Alabama IVF decision is bad law with religious filigree


(RNS) — After the Alabama Supreme Court decided last week that an embryo is a person, GOP presidential candidate Nikki Haley told CNN’s Jake Tapper, “I think that the court was doing it based on the law, and I think Alabama needs to go back and look at the law.”

But the decision was not actually based on the law — at least not according to the (as the originalists say) “public meaning” of the word “based.” As the dissent by Justice Greg Cook makes abundantly clear, it ignored existing law and the court’s long-standing rules of interpretation to achieve a desired result.

At issue is the state’s 1872 Wrongful Death Act, which sets the terms for filing a civil suit when a person dies — in this case, the accidental destruction of a number of frozen embryos in a cryogenic facility in Mobile. Seven of the nine Alabama justices took the position that an embryo is a child person from the moment of conception and is therefore covered by the act.

Cook, saying he believes in originalism, notes that the dictionary decision from the mid-1800s meant “child” to apply only to “infants from their birth.” He points out that earlier Alabama caselaw, which was simply ignored in the case’s main opinion, specifically disallows civil cases to be brought for the death of an embryo or fetus.

The dissenting justice likewise shows that the main opinion (signed by three of the justices) abandons the court’s practice of aligning the state’s definition of personhood in civil cases with its definition for purposes of criminal prosecution. In 2006, Alabama redefined who could be deemed a victim of a criminal homicide to include an “unborn child in utero” but not a frozen embryo. 

“Thus,” writes Cook, “unless and until the Legislature updates Alabama law in such a way that demonstrates that a ‘frozen embryo’ is a ‘minor child,’ this Court remains bound by the original public meaning of that term as it was understood in 1872 when the Legislature passed the Wrongful Death Act.”

Much of the media attention has centered on the concurrent opinion written by Chief Justice Tom Parker, and that opinion is indeed striking for the way it bases itself, well, on Christian doctrine.

In 2018, Alabama voters passed an amendment to the state constitution stating that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” This was incorporated into the constitution as “Section 36.06 Sanctity of unborn life.” Parker focused his concurrence on the meaning of “sanctity.” 

After quoting, among other texts, the Bible, St. Augustine, Thomas Aquinas and John Calvin, the chief justice writes:

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

It’s as if Parker had never heard of the establishment clause.

While it’s tempting to treat his concurrence as an example of saying the quiet part out loud, I’m inclined to see Parker as a judicial outlier. Before joining the court, he was a prominent Christian rights activist and an aide and ally of Alabama Chief Justice Roy Moore, who was suspended from office in 2016 after ordering state judiciary officials not to provide marriage licenses to same-sex couples.

He is also an open advocate of the Seven Mountain Mandate, which holds that Christian believers should control all aspects of society.

Of the six other justices who agreed that the Wrongful Death Act applies to frozen embryos, none signed on to Parker’s opinion nor signaled that they approved of its faith-based argumentation. Let us note that Cook, the dissenter, is a deacon at his Southern Baptist Convention-affiliated church. Being a religious conservative doesn’t necessarily make you a theocrat.

For the record, let us also note that Parker has himself run afoul of the Decalogue’s injunction against bearing false witness in his zeal to claim that IVF won’t grind to a halt in Alabama — as Cook predicts and as has in fact happened. Arguing that IVF can proceed without creating multiple (and therefore some frozen) embryos, he falsely asserts that in Australia and New Zealand, “prevailing ethical standards dictate that physicians usually make only one embryo at a time.”

The footnote to this assertion refers to a section of those countries’ Code of Practice for Assisted Reproductive Technology Units that has to do not with making but with transferring one embryo at a time. As with IVF elsewhere, they create multiple embryos when they can Down Under.

Be all this as it may, there’s no question that Alabama has laid the groundwork for restoring, let’s call them, traditional family values.

Yes, support for IVF in the citizenry may soon lead the legislature to exempt frozen embryos from the purview of the Wrongful Death Act. But if it doesn’t, the state supreme court could align its civil and criminal definitions of personhood by letting a prosecutor bring homicide charges against someone who willfully destroys a frozen embryo.

Meanwhile, there’s same-sex marriage, which the state of Tennessee will now permit officials to refuse to perform should the U.S. Supreme Court reverse its 2015 Obergefell decision. In 2006, Alabama voters approved a constitutional amendment declaring a marriage between two persons of the same sex to have “no legal force or effect in this state.”

You can find this enshrined in the constitution under the heading: Section 36.03. Sanctity of Marriage.

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