Moody v. Net Choice and Net Choice v. Paxton: The Future of Online Content Moderation

By: Matthew Vega

Edited by: Isabel Niemer and ISabel Gortner

On February 26th, the Supreme Court heard oral arguments for Moody v. Net Choice, LLC and Net Choice, LLC v. Paxton, both of which were cases involved with content moderation laws protecting conservative speech in Florida and Texas, respectively. The Supreme Court is expected to release its decisions by the summer, which will determine whether the content moderation restrictions in Florida S.B. 7072 align with the First Amendment and whether the law's requirements for individualized explanations also adhere to First Amendment principles in the case of Moody v. Net Choice.[1] The Supreme Court will also decide whether the provisions of Texas HB 20, which prohibit social media platforms from censoring users' content and impose strict disclosure requirements, violate the First Amendment in the case of Net Choice v. Paxton.[2] 

The Supreme Court did not have many cases to use as precedent for social media speech regulation, instead basing most of their arguments on cases involving other kinds of speech, such as Miami Herald v. Tornillo which held that the government cannot force newspapers to print replies from candidates they criticize, as it would infringe upon the newspaper's editorial discretion and right to control its content, giving the press the right to editorial discretion. [3] Neither of these proposed laws have been enacted yet, as the U.S. Court of Appeals for the 11th Circuit blocked Florida from enforcing most of the law and the Supreme Court barred the state from implementing its law while the case continued. 

During oral arguments, the Supreme Court justices remained skeptical of the constitutionality of the new Florida and Texas laws. In the case of Moody v. Net Choice, Henry Whitaker argued on behalf of the petitioners that “the design of the First Amendment is to prevent the suppression of speech, not to enable it.” [4] Many members of the Supreme Court rejected this framework of the issue, such as Justice Kagan who called the proposed legislation “a classic First Amendment violation.” Justice Kavanaugh even rebuked this notion by Whitaker, citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, PG&E v. Public Utilities Comm'n, and Miami Herald Publishing Company v. Tornillo  as cases that “emphasize editorial control as being fundamentally protected by the First Amendment.”[5] [6] This editorial control issue was shared by nearly every member of the Supreme Court. Even Justice Alito who appeared more inclined to uphold the laws, asked Whitaker if content moderation was anything more than “a euphemism for censorship”. Justice Alito additionally pointed out that because of the broad scope of the Florida Legislation, Internet mail services like Gmail also fall under the scope of controlled speech, asking if “Gmail [has] a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with …  his or her viewpoints?”

At the beginning of the Net Choice, LLC v. Paxton case, Paul Clement, who argued on behalf of Net Choice in both cases that day, began his oral argument by jokingly pointing out how similar both cases were, then stating the primary difference between the two was that the Texas legislation is much more narrowly focused on social media platforms rather than websites. [7] This means that the Gmail example in the previous case would not apply. However, the Texas legislation also excludes websites based on “news, sports, and entertainment” which he called content-based discrimination which would be “facially unconstitutional.” Justice Gorsuch expressed confusion with the application of editorial control from social media platforms and why they do not consider it speech in regards to the First Amendment and not speech in regards to the Texas law. 

Though they appeared to have issues with the proposed legislation from both Florida and Texas, the Justices did appear to be in favor of some changes being made to the ability of social media platforms to restrict or promote content. Given the sweeping implications of this case on online speech, the Supreme Court is expected to deliver an incredibly narrow decision regardless of which side they rule in favor of. If the court rules in favor of Net Choice, they likely anticipate another case similar in content to be brought to them in the future. 

Notes:

1. "Moody v. NetChoice, LLC" SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/

2. "NetChoice, LLC v. Paxton” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/

3. "Miami Herald Publishing Company v. Tornillo." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/475/1/.

4. "Oral Argument Transcript: Moody v. Net Choice, LLC." Supreme Court of the United States, 2023, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-277_5536.pdf.

5. "Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/515/557/.

6.  "PG&E v. Public Utilities Comm'n." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/418/241/.

