By Megan E. Cobb

After six years, Sofia Vergara has been granted a permanent injunction preventing her ex-partner, Nick Loeb, from using the frozen embryos they created together without her explicit written permission.[1]  This decision is just one step in a long court battle between the two which dates back to 2014, when Loeb filed suit in Santa Monica, California, “to protect the frozen embryos” he created with Vergara.[2]  In April 2015, Loeb wrote an op-ed in the New York Times that claimed that, in his opinion, Vergara’s desire to keep their two embryos frozen indefinitely was tantamount to killing them.[3]  The judge in the Los Angeles Superior Court ruled that Loeb breached a contract signed by both himself and Vergara by setting up a trust for the embryos and suing for custody on behalf of the embryos in Louisiana.[4]  As for Loeb’s Louisiana suit, Judge Regina Bartholomew-Woods stated that it is clear that Loeb was engaging in forum shopping, and that he and his counsel engaged in behavior which “makes a mockery of the Louisiana legal system and the bar and is abhorrent.”[5]  While at first blush this seems to be simply a private dispute between previous partners, this case and the rhetoric surrounding it touch on important questions regarding personhood, when life begins, and the importance of consent in matters regarding bodily autonomy.

One issue in the case between Loeb and Vergara is that these are two people with strikingly different opinions on the topic of personhood.  Loeb is of the opinion that these embryos are babies, and thus are humans entitled to the protection of the court and with rights of their own.[6]  In a statement released by Loeb, he said, “It’s sad that Sofia, a devout Catholic, would intentionally create babies just to kill them.”[7]  Vergara, on the other hand, has never stated that she wants the embryos to be destroyed, wanting instead to “leave the embryos frozen indefinitely.”[8]  She does not seem to view the embryos as humans, and embryos are not recognized as having constitutional Fourteenth Amendment rights.[9]  However, some state law does recognize rights inherent to unborn human fetuses.[10]  Currently, thirty-eight states have fetal homicide laws, and at least twenty-nine of those states have laws which apply to the earliest stages of fetal development.[11]

Under the law of some states, such as Missouri, frozen embryos are not human life, but marital property.[12]  Judge Robert Clayton III, in a 2016 decision, stated that a bid to apply a state’s law defining life as beginning at conception would be at odds with a non-consenting donor’s rights to privacy, freedom from government interference, and freedom not to procreate.[13]  In McQueen v. Gadberry,[14] a marriage dissolution proceeding, two frozen embryos were found to be marital property, and the embryos were awarded to the husband and wife jointly.[15]  In this case, the wife appealed for custody of the embryos in order to possibly implant them at a later date.[16]  This Missouri decision is in line with the decision in Vergara’s case, because the court in both cases awarded joint custody to both parties, meaning that neither could make any decision regarding the embryos without the consent of the other.[17]

Some lobbying groups and religious organizations do view frozen embryos as human life.[18]  These groups promote the belief that life begins at fertilization (also known as “fetal personhood”).[19]  If such groups are successful at lobbying Congress to pass bills which guarantee fundamental constitutional rights to embryos at fertilization,[20] obstetricians, gynecologists, and infertility specialists warn that infertility treatments such as in vitro fertilization (“IVF”) may become impossible to perform.[21]  These doctors are also concerned that “personhood” legislation could put doctors in danger of criminal liability when dealing with issues such as ectopic pregnancies.[22]  These complications would make IVF, already cost-prohibitive to many couples,[23] much more difficult to access.

Another issue the case between Vergara and Loeb raises is a person’s right to decide what to do with parts of their own body.  For instance, a living person’s decision to donate an organ “must be completely voluntary and free from pressure.”[24]  While in Vergara’s case, the tissue donated has already been removed from her body, it is still her egg that was used to create the embryo.[25]  If a living person must consent completely voluntarily and free from pressure to donate a kidney,[26] should a decision regarding the use of an embryo be any different?  It would seem so: cases involving embryos also bring in the question of an individual’s right not to procreate.

