IVF in Alabama: The Right Policy Won for the Wrong Reason

Sometimes it takes hysteria to beat hysteria.

Refusing to trust mainstream media is a heavy burden. Even when you think you’re listening with due skepticism, you often end up swallowing simple-minded propaganda as fact. Case in point: the recent IVF battle in Alabama. After blithely swallowing the standard story, I came across the Atlantic’s revisionist account, written by AEI’s Yuval Levin and O. Carter Sneed of the Notre Dame Law School. The Levin-Sneed correction:

The case had essentially nothing to do with abortion. Three families pursuing IVF sued their clinic after another patient apparently wandered into the facility’s freezers without the staff realizing it and picked up a container of embryos. The extreme cold burned that person’s hand, causing them to drop the container onto the floor, which killed all of the embryos it held. The families contended that this amounted to negligence on the part of the clinic that had led to the wrongful death of their embryos, and brought a civil claim under Alabama’s Wrongful Death of a Minor Act. The law has long been interpreted as applying to events that cause the death of a pregnant woman’s unborn child, regardless of that child’s gestational age. By the same logic, the families insisted, it should also apply to their embryonic children.

Perusing Google Scholar, Yevin and Sneed seem to be correct. Granted, Alabama previously acknowledged exceptions for non-viable fetuses. Yet crucially, even when Roe versus Wade was the law of the land, Alabama law has long allowed parents to sue for the death of an unborn child. Contrary to the standard story, there was no slippery slope from Dobbs to Alabama’s ruling on IVF.

Levin and Sneed go on to claim that severe misconceptions about the case swiftly caused bad policy decisions:

[I]n response to the widespread distortions of the case in the national media and to threats from clinics in the state to stop providing IVF treatments, the state legislature exempted the industry from (and thereby denied the families it serves) even the basic consumer protections available in every other domain, let alone the sorts of guardrails that should be available when vulnerable parents and children are involved.

The legislature quickly and overwhelmingly passed (and the governor immediately signed into law) a bill that created blanket civil and criminal immunity for any person or entity who causes “damage to or death” of an embryonic human being when “providing or receiving services related to in vitro fertilization.” In its haste, the legislature created a bizarre anomaly. No other branch of medicine, and no other facet of the health-care industry, enjoys such freedom to act with impunity.

The Levin-Sneed assessment:

The result was perverse but painfully familiar: Policy makers, practitioners, and political activists purporting (and in many cases genuinely intending) to act in the name of vulnerable parents and children instead only advanced the interests of an already-sheltered industry, and left a fraught and sensitive domain of our society even more exposed and unprotected.

While I appreciate Levin and Sneed’s portrait of political hysteria, their economic analysis is sadly demagogic. To assert that giving blanket immunity to IVF “only advanced the interests of an already-sheltered industry” is nonsense.

Why? Econ 1! Anything that reduces costs increases supply, anything that increases supply reduces prices, and anything that reduces prices helps consumers. Indeed, in a competitive industry, all of the benefits of lighter regulation ultimately go to consumers, because super-normal profits attract entry until prices fall all the way down to average costs.

Demagogues hate these elementary truths, because they expose all so-called “consumer protection” as questionable. At best! Key point: Even if consumer protection laws successfully raise quality, the extra quality predictably costs more than it’s worth. Laissez-faire allows consumers to decide for themselves whether they value the extra quality more than the upcharge, while regulation makes everyone to pay the upcharge whether they want to or not.

With these insights in mind, let’s run through Levin and Sneed’s complaints.

1. They lament the absence of “basic consumer protections available in every other domain.” Sure, but the right conclusion is not that we should treat IVF like other industries, but that we should treat other industries like IVF.

2. They lament the lack of “guardrails that should be available when vulnerable parents and children are involved.” The “vulnerability” that most matters is that IVF is currently so expensive that (a) many families can’t afford it, and therefore (b) many children don’t get to exist. So-called guardrails amplify these problems by making IVF even more expensive. The other “vulnerabilities” are rounding errors by comparison.

3. “No other branch of medicine, and no other facet of the health-care industry, enjoys such freedom to act with impunity.” Note: There’s no law against IVF providers voluntarily offering reassurances to customers. The rarity of such practices is a strong sign that the cost of such “protections” to business exceeds the benefit to consumers. The paternalist could insist, of course, that patients are foolish to take their chances. But more likely it is the paternalists who are foolish to prize the dubious option to bring medical complaints to our dysfunctional legal system.

I agree with Levin and Sneed that the media coverage of Alabama’s IVF ruling was hysterical. And I’m the first to admit that hysterical policy-making is normally bad. Yet this time around, the hysteria of the week fortuitously managed to overpower the long-standing hysteria in favor of consumer protection laws. Alabama’s legislature and governor made the right decision for the wrong reason. Less than ideal, but anyone with fertility issues — not to mention their children — should still give thanks.