7. "Oral Argument Transcript: Net Choice, LLC. v. Paxton " Supreme Court of the United States, 2023, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf

Bibliography: 

"Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/515/557/.

"Miami Herald Publishing Company v. Tornillo." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/475/1/.

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf

"Moody v. NetChoice, LLC" SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/

"NetChoice, LLC v. Paxton” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander.

"Oral Argument Transcript: Moody v. Net Choice, LLC." Supreme Court of the United States, 2023, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-277_5536.pdf.

"Oral Argument Transcript: Net Choice, LLC. v. Paxton " Supreme Court of the United States, 2023, 

"PG&E v. Public Utilities Comm'n." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/418/241/. 

The Need for a Global Plastics Treaty is More Urgent Than Ever

By: Kunjal Bastola

Edited by: Angie Chung and Simon Carr

As marine plastic pollution continues to rise, contributing to degradation of the oceans and marine biodiversity, the need for a global plastics treaty is more pressing than ever. Climate scientists and activists have been emphasizing the urgency of implementing a more efficient system of reducing waste and recycling materials.[1] In March 2022, the UN Environmental Assembly unanimously adopted a resolution to develop a legally binding document on plastic pollution by the end of 2024.[2] With that deadline approaching, let’s take a look at the progress that has been made so far. 

At the UN assembly back in 2022, an Intergovernmental Negotiating Committee (INC) was established to lead the development of the treaty.[3] The assembly also came to a conclusion that the treaty should address the full lifecycle of plastics, from production to disposal, so as to properly mitigate plastic pollution.[4] So far, the INC has held three sessions to negotiate and draft the treaty.[5] The first session took place in Punta del Este, Uruguay in 2022.[6] The second session took place in Paris, France in 2023.[7] The third, and most recent, session took place in 2023 in Nairobi, Kenya in 2023.[8]

Many activists argue that the oil and gas industries are less invested in making cuts to the production of plastic but rather in recycling and waste management solutions, despite it being an important step in reducing the harmful effects of plastic pollution.[9] While it is important to take into account the entire lifecycle of plastics, including waste and recycling, the key to truly decreasing plastic pollution starts with plastic production. Almost every part of plastic is made of chemicals derived from fossil fuels, hence it is important to not only recycle and manage plastic waste properly, but also cut down on its production.[10] 

According to NPR, another impediment to the progression of the treaty deals with the challenge of bringing countries together to create an effective plan in decreasing plastic pollution.[11] While some countries advocate for a stronger framework, there are still a handful that want a looser, more voluntary framework.[12] Furthermore, 143 fossil fuel and chemical industry lobbyists registered for the most recent round of negotiations in Nairobi, giving them access to these negotiations at a critical time as the climate crisis worsens.[13] With the deadline for the treaty approaching, each negotiating session is becoming more critical than the previous one, and it’s likely industry lobbyists will continue to attend and exert influence over the discussions. 

During the next session, which is set to be in Ottawa, Canada from April 23 to 29 and is the fourth among five scheduled sessions, major changes need to be made in order for tangible progress to occur by the end of this year. [14] Plastic pollution will continue to increase and severely harm the marine environment if action isn’t taken soon. March 2024 marks the second year since the adoption of the resolution that kick-started the development of a global plastics treaty. A framework that adequately addresses the plastic pollution crisis is more imperative than ever. 

Notes: 

1. Plastics Europe, “The Global Plastics Treaty,” Plastics Europe, November 20, 2023, https://plasticseurope.org/changingplasticsforgood/global-plastics-treaty/.  

2. “United Nations Adopts Historic Resolution to End Plastic Pollution,” opc.ca.gov, Accessed February 26, 2024, https://opc.ca.gov/2022/03/united-nations-adopts-historic-resolution-to-end-plastic-pollution/.  

3. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

4. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

5. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

6. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

7. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

8. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

9. Copley, Michael, “Global Talks to Cut Plastic Waste Stall as Industry and Environmental Groups Clash,” NPR, November 20, 2023, https://www.npr.org/2023/11/20/1214141053/un-plastic-waste-pollution-negotiations-treaty-kenya-fossil-fuel-climate-change#:~:text=Negotiations%20over%20a%20global%20plastics,how%20to%20advance%20the%20deliberations.  

