Policy change often arises from diverse political coalitions. Not all supporters of a change have the same reasons for backing it. Sometimes, legislative support comes from a “baptists and bootleggers” coalition – a mix of those who endorse the change on moral grounds and those who stand to gain financially.
Economist Bruce Yandle coined this concept. Here is his explanation of the theory:
Social regulation tends to emerge when it is demanded by two distinct groups. “Baptists” advocate for the moral high ground and promote the public benefits promised by a desired regulation. Baptists thrive when their moral message drives political action. On the other hand, “Bootleggers,” while less visible, play a crucial role. Bootleggers, who stand to profit from the regulatory restrictions supported by Baptists, grease the political wheels with their expected gains. They are motivated by financial gain.
The theory’s name is inspired by stories of states regulating alcohol by banning Sunday sales. Baptists fervently supported such actions on moral grounds, while Bootleggers welcomed them as a way to limit competition.
It is important to note that Bootleggers are more concerned with the specifics of a regulation, not just the broader principle that matters to Baptists. For example, Bootleggers would not support restrictions on Sunday alcohol consumption, even if Baptists did. Bootleggers aim to limit competition, not consumption. Crucial to the theory is the idea that Bootleggers rely on Baptists to ensure enforcement of restrictions that benefit them.
Professor Andrew Morriss suggests that this dynamic may have been at play in the Alabama legislature’s response to LePage v. The Center for Reproductive Medicine, P.C., where the Alabama Supreme Court ruled that frozen embryos are considered “children” under Alabama’s Wrongful Death of a Minor Act, potentially holding IVF clinics liable for the “wrongful death” of a frozen embryo.
Just two-and-a-half weeks after the Alabama court’s decision, the legislature passed and Gov. Kay Ivey signed comprehensive legislation granting immunity to IVF clinics, stating that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” . . . However, as the lone dissenting vote in the Alabama Senate accurately pointed out, the statute is “not an IVF protection bill, it’s an IVF provider and supplier protection bill” that restricts the ability of mothers involved in IVF to seek recourse when their embryos are destroyed by clinics. . . .
By seeking immunity from tort suits based on the LePage ruling, reproductive medicine clinics acted as regulatory Bootleggers. Requesting absolute immunity for negligence in handling embryos – which parents are likely to have strong feelings about – is not a request that most legislators would likely support. After all, medical professionals and facilities are typically liable for medical malpractice. Negligence does occur in fertility clinics. A 2020 survey in Fertility & Sterility Reports identified 133 cases between January 2009 and June 2019 alleging negligent destruction of cryopreserved embryos. . . .
Morriss suggests that misleading media reports may have influenced the outcome. Contrary to some reports, the Alabama Supreme Court focused on interpreting specific terms in a specific law, not making broad statements about the legal status of embryos or restricting reproductive rights.
The media’s portrayal of the majority opinion in LePage as an attack on IVF was misleading. IVF has helped countless families, including my own, experience the miracle of life. However, it is a medical procedure with associated risks of negligence. Negligence can lead to claims for damages. The crucial question that the media and panic-inducing reports avoided was, “Why should IVF be treated differently?” As noted by Levin and Snead here, “The Alabama legislature could have responded to the state supreme court’s decision by using the alleged egregious negligence of the clinic in question as an occasion to establish some rules for the practice of fertility treatment, including the creation, use, and storage of living human embryos.” Instead, they granted blanket immunity to clinics, a failure of governance.
If the plaintiffs in LePage go to trial against the clinic, we may uncover how someone gained access to the embryo nursery, removed embryos from cold storage, and destroyed them. This could be due to clinic negligence, such as inadequate access control and security measures. Requiring basic controls on frozen embryo access is not burdensome and would not hinder IVF availability. Shielding IVF facilities from tort liability removes incentives for meeting professional care standards, which most medical professionals in America adhere to. The tragedy of LePage lies in the failure of the media, legislature, and governor to see through the special-interest rhetoric and stand up to regulatory Bootleggers. Only the Alabama Supreme Court addressed the core issue. As a result of other shortcomings, future tragedies may occur without the potential for compensation to parents of negligently destroyed embryos.
