statute that allows third-parties to sue women who seek abortions (and anyone who assists them) is “much bigger than these wrongful death suits,” says Finley.
The Arizona case is a trial balloon to see how far the enemies of reproductive rights “can push the limits of the law, the limits of reason, the limits of science and medicine,” says Civia Tamarkin, president of the National Council of Jewish Women Arizona.
“Personhood” statutes and laws recognizing legal rights for the unborn opened the door to the Arizona lawsuit.
It’s unclear how many states allow an estate to be opened on behalf of an embryo or fetus. Some states, like Arizona, don’t explicitly define what counts as a deceased person in their probate code, leaving it to a judge to decide. In a handful of states, laws define embryos and fetuses as a person at conception, which could allow for an estate, but it’s rare.
For now. Expect that door to be wedged open wider.
As states determine what is legal in the wake of Dobbs and legislators propose new abortion laws, anti-abortion groups such as the National Right to Life Committee see civil suits as a way to enforce abortion bans and have released model legislation they hope sympathetic legislators will duplicate in statehouses nationwide.
“In addition to criminal penalties and medical license revocation, civil remedies will be critical to ensure that unborn lives are protected from illegal abortions,” the group wrote in a June 15 letter to its state affiliates that included the model legislation.
The laws surrounding in vitro fertilization (IVF) and assisted reproductive technology (ART) are next up for threats of lawsuits targeting even women who do not seek abortions Slate reports:
Fertilizing eggs in a Petri dish often results in extra embryos, which are usually frozen. And preimplantation genetic testing, or PGT, is performed on more than 40 percent of embryos before they are transferred into the uterus. Leftover embryos are frequently discarded or donated to research after patients have completed procreation or PGT detects genetic abnormalities. In some abortion-restrictive states, this may not be possible. Louisiana defines “a viable in vitro fertilized human ovum” as a “juridical person which shall not be intentionally destroyed,” and at least five states have introduced bills establishing fetal personhood. If such laws apply to embryos outside the womb, they might prohibit embryo destruction, donation of embryos to research, and maybe even embryo freezing. Even if states do not ban IVF outright, they may limit, as some countries have done, the number of embryos that can be created to prevent embryo destruction. All of this would make IVF and PGT much more difficult and expensive than they already are.
About 30 years ago, I heard in a Paul Harvey noontime program about a millionaire couple in California that perished when their private plane crashed. The childless couple had been trying to get pregnant through in vitro fertilization. The “heirs” to their fortune were frozen at the clinic. As Harvey told it, selfless women began coming forward to volunteer to carry the little dears to term for a piece of the action.
Technology chronically outruns our laws and ethics. Some people’s need to control and punish women does as well.
We are not getting any better at this.
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