10. Copley, Michael, “Global Talks to Cut Plastic Waste Stall as Industry and Environmental Groups Clash,” NPR, November 20, 2023, https://www.npr.org/2023/11/20/1214141053/un-plastic-waste-pollution-negotiations-treaty-kenya-fossil-fuel-climate-change#:~:text=Negotiations%20over%20a%20global%20plastics,how%20to%20advance%20the%20deliberations.  

11. Copley, Michael, “Global Talks to Cut Plastic Waste Stall as Industry and Environmental Groups Clash,” NPR, November 20, 2023, https://www.npr.org/2023/11/20/1214141053/un-plastic-waste-pollution-negotiations-treaty-kenya-fossil-fuel-climate-change#:~:text=Negotiations%20over%20a%20global%20plastics,how%20to%20advance%20the%20deliberations.  

12. Copley, Michael, “Global Talks to Cut Plastic Waste Stall as Industry and Environmental Groups Clash,” NPR, November 20, 2023, https://www.npr.org/2023/11/20/1214141053/un-plastic-waste-pollution-negotiations-treaty-kenya-fossil-fuel-climate-change#:~:text=Negotiations%20over%20a%20global%20plastics,how%20to%20advance%20the%20deliberations.   

13. Copley, Michael, “Global Talks to Cut Plastic Waste Stall as Industry and Environmental Groups Clash,” NPR, November 20, 2023, https://www.npr.org/2023/11/20/1214141053/un-plastic-waste-pollution-negotiations-treaty-kenya-fossil-fuel-climate-change#:~:text=Negotiations%20over%20a%20global%20plastics,how%20to%20advance%20the%20deliberations.  

14. “Fossil Fuel and Chemical Industries Registered More Lobbyists at Plastics Treaty Talks than 70 Countries Combined,” Center for International Environmental Law, November 15, 2023, https://www.ciel.org/news/fossil-fuel-and-chemical-industries-at-inc-3/.  

15. “Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

Bibliography: 

Copley, Michael, “Global Talks to Cut Plastic Waste Stall as Industry and Environmental Groups Clash,” NPR, November 20, 2023, https://www.npr.org/2023/11/20/1214141053/un-plastic-waste-pollution-negotiations-treaty-kenya-fossil-fuel-climate-change#:~:text=Negotiations%20over%20a%20global%20plastics,how%20to%20advance%20the%20deliberations.  

“Fossil Fuel and Chemical Industries Registered More Lobbyists at Plastics Treaty Talks than 70 Countries Combined,” Center for International Environmental Law, November 15, 2023, https://www.ciel.org/news/fossil-fuel-and-chemical-industries-at-inc-3/.  

“Intergovernmental Negotiating Committee on Plastic Pollution,” UNEP, Accessed February 26, 2024, https://www.unep.org/inc-plastic-pollution.  

Plastics Europe, “The Global Plastics Treaty,” Plastics Europe, November 20, 2023, https://plasticseurope.org/changingplasticsforgood/global-plastics-treaty/.  

“United Nations Adopts Historic Resolution to End Plastic Pollution,” opc.ca.gov, Accessed February 26, 2024, https://opc.ca.gov/2022/03/united-nations-adopts-historic-resolution-to-end-plastic-pollution/.  