In 1992, the Tennessee Supreme Court decided the case of Davis v. Davis.[27]  In Davis, the court stated that the right to procreational autonomy involves two rights of equal significance: the right to procreate and the right to avoid procreation.[28]  The court also found that the state’s interest in potential human life is not sufficient to justify an infringement on an IVF egg or sperm donor’s procreational autonomy,[29] and that “an interest in avoiding genetic parenthood can be significant enough to trigger the protections afforded to all other aspects of parenthood.”[30]

However, other states have passed legislation that holds a person’s right to procreate at a higher level of sanctity than another’s right not to procreate.  Arizona’s Embryo Statute went into effect in August 2018.[31]  Under the Embryo Statute, courts tasked with the disposition of frozen embryos must award the embryos to the spouse who intends to allow the embryos to develop to birth.[32]  Note the must in the sentence above: even if the spouses previously agreed to a disposition of the embryos, courts must award the embryos to the spouse who intends to allow the embryos to develop to birth.[33]  The statute attempts to alleviate concerns of unwanted parenthood, stating that if the spouse who is not awarded the embryos does not consent to being a parent, the resulting child will not be a child of that spouse and will have no rights, obligations, or interests with respect to the non-parent.[34]  Proponents of this statute and others like it argue that “the decision to procreate takes place at the time of the creation of the embryo, not at its implantation.”[35]  Such assertions could confound the “freedom not to procreate” argument made in cases such as McQueen.[36] 

The questions a court must answer here are far-reaching, despite the issue of frozen embryo custody most often arising in divorce cases.[37]  Enshrining fetal personhood in law could have negative repercussions for women’s healthcare, force doctors to limit access to abortions, and put women in danger of prosecution if they have a miscarriage.[38]  Today, fetuses and frozen embryos do not have constitutional rights under the Fourteenth Amendment.[39]  A question must be asked by states: Is an embryo created for IVF its own entity, or should it be viewed as a combination of the tissue of two separate individuals, each with their own rights and opinions on its disposition?  Unless the Supreme Court finds that embryos do have such constitutional rights, it will continue to be up to the states to determine the best way to move forward with laws surrounding the disposition of frozen embryos, and whether one parent’s right not to procreate outweighs another’s right to bring the embryos to term.

[1] Ally Mauch, Sofia Vergara Wins Court Battle: Judge Rules that Ex Nick Loeb Can’t Use Embryos Without Consent, People (Mar. 3, 2021, 1:59 PM),

[2] Complaint, Doe v. Doe, SS02458 (Cal. Super. Ct. Aug. 24, 2014).

[3] Nick Loeb, Sofía Vergara’s Ex-Fiancé: Our Frozen Embryos Have a Right to Live, The New York Times (Apr. 29, 2015),

[4] Ian Mohr, The Battle for Sofía Vergara and Nick Loeb’s Embryos May Finally Be Over, Page Six (Mar. 3, 2021, 12:16 PM),

[5] Loeb v. Vergara, No. 2020-CA-0261, 2021 La. App. LEXIS 90, at *84 (La. Ct. App. Jan. 27, 2021).

[6] Mauch, supra note 1.

[7] Id.

[8] Melody Chiu, Sofia Vergara’s Ex Nick Loeb Defends Frozen Embryo Lawsuit: I’ve Dreamed of Being a Dad, People, (last updated Apr. 29, 2015, 9:35 PM).

[9] Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).

[10] State Laws on Fetal Homicide and Penalty-enhancement for Crimes Against Pregnant Women, National Conference of State Legislatures (May 1, 2018),

[11] Id.

[12] Jim Suhr, Frozen Embryos Are Property, Not Humans, Court Rules, KQED (Nov. 8, 2016),

[13] Id.

[14] 507 S.W.3d 127 (Mo. Ct. App. 2016).

[15] Id.

[16] Id. at 134.

[17] Id.

[18] See generally Christina Cauterucci, What Should Be the Fate of a Spare Frozen Embryo?, Slate (Jan. 28, 2016, 11:48 AM), (citing objections to the McQueen v. Gadberry decision by groups such as the Thomas More Society and Missouri Right to Life); What’s Wrong with Fetal Rights, ACLU, (last visited Mar. 25, 2021) (laying out various issues brought up by bills advocating for fetal rights and personhood).

