Thank Alabama for the Coming Superbabies

Why affective polarization makes reproductive freedom safer

Much has recently been written about the immediate political impacts of IVF suddenly becoming a politically salient issue, but I think people have generally missed what is potentially a much larger story. The Alabama Supreme Court has effectively killed any possibility that liberal elites will ever turn on biotechnology, including practices like embryo selection and surrogacy. We should be thankful that these kinds of procedures are becoming available at the same time that conservatives have a theocratic orientation, liberals control almost every institution that matters, and the country has a high degree of affective polarization, meaning that the two major political tribes dislike and try to distinguish themselves from one another.

It did not take long for Republicans to distance themselves from the Alabama Supreme Court. Within days of the ruling that embryos count as unborn children under state law, polls circulated showing that this was a losing issue. Republicans soon fell over themselves assuring the public that they supported IVF, Trump told the Alabama legislature to take action, and it looks like they might do so.

Ideological pro-lifers, activists and intellectuals rather than politicians, still hold on to the position that a fertilized embryo always deserves the full protection of the law. Therefore, IVF may create a new life, but it usually ends up discarding fertilized eggs, and is therefore unacceptable. Having embryos treated as people for cases of civil and criminal liability would make IVF difficult or impossible given current technology, which is why Alabama clinics put a pause on the practice soon after the ruling.

I don’t think Republicans are running from this issue only because it’s good politics. The fact of the matter is that many conservative elites are modern professionals who started their families relatively late, and had to rely on reproductive technology. Mike Pence’s wife Karen had her first child at 35, after struggling with infertility for years. When talking about the recent Alabama ruling, Charlie Kirk went out of his way to mention that he knew people who had successfully used assisted reproductive technology.

The Pences and their IVF-born son.

Around 2% of babies in the US are now born through IVF. Those numbers are much higher among the more educated portions of the public, reaching almost 5% in Massachusetts as of 2015. According to a 2018 Pew Research poll, a third of Americans had undergone fertility treatment or knew someone who had. There are massive differences by education, with 20% of those with a high school degree or less answering in the affirmative, compared to 43% of those with a BA, and 56% of those with a postgrad degree. DC, Maryland, and Virginia have some of the highest rates of IVF use in the country.

So yes, politicians respond to public opinion, but what’s also important is that many elites have found IVF to be the only way that they can have their own biological children. There’s no guarantee that the Alabama Supreme Court decision gets overturned by the legislature, but public and elite opinion should be able to stop the anti-IVF movement in its tracks in all but the deepest red states, and maybe even there too.

What all this demonstrates is the degree to which, even though the anti-abortion movement finds some support among the public, there is basically no constituency for Catholic philosophical doctrine that actually takes the idea that life begins at conception to its logical conclusion.

And this is a good thing! You don’t want people with bad ideas to take them too seriously. A hypocritical Muslim is better than bin Laden, despite the fact that someone like Sam Harris might argue that the extremist is the one truly living in accord with the doctrines of his faith.

My interest in this topic is mostly due to the potential for us to get on a “slippery slope.” That is, I believe that biotech is an unalloyed good and we should do whatever we can to empower parents to not only be able to have more children, but to make them as intelligent and healthy as they can possibly be, leaving room for families to value different traits and make different tradeoffs, so that in the end genotypic diversity is preserved and we all just get better. Moreover, we need more surrogacy, as many successful women want to have children but would rather not deal with the physical strains of pregnancy, and it is good to give them the option of outsourcing the process to women with a lower opportunity cost of carrying a child, which, like hiring a person as a nanny or to clean one’s home, makes everyone better off. There are potentially other kinds of biotech coming down the line, but surrogacy and embryo selection are already here and society should encourage these practices to the greatest extent possible.

Obviously, this vision makes plenty of people uncomfortable. One worries that leftist egalitarians could try to put the brakes on biotech, for reasons like it might increase gaps between rich and poor, and maybe lead to the “exploitation” of lower class women. Opposition from liberals would be more problematic than from conservatives, because the latter don’t run the medical associations, the federal bureaucracy, the major hospitals, or much of anything of importance. At most conservatives will be able to push around the women of Alabama and cause revulsion throughout the rest of the country.

Fortunately, a leftist clampdown on biotech in the United States is becoming less and less likely. It was never that likely to begin with, since leftists have for decades been strong supporters of reproductive freedom. Even before Dobbs, Republican legislatures would try to score PR victories by banning abortions based on race, sex, or disability. One might think that such restrictions could find support among some on the left, but these laws never get any sympathetic coverage in the media. Clearly, in this policy area, “woman’s right to choose” trumps “everything is racist/sexist/ableist.” When left wing ideology has a domain specific doctrine, it usually gets priority over a more general approach to public issues. This means that pro-choice fundamentalism is baked in on the left, and telling liberals that actually abortion is racist won’t work.

Percentage of each party rating the other party at 0 on a 0-100 scale.

