Political change is often the result of disparate political coalitions. Not everyone who supports change necessarily supports it for the same reason. Sometimes, political support for legislative change is the result of a coalition of “baptists and bootleggers,” a coalition of those who support change on regulatory grounds and those who hope to make money.
Economist Bruce Yandle coined this phrase. Here is his explanation of the theory:
Durable social regulation evolves when it is demanded by two distinctly different groups. “Baptists” emphasize moral elevation and give vital and explicit support to the laudable public benefits promised by desired regulation. Baptists thrive when their moral message provides a visible foundation for political action. The “smugglers” are much less visible but no less vital. Smugglers, hoping to profit from the regulatory restrictions sought by the Baptists, grease the political machine with some of the expected proceeds. They are simply there for the money.
The theory’s name is inspired by colorful stories about states’ efforts to regulate alcoholic beverages by banning Sunday sales at legal outlets. Baptists fervently supported this action on moral grounds. Smugglers willingly tolerated the actions because their effect was to limit competition.
It’s worth noting that it’s the details of a regulation that usually get bootleggers’ approval, not just the broader principle that may matter most to Baptists. Thus, for example, bootleggers would not support restrictions on Sunday consumption of alcoholic beverages, although Baptists might. Smugglers want to limit competition, not acquisition. Important to the theory is the idea that smugglers can rely on Baptists to monitor the enforcement of restrictions to the smugglers’ advantage.
Professor Andrew Morriss suggests that we may have seen this dynamic in action in the Alabama legislature’s response to the LePage v. The Center for Reproductive Medicine, PCthe Alabama Supreme Court decision concluding that frozen embryos constitute “children” for purposes of Alabama’s wrongful death of a minor law, thus making an IVF clinic potentially liable for the “wrongful death” of an embryo frozen.
On March 6, just two and a half weeks after the Alabama court’s opinion was released, the Alabama legislature passed and Governor Kay Ivey signed sweeping legislation immunizing IVF clinics from liability, stating that “no action, suit or criminal proceeding for the injury or death of an embryo shall be brought or maintained against any person or entity providing or receiving services relating to in vitro fertilization.” . . . However, as the only member of the Alabama Senate who voted against the bill accurately noted, the statute “is not an IVF protection bill, it’s an IVF provider protection bill.” and IVF providers” which “limits the ability of mothers involved in IVF” when their embryos were destroyed by clinics. . . .
Using the decision in LePage To gain immunity from lawsuits, reproductive medicine clinics have played the role of regulatory bootleggers. Calling for absolute immunity from lawsuits for negligent treatment of embryos — embryos whose parents likely have strong feelings about them — is not something many lawmakers are likely to be sympathetic to. After all, medical professionals, clinics and hospitals are liable for medical malpractice. Fertility clinics have therefore had difficulty explaining why they should receive special treatment over other facilities and medical professionals. And negligence occurs in these clinics. A 2020 survey article in Fertility and sterility relationships found 133 cases filed between January 2009 and June 2019 that credibly alleged negligent destruction of cryopreserved embryos. . . .
Morriss suggests that misleading media reports may have contributed to the outcome. Contrary to some reports, the Alabama Supreme Court has focused on the meaning of specific terms in a specific statute, without making a broad announcement about the legal status of embryos, much less criminalizing their destruction or limiting reproductive rights in any way wider.
The media report on the majority opinion in LePage I misrepresented it as an attack on in vitro fertilization, a procedure that has allowed thousands of families (including mine) to grow through the miracle of creating life. As amazing as this technology is, it is still a medical procedure that carries the risk of malpractice. Negligence can serve as the basis for a claim for damages. The question that the media avoided, and that the panic they induced allowed clinics to avoid, was: “Why should IVF be treated differently?” As Levin and Snead noted, “The Alabama legislature could have responded to the state supreme court’s decision by using the alleged gross negligence of the clinic in question as an opportunity to establish some rules for the practice of fertility treatment, including creation, use, and preservation of living human embryos.” Instead, it granted total immunity to clinics. This is a failure of governance.
If the plaintiffs in LePage trial against the clinic involved, we will find out how it happened that someone managed to enter the embryo nursery, remove the embryos from the cold storage room and destroy them. It is plausible that this is due to negligence on the part of the clinic. At a minimum, access control to the nursery was deficient, including the lack of reasonably simple protective measures (door and freezer locks). Requiring simple controls on access to frozen embryos is not a crushing burden that will end the availability of IVF. Instead, immunizing IVF facilities from tort liability removes the powerful incentives provided by tort law—incentives that push most medical professionals in America to meet professional standards of care. The tragedy of LePage is that all but one of the institutions involved – the media, the Alabama legislature, and the governor – fell for the regulatory rhetoric of Baptist special interests and failed to resist the smugglers of regulation. Only the Alabama Supreme Court focused on the real issue. As a result of other failures, there will be more tragedies, but without the possibility that future parents of embryos destroyed through negligence will be compensated for their injuries.