[19] Andrea Michelson, Experts Say Amy Coney Barrett’s Nomination Could Threaten ICF. Here’s Why, Insider (Oct. 19, 2020, 4:33 PM),; Richard M. Doerflinger, Human Embryo Research Is Illegal, Immoral, and Unnecessary, United States Conference of Catholic Bishops (Jul. 18, 2001), (testimony of Richard M. Doerflinger on behalf of the Committee for Pro-Life Activities United States Conference of Catholic Bishops before the Subcommittee on Labor, Health and Human Services, and Education Senate Appropriations Committee).

[20] See generally Sanctity of Human Life Act, H.R. 586, 115th Congress (2017) (a bill declaring that “the right to life guaranteed by the Constitution is vested in each human and is a person’s most fundamental right; (2) each human life begins with fertilization . . . at which time every human has all the legal and constitutional attributes and privileges of personhood,” and that Congress, the states, Washington, D.C., and U.S. territories have the authority to protect all human lives as defined in this bill).

[21] See Craig Niederberger, M.D., et al., For the Supreme Court: Choose Another, 114 Fertility & Sterility 941, 941 (Oct. 13, 2020), (“Legislation that restricts doctors from using the standard treatments today, which carefully manage an egg with a sperm inside, would render those procedures impossible to perform.”).

[22] Rob Mank, Doctors Call Mississippi “Personhood” Initiative Dangerous, CBS News (Nov. 4, 2011),

[23] IVF Cost: Analyzing the True Cost of In Vitro Fertilization, CNY Fertility, (last updated Oct. 12, 2020) (“A complete In Vitro Fertilization cycle can cost anywhere from $4,900 to over $30,000.”).

[24] Making the Decision to Donate, National Kidney Foundation, (last visited Mar. 25, 2021).

[25] Loeb v. Vergara, No. 2020-CA-0261, 2021 La. App. LEXIS 90, at *3 (La. Ct. App. Jan. 27, 2021) (“Subsequently, Ms. Vergara and Mr. Loeb underwent several IVF treatments, which resulted in several pre-embryos.”).

[26] See National Kidney Foundation, supra note 24.

[27] 842 S.W.2d 588 (Tenn. 1992).

[28] Id. at 601.

[29] Id. at 602.

[30] Id. at 603.

[31] Ariz. Rev. Stat. § 25-318.03.

[32] Id. § 25-318.03(A)(1).

[33] Id. § 25-318.03(B).

[34] Id. § 25-318.03(D).

[35] Amber Macias-Mayo, Frozen Embryos: The Law at a Crossroads, Walther Bennett Mayo Honeycutt (Feb. 25, 2020),

[36] See Suhr, supra note 12.

[37] See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016).

[38] See Mank, supra note 22; A Woman’s Rights: Part 1, When Prosecutors Jail a Mother for a Miscarriage, N.Y. Times (Dec. 28, 2018), (discussing a woman charged with abuse of a corpse after miscarrying twins).

[39] See Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).

Post Image by Image Editor on Flickr.

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM),

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017),

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017),

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

By Chad M. Zimlich

In a decision handed down on Tuesday, the Fourth Circuit was confronted with the case of Central Radio Co. Inc. v. City of Norfolk, which arose from a citation of the owner of a 375 square-foot sign and a possible violation of the owner’s rights under the First and Fourteenth Amendments.

The Constitutionality of the Sign Code

The issue presented before the Fourth Circuit dealt with a zoning ordinance the governed the placement and display of signage which was adopted by the City of Norfolk (“the City”). The purpose of said code, Norfolk, Va., Code app. A § 16 (2012) (“the Sign Code”), was both to improve the “physical appearance” of the city, as well as to prevent the hazards accompanying too many, too large, or inappropriately placed signs.

Eminent Domain and a Protest Sign

The sign in question was placed by the Central Radio Company, Inc., (“Central Radio”) after a prolonged court battle with the City. The City, more specifically through the Norfolk Redevelopment and Housing Authority (“NRHA”), initiated condemnation proceedings against Central Radio, among others, back in April of 2010 in order to transfer property to Old Dominion University. After litigation, the Virginia Supreme Court ruled that the NRHA lacked authority to take Central Radio’s property under its eminent domain power, as the property was not blighted. In March of 2012, while the state court case was still pending appeal, Central Radio placed a 375 square-foot sign showing an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and the phrase “50 Years on this street, 78 years in Norfolk, 100 Workers Threatened by Eminent Domain!”