As states have sought to regulate pregnancy in the aftermath of Dobbs, liberals have become even more doctrinaire on this issue, emboldened by the fact that public opinion is so overwhelmingly on their side. Americans are so freaked out by the pro-life agenda that Montana voted down a referendum that would have required medical treatment for babies born alive. Now, the Alabama ruling has led to conservative Republicans making it clear that they support IVF and want it to be broadly accessible.

Parents are already selecting embryos based on health. Some are, without much public attention, also doing so based on predicted intelligence, height, and other traits. This practice spreading more broadly is inevitable as long as the law doesn’t get in the way.

I suspect that if all conservatives disappeared tomorrow, leftists might begin a conversation among themselves that eventually leads to them deciding that they should begin to more heavily regulate surrogacy and embryo selection. As things stand, the left is in no mood to compromise on reproductive freedom. This means that the default position of educated elites is that a woman can make whatever decision she wants about her fetus for any reason, without any interference from the state, and without public policy putting any value on the continuing existence of the fetus itself if the mother doesn’t herself do so.

Pro-lifers have for decades been ranting about how Planned Parenthoods are more likely to exist in black neighborhoods, begging Democrats to think about the disparate impact. They’ve gotten nowhere, which is why I believe that the left is highly unlikely to ever stand in the way of embryo selection, regardless of what parents decide to do with the tools that science and the free market give them.

One can look to Europe to see how governments approach issues like IVF and surrogacy in societies with less affective polarization. One law professor calls the US the “Wild West” of fertility due to our relatively low level of regulation, which social conservatives complain about. Many of the laws that do exist are easy to get around. For example, you technically can’t pay for a woman’s eggs, but you can compensate her for “time and effort,” which can turn out to carry a high price. California “has reasonably friendly case law, with the commissioning parents granted considerable rights (and responsibilities), and law firms specializing in contracts between intending parents and surrogates.” Europe is for the most part not like this, and bans various practices that social conservatives wish the US would also prohibit.

Some of this difference might be due to the fact that European states are more willing and institutionally able to regulate technology as a general matter. But I don’t think it’s an accident that it was California that ended up as a hub of commercial surrogacy. Wikipedia lists the most surrogacy friendly states as California, Illinois, Arkansas, Maryland, Oregon, New Hampshire, New Jersey, and Washington, along with Washington, DC. Aside from Arkansas, they tend to be blue states, not places that are generally averse to regulation. American liberals are unusually friendly to biotech as a reaction to the pro-life movement, and also because it is seen as pro-LGBT, which likewise explains some of the conservative opposition.

Of course, there’s no guarantee that this state of affairs will last forever. This is why I hope pro-life extremists don’t ever completely go away. As long as there are at least some of them out there willing to actually push policy based on the idea that life begins at conception, the odds that leftists ever turn against any form of reproductive technology remain small.

The recent IVF decision may get overturned by legislation, and even if it doesn’t, it only affects Alabama anyway. A tragedy for the people of that state, but it has made everyone who matters much more pro-IVF. Bureaucrats in Washington and ethics boards at Johns Hopkins are now less likely than they were two weeks ago to be receptive towards any attempts to limit what parents can do with their own embryos. There are leftist journalists and academics who screech about how reproductive technology is “eugenics,” and their mission to win over other elites just became much more difficult.

One might worry that the backlash to the Alabama decision goes too far, to the point that it ensures that even the most backwoods judge or county commissioner decides he’s never going to touch IVF. Ideally, you’d get a state government or congressional Republicans doing something stupid every few years. Still, leftists are good at drumming up hysteria when they care about an issue. There aren’t enough hate crimes out there to meet demand, so the media ends up falling for even the most absurd hoaxes. In this case, infringements on reproductive freedom won’t be hard to find, and we can rely on the media to make the most of them in service of the greater good.

At the same time, the danger from pro-life extremists can’t be discounted. Secular Arab states have over the decades often supported Islamists for strategic reasons, only to find out that religious extremists are difficult to keep under control. The judiciary poses a particular challenge, as demonstrated by the Texas decision restricting the availability of mifepristone last year. Judges are not subject to normal public opinion pressures, so can go further than legislatures in pushing the pro-life cause. If the judiciary swings right enough, we could end up in the territory of the 14th Amendment protecting the life of embryos, which would actually be a threat to reproductive freedom. This would of course ultimately hurt Republicans at the ballot box, but it would take a long time to undo the damage.

The ideal situation is therefore a world where pro-lifers continue to exist as a force strong enough to create a backlash among liberal elites, but without enough power to actually take meaningful steps to restrict reproductive freedom, except in a handful of states where Republicans are completely dominant and the odds of an electoral backlash are low. I believe that this is the most likely outcome, and future generations will ultimately be the beneficiaries of our contemporary partisan divisions. No society ever builds statues in honor of concepts like affective polarization, but our weird politics may just be what ensures that America leads the way towards humanity ultimately reaching its full potential.