The Chevron Deference and the Future of Regulatory Agencies in the United States

By: Eliana Aemro Selassie

Edited by: Eleanor Bergstein and Madison bruno

The Chevron Deference is an important precedent in administrative law that could soon be overturned, changing the legal jurisdiction of both federal agencies and Congress. Chevron became an important legal precedent as a result of the Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. case heard by the Supreme Court in 1984. [1] The Chevron case arose when the Environmental Protection Agency (EPA) revised the Clean Air Act, allowing states to group pollution-emitting devices under the same “bubble” or regulatory term. This greatly benefitted major fossil fuel corporations like Chevron since the bubble regulation included provisions allowing industrial and fossil fuel plants to install new pieces of equipment without new permits that the act previously required. Several environmental groups like the Natural Resources Defense Council challenged the regulation, viewing it as a violation of the Clean Air Act and an attempt by the federal government to loosen air pollution restrictions. The case eventually made its way to the Supreme Court, which ruled in favor of the EPA’s interpretation of the Clear Air Act and its applications, establishing the Chevron deference. [2]

Despite marking an initial loss for environmental groups, the Chevron case has had a fundamental impact on administrative law. The Chevron case was particularly impactful because it set a new precedent for the jurisdiction of government agencies, extending their power to determine interpretations of Congressional statutes if the statute is ambiguous. [3] Under the Chevron deference, federal courts can accept a federal agency’s interpretation of “an ambiguous or unclear statute” entrusted to the agency by Congress. Despite the important role that Chevron has played in administrative law, there is a large possibility that it could be overturned. Under the Trump Administration, a growing number of Supreme Court justices have shifted to critique the Chevron deference, questioning its validity. [4] At the forefront of this shift is Justice Clarence Thomas, who was previously one of the biggest proponents of Chevron. In 2005, Thomas wrote an opinion defending Chevron in the National Cable & Telecommunications Association v. Brand X Internet Services case. In the opinion, Thomas argued that “Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation”. [3]

Thomas’ defense of Chevron and its applications in administrative law has gradually weakened over time. In the Michigan v. Environmental Protection Agency of 2015, Thomas sided with fellow conservative justices, arguing that the EPA had exceeded its jurisdiction, arguing against the extended power that Chevron grants to government agencies. Justice Thomas eventually publicly announced that his opinion in 2005 on the Brand X case was ill-advised, formally shifting his stance to become an opponent of Chevron. Many have pointed out that Thomas’ shift to critiquing Chevron was largely a result of gifts he received from conservative businessmen. Billionaires Harlan Crow and Leonard Leo are among many businessmen who have worked to overturn Chevron to benefit from looser government agency regulations that removing Chevron would provide. Both Crow and Leo have actively provided Thomas and his family with substantial gifts like luxury travel and financial donations. In addition to Justice Thomas, Justices Neil Gorsuch and Brett Kavanaugh have also publicly expressed their opposition to Chevron, illustrating a growing opposition to Chevron's deference in the Supreme Court that could potentially lead to it being overturned [3]. 

The Chevron deference is now under threat of being overturned in the upcoming Supreme Court case Loper Bright Enterprises v. Raimondo. The case determines whether the federal agency National Marine Fisheries Service (NMFS) can place limits on fish catch to prevent overfishing by major fishing companies like Loper Bright Enterprises. [5] The outcome of the case will effectively determine if the Supreme Court should overrule Chevron. [6] Overturning Chevron could have potentially disastrous consequences for administrative law and the future of government agencies. If Chevron were overturned, federal judges would be increasingly responsible for interpreting statutes that agents specialized in addressing the issues are much better suited to do. [5] Government agencies are responsible for a myriad of health, environmental, safety, and financial issues. Officials in these agencies should be allowed to use their expertise to address matters in those fields, rather than federal judges. Furthermore, as the climate crisis worsens, limiting the jurisdiction of environmental agencies like the EPA could reduce their capacity to address environmental issues. The ever-worsening state of the environment could continue to decline as a result of the limitations placed on environmental agencies, potentially restricting their already limited control over environmental policy. Ultimately, the Supreme Court’s decision could immensely impact how regulatory agencies operate and the future of administrative law in the United States. [7]

Notes:

1. Cornell University. “Chevron deference Primary tabs.” Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/chevron_deference.

2. Stevens, John Paul. “Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.” Oyez, 29 February 1984, https://www.oyez.org/cases/1983/82-1005. Accessed 2 March 2024.

3. Rock, Julia, and Andrew Perez. “Influenced by Dark Money, Clarence Thomas Has Reversed His Position on a Landmark Legal Doctrine.” Jacobin, 10 May 2023, https://jacobin.com/2023/05/clarence-thomas-chevron-regulatory-doctrine-conservatives-dark-money. Accessed 2 March 2024.

