The New Abortion

Abstract

In vitro fertilization presents a neglected puzzle. It’s used to create one in fifty babies born in the U.S. each year, but remains deeply underregulated and has rarely been subject to political wrangling. IVF’s regulatory vacuum has long been chalked up to the singular polarization of abortion in the U.S. And yet for half a century, our law and politics could hardly have treated these practices more differently: contrast the hands-off approach to IVF with vast abortion limits, marked by explosive partisan battles. Only since Roe fell has IVF become a culture war flashpoint, with roiling controversies over religious condemnation, state court decisions to treat embryos as children, and federal proposals to restrict IVF or promote it by congressional statute or executive order. IVF’s sudden emergence as a site of intense contestation and social-movement struggle is what we call the new abortion.

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. Drawing on original archival research in three privately held collections, two historical societies, four universities, and the Library of Congress, we chronicle the complex dynamics between abortion and IVF, analyzing their significance for family, faith, race, sex, medicine, technology. Our account shows how the aftermath of Roe’s reversal dislodged the conditions that had preserved IVF’s regulatory impasse. This story also reveals patches of common ground on which to find compromise, uncovering a sustainable regulatory path that would disclose avoidable mistakes and prevent them from happening, while preempting bad-faith efforts to reduce IVF access in the name of protecting families.

Keywords: religious realignment, social movement politics, unborn personhood, legal history, family values, IVF, abortion, assisted reproduction, surrogacy