An employee of Old Dominion University brought the sign to the attention of the City, which informed Central Radio that the sign was in violation of the zoning ordinance. After Central Radio failed to remove the sign, the City issued citations for not properly obtaining a permit and displaying an oversized sign. Central Radio responded with a civil suit challenging the enforcement of the Sign Code.

Central Radio claimed that it was unconstitutional for the code to restrict their sign’s size while allowing exceptions for flags, emblems, and works of art. Additionally, they alleged that the requirement of a permit was an impermissible prior restraint on their freedom of speech, and they further claimed that the City applied the Sign Code in a discriminatory and arbitrary manner. However, the District Court for the Eastern District of Virginia disagreed and found for the City, and Central Radio appealed.

The Definition of Content-Based Restrictions on Speech

As Central Radio’s main argument revolved around content-based restrictions on speech, both as a facial and as an as applied challenge, they claimed that the Sign Code did not withstand Strict Scrutiny. However, as the Fourth Circuit’s majority opinion pointed out, a “regulation is not a content-based regulation of speech if (1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government’s interests in the regulation are unrelated to the content of the affected speech.” If it is indeed content-based, it is subject to strict scrutiny. However, if it is content-neutral it is only subject to intermediate scrutiny.

Should it be determined as content-neutral and under intermediate scrutiny, the question becomes whether the regulation “furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication.”

Content-Based Restrictions Must Target Content

First examining whether the Sign Code was adopted due to a disagreement over what speech occurs, the Court focused on any “censorial intent” shown through the relationship between the legislative purpose of the Code and the content distinctions it addresses. In doing so, it reiterated that the examination is whether the relationship is merely reasonable, not optimal. The Court rejected Central Radio’s contention that because flags and works of art “may have the same [detrimental] effect on aesthetics and traffic safety as exempted displays,” there was not a “reasonable relationship” to a legitimate state interest, making the Code content-based. The Court instead concluded that because the Code applies regardless of the message conveyed and only restricts the “time, place, or manner” of a sign’s location, it had a reasonable relationship to legitimate interests and was not a content-based restriction. The Court went on to distinguish “art” as an acceptable category for an exemption in this case, as the exemption was also content-neutral which bolstered the City’s argument that the Code was not content-based.

Because the Code was determined to be content-neutral, the Court continued its analysis based on an intermediate scrutiny rationale. This was an easy hurdle for the City to surpass, as aesthetics and traffic safety “are substantial government interests.” The Court even pointed out instances of drivers honking horns in support as evidence that the sign had an effect on traffic. Additionally, even the type of speech attempted by Central Radio was not eliminated, only restricted in size, leaving it an alternative, albeit smaller, means of communicating. The Court reiterated that there was no constitutional right for having the location or manner of speech that the speaker would see as most desirable.

Next, the Court examined the claim that the Sign Code was selectively enforced, which would have required Central Radio to show that there was a discriminatory effect on them which was motivated by a discriminatory purpose. However, Central Radio had not submitted the requisite evidence to prove such a claim, and therefore, the Court determined the district court was proper in its dismissal of this claim.

As for the claim of prior-restraint of speech in the granting of permits for signage, the Court also found for the City. While there are procedural safeguards for the decision-making processes relating to speech, those safeguards are in place only for content-based restrictions, which the Court had already determined were not present here. There was no circumstance of “unlawful favoritism,” nor was there an arbitrary amount of discretion given to the permitting officials.

A Brief Dissent

A dissenting opinion written by Judge Gregory questioned the majority’s lack of consideration of the political speech present in the case. The fact that the speech in question was prompted by the government’s attempt to seize Central Radio’s land was something that should not be ignored. Furthermore, the dissent disagreed with the majority’s conclusion that the City had demonstrated a “reasonable fit” between the governmental interest and the regulation. The dissent also felt that the Code discriminated based on content, even though it was asserted to have a content-neutral purpose.

A Banner Day for the Norfolk Sign Code

The Majority’s Opinion reiterated the standard for content-neutral speech restrictions, and the Sign Code passed its muster. It affirmed the district court’s ruling of summary judgment in favor of the City, and upheld the Code as constitutional, allowing for the citation of Central Radio and the removal of its sign. Apparently size does matter.