4. Hamilton, Alexander, and Kenneth Starr. “Chevron deference (doctrine).” Ballotpedia, https://ballotpedia.org/Chevron_deference_(doctrine). Accessed 2 March 2024.

5. Pazzanese, Christina. “Scholar explains implications of SCOTUS revisiting 'Chevron deference'— Harvard Gazette.” Harvard Gazette, 16 January 2024, https://news.harvard.edu/gazette/story/2024/01/chevron-deference-faces-existential-test/. Accessed 2 March 2024.

6. Oyez. “Loper Bright Enterprises v. Raimondo.” Oyez, 17 January 2024, https://www.oyez.org/cases/2023/22-451. Accessed 2 March 2024.

7. Turrentine, Jeff. “What Happens If the Supreme Court Ends “Chevron Deference”?” NRDC, 21 June 2023, https://www.nrdc.org/stories/what-happens-if-supreme-court-ends-chevron-deference. Accessed 2 March 2024.

Bibliography:

Cornell University. “Chevron deference Primary tabs.” Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/chevron_deference.

Hamilton, Alexander, and Kenneth Starr. “Chevron deference (doctrine).” Ballotpedia, https://ballotpedia.org/Chevron_deference_(doctrine). Accessed 2 March 2024.

Oyez. “Loper Bright Enterprises v. Raimondo.” Oyez, 17 January 2024, https://www.oyez.org/cases/2023/22-451. Accessed 2 March 2024.

Pazzanese, Christina. “Scholar explains implications of SCOTUS revisiting 'Chevron deference'— Harvard Gazette.” Harvard Gazette, 16 January 2024, https://news.harvard.edu/gazette/story/2024/01/chevron-deference-faces-existential-test/. Accessed 2 March 2024.

Rock, Julia, and Andrew Perez. “Influenced by Dark Money, Clarence Thomas Has Reversed His Position on a Landmark Legal Doctrine.” Jacobin, 10 May 2023, https://jacobin.com/2023/05/clarence-thomas-chevron-regulatory-doctrine-conservatives-dark-money. Accessed 2 March 2024.

Stevens, John Paul. “Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.” Oyez, 29 February 1984, https://www.oyez.org/cases/1983/82-1005. Accessed 2 March 2024.

Turrentine, Jeff. “What Happens If the Supreme Court Ends “Chevron Deference”?” NRDC, 21 June 2023, https://www.nrdc.org/stories/what-happens-if-supreme-court-ends-chevron-deference. Accessed 2 March 2024.

Alabama Supreme Court Decision Raises Questions About the Future of Fertility Care

By: Cate Bikales

Edited by: Isabella Canales and Isabel Gortner

Note: This article was written prior to Mar. 6, when Alabama’s Republican governor Kay Ivey signed a bill into law that aims to protect IVF patients and providers from the legal liability raised by the state Supreme Court’s ruling that frozen embryos are considered children. The following day, Alabama clinics resumed IVF treatment. 

An Alabama Supreme Court ruling in mid-February that frozen embryos created through in vitro fertilization (IVF) are considered children under state law is already impacting fertility care across the state and could have detrimental impacts on women’s health care nationwide.    

Just days after the decision, three IVF-providing clinics in the state suspended services as they grappled with the potential legal repercussions of the decision. [1] 

The issue made its way to Alabama’s high court after three families sued a fertility clinic when an intruder removed the plaintiffs’ frozen embryos from a cryogenic nursery and dropped them on the floor, destroying the embryos. The families sued for wrongful death under the state’s Wrongful Death of a Minor Act. [2] “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority opinion issued on Feb. 16. [3]  

In a post-Roe world filled with uncertainty about women’s rights, many are left wondering whether this decision means the right to fertility care will be the next to go. 

Indeed, the majority decision cited anti-abortion language that was added to the state constitution in 2018 to justify the ruling: “It is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” [5] Chief Justice Tom Parker’s concurring opinion reflected a similar sentiment, while also referencing his religious beliefs to back up his pro-life stance. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” he wrote. [6] 

Abortion is currently prohibited at all stages of pregnancy in Alabama. [7] White House press secretary Karine Jean-Pierre said that the ruling is exactly the “type of chaos” the Biden Administration expected when the Supreme Court overturned Roe v. Wade in 2022, which “paved the way for politicians to dictate some of the most personal decisions families can make.” [8] In his dissenting opinion, Justice Greg Cook argued that no court anywhere in the country has reached the conclusion the majority reaches, adding that it “almost certainly ends the creation of frozen embryos through [IVF] in Alabama.” [9]

The University of Alabama Birmingham Health System, which includes the largest hospital in the state, was the first to announce its decision to suspend treatment following the ruling. Alabama Fertility and the Center for Reproductive Medicine at Mobile Infirmary — the clinic sued in the court case — quickly followed. [10] “We have made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists,” Alabama Fertility said in a statement on social media on Feb. 22.  “[We] will not close. We will continue to fight for our patients and the families of Alabama.” [11]

A recent Pew Research survey found that 42% of American adults say they have used, or know someone who has used fertility treatments. [4] During IVF, mature eggs are surgically removed from the ovary and fertilized within a lab. The fertilized egg, called an embryo, is then implanted into the uterus. Unused embryos can be frozen for later use or discarded. [12] While the Alabama decision does not make IVF illegal, it does bring up many questions. How can IVF continue if it is illegal to destroy an embryo? Even if IVF does continue, it is likely costs will increase significantly, and access will decrease. [13] 

“This ruling has profound implications far beyond Alabama’s borders,” the advocacy group RESOLVE: The National Infertility Association said in a statement on social media. “Every American who wants or needs access to family building options like IVF should be deeply concerned about this development and the precedent it will set across the country.” [14] 

However, recent efforts to condemn the Alabama ruling by both political parties show that there may be hope for the future of fertility care. Many Republican senators, particularly those running for re-election this year, are urging lawmakers and candidates to express support for IVF. [15] Former President Donald Trump also expressed an opinion in favor of IVF on Truth Social: “Like the OVERWHELMING MAJORITY of Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby.” [16]

Republican presidential candidate Nikki Haley is one of few Republicans who have spoken openly in support of the Alabama decision, saying that “embryos, to me, are babies.” [17] 

Leaders in Alabama, including Gov. Kay Ivey (R), say they are working to defend and protect access to IVF in the state. “The Legislature will soon consider a solution that preserves our Alabama values by empowering IVF clinics to continue assisting couples in bringing new life into the world,” said House Republican Speaker Nathaniel Ledbetter. [18] 

Until that clarification comes, IVF patients and providers will continue to be left in the dark about the future of fertility care in Alabama and beyond.

Notes:

1. Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

2. LePage v. Center for Reproductive Medicine, P.C.

3. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling) https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/343D203A-B13D-463A-8176-C46E3AE4F695/docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D. 

4. Carolina Aragão and Isabel Goddard. “A growing share of Americans say they’ve had fertility treatments or know someone who has.” Pew Research Center, September 14, 2023. https://www.pewresearch.org/short-reads/2023/09/14/a-growing-share-of-americans-say-theyve-had-fertility-treatments-or-know-someone-who-has/. 

5. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

6. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

7. “Alabama,” Center for Reproductive Rights, Accessed February 23, 2024, https://reproductiverights.org/maps/state/alabama/#:~:text=On%20June%2024%2C%202022%2C%20Alabama,%C2%A7%2026%2D23H%2D4.

8. Chandler, Kim. “Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling.” AP News, February 21, 2024. https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca. 

9. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

10. Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

11. Alabama Fertility Specialists, “Dear patients of AFS…,” Facebook, February 22, 2024, https://www.facebook.com/alabamafertility/posts/pfbid037BWz6srp8KUT44H6nDrXrZ8ycKm5Vny9PzuYh8dzfoXd5KBqPaYgug2YURWFhfDHl. 

12. “In vitro fertilization (IVF),” Mayo Clinic, Accessed February 23, 2024, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716#:~:text=During%20in%20vitro%20fertilization%2C%20eggs,into%20the%20uterus%20(C). 

13. Millhiser, Ian. “The Alabama Supreme Court opinion holding that embryos are children, explained,” Vox, February 20, 2024. https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo. 

14. RESOLVE (@resolveorg), “The Alabama Supreme Court recently ruled…,” Instagram, February 19, 2024, https://www.instagram.com/p/C3iDMh_uguO/?hl=en&img_index=4. 

15. The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

16. Megan Messerly and Jessica Piper. “Trump says he supports IVF after Alabama court decision,” Politico, February 23, 2024. https://www.politico.com/news/2024/02/23/trump-says-he-supports-ivf-after-alabama-court-decision-00142994 

17. Alex Rhoades and Ali Vitali. “Nikki Haley sides with Alabama Supreme Court on IVF ruling: 'Embryos, to me, are babies',” NBC News, February 21, 2024. https://www.nbcnews.com/politics/2024-election/nikki-haley-sides-alabama-supreme-court-ivf-ruling-embryos-are-babies-rcna139819. 

18. The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

Bibliography:

“Alabama,” Center for Reproductive Rights, Accessed February 23, 2024, https://reproductiverights.org/maps/state/alabama/#:~:text=On%20June%2024%2C%202022%2C%20Alabama,%C2%A7%2026%2D23H%2D4.

Alex Rhoades and Ali Vitali. “Nikki Haley sides with Alabama Supreme Court on IVF ruling: 'Embryos, to me, are babies',” NBC News, February 21, 2024. https://www.nbcnews.com/politics/2024-election/nikki-haley-sides-alabama-supreme-court-ivf-ruling-embryos-are-babies-rcna139819. 

Azeen Ghorayshi and Roni Caryn Rabin. “Alabama Rules Frozen Embryos Are Children, Raising Questions About Fertility Care,” The New York Times, February 20, 2024. https://www.nytimes.com/2024/02/20/health/ivf-alabama-abortion.html. 

Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

Carolina Aragão and Isabel Goddard. “A growing share of Americans say they’ve had fertility treatments or know someone who has.” Pew Research Center, September 14, 2023. https://www.pewresearch.org/short-reads/2023/09/14/a-growing-share-of-americans-say-theyve-had-fertility-treatments-or-know-someone-who-has/. 

Chandler, Kim. “Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling.” AP News, February 21, 2024. https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca. 

“In vitro fertilization (IVF),” Mayo Clinic, Accessed February 23, 2024, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716#:~:text=During%20in%20vitro%20fertilization%2C%20eggs,into%20the%20uterus%20(C). 

Megan Messerly and Jessica Piper. “Trump says he supports IVF after Alabama court decision,” Politico, February 23, 2024. https://www.politico.com/news/2024/02/23/trump-says-he-supports-ivf-after-alabama-court-decision-00142994 

Millhiser, Ian. “The Alabama Supreme Court opinion holding that embryos are children, explained,” Vox, February 20, 2024. https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo. 

Moniuszko, Sara. “Alabama court ruled frozen embryos are children. Experts explain potential impacts to IVF treatment,” CBS News, February 21, 2024. https://www.cbsnews.com/news/alabama-frozen-embryos-children-experts-ivf-fertility/.

Shoshana Dubnow and Stephanie Sy. “How an Alabama Supreme Court ruling that frozen embryos are children impacts IVF,” PBS, February 21, 2024. https://www.pbs.org/newshour/show/how-an-alabama-supreme-court-ruling-that-frozen-embryos-are-children-impacts-ivf.

The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

Weixel, Nathaniel. “How Alabama’s frozen embryo decision is shaking the nation: What you need to know,” The Hill, February 21, 2024. https://thehill.com/policy/healthcare/4481856-how-alabamas-frozen-embryo-decision-is-shaking-the-nation-what-you-need-to-know/.