When SCOTUS leaves it up to the States...
In Alabama, women can now be forced to have babies they don't want and can’t have babies that they do. Last week, the Alabama Supreme Court ruled that frozen embryos have the same status as living children in wrongful death lawsuits. The decision was 8-1. All nine of the justices on the Alabama Supreme Court are Republicans. You can find the 131-page opinion here.
Chief Justice Tom Parker wrote a concurring opinion focused on what Alabama’s super-majority Republican legislature meant in 2018 when it adopted the so-called Sanctity of Unborn Life Amendment, Alabama’s fetal personhood law. [Full disclosure: my husband, Bob, ran against Parker and lost in 2018.] “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Parker wrote. Taking the penchant of U.S. Supreme Court Justices like Sam Alito to search in the far reaches of English history for commentators to justify importing medieval views into our modern-day laws, Parker seized upon 17th Century commentator Petrus Van Mastricht.
Parker concludes Van Mastricht’s views are consistent with those of St. Augustine and Thomas Aquinas before moving on to quote Genesis (the King James version) for the proposition that “Man's creation in God's image is the basis of the general prohibition on the intentional taking of human life.” He notes that taking a life without justification would incur “the wrath of a holy God” and that the Sanctity of Unborn Life Amendment to the Alabama Constitution “recognizes that this is true of unborn human life no less than it is of all other human life.” Quite a heady brew of authority for a secular court.
Perhaps the strangest part of this decision is that all of the parties accepted the view that embryos prepared for in vitro fertilization (IVF) proceedings qualify as “lives.” The question that the court set out to decide was whether those “lives” were protected by the state’s wrongful death statute so that people could sue for negligence by a hospital or clinic in the disposal of embryos. The decision permits three couples to bring suit after their frozen embryos were destroyed when another patient removed them from a cryogenic freezer and dropped them on the ground.
It only took five days for the University of Alabama at Birmingham, a major university medical hospital in Alabama, to shut down its IVF program. That happened because although this case is only about civil liability under the Wrongful Death statute, by analogy, it could be applied in other legal contexts, perhaps even extending to criminal prosecutions. The decision makes IVF too risky for providers to continue. The prospect of doctors and other medical personnel finding themselves subjected to civil lawsuits or criminal prosecution has shut down, at least temporarily, access to medical care for women who want to become pregnant and have children. The irony is rich. It turns out that the Alabama Supreme Court’s decision isn’t pro-life at all.
No one on the court can say they didn’t understand the risks the decision would bring to IVF availability. The Medical Association of the State of Alabama filed an amicus brief advising the court that if it held that embryos were children for purposes of wrongful death lawsuits, access to fertility treatments could become severely limited.
Chief Justice Parker has an answer for this. He wrote, “For decades, IVF has been largely unregulated in the United States, with some commentators even comparing it to the Wild West.” He suggested that it would be up to the industry to adopt practices that would “drastically reduce the chances of embryos being killed, whether in the creation process, the implantation process, the freezing process, or by willful killing when they become inconvenient.”
Judge Greg Cook, a jurist with impeccable conservative credentials, was the lone dissenter on the court. Even in dissent, he wrote about his “sympathy with the plaintiffs and my deeply held personal views on the sanctity of life.” But he made a textual argument that the court was expanding the meaning of the Wrongful Death Act beyond what the legislature intended, since “the Wrongful Death Act does not address frozen embryos.”
What are the frozen embryos that the Justices and all of the parties agreed were “lives” in this case? The medical experts at Johns Hopkins explain:
Justice Cook wrote that he was dissenting not because the embryos weren’t lives, but because as a textualist, he was bound by the strict language of the wrongful death law under consideration, which did not include them: “I specifically asked the defendants at oral argument: ‘[s]o, is it your position that … these were lives?’ And they responded: ‘It is, Justice Cook. I think that the … embryo is a life, but the issue today is whether an embryo is a child protected under the [Wrongful Death Act].’"
If you’re depressed, you’re not alone. This is the post-Dobbs world, where personhood bills that mean fetuses are people from the moment of conception can have consequences far beyond those even people who worked for Roe v. Wade to be reversed anticipated. Other litigants will undoubtedly cite the Alabama decision as good law that should be adopted in their states, as they did when Alabama adopted measures that made it more difficult for people to vote or for immigrants to obtain medical care, schooling, and access to services in the state. Alabama has often been a proving ground for the conservative legal agenda.
The National Council of Jewish Women issued a statement that said: “This weekend’s decision from Alabama’s highest court classifying frozen embryos as children is wildly outrageous and sets a harmful precedent that violates separation of church and state and will make it nearly impossible for families in Alabama to access fertility treatments such as in-vitro fertilization (IVF) …Religious freedom exists as a shield to protect religious minorities, and should never be used as a sword to discriminate. Weaponizing a personal religious belief to create law for millions is not just unconscionable, but unconstitutional.”
The decision includes the word “Bible” three times. “God,” “godliness,” or a similar word appears 41 times. The word “sacred,” five times. None of this is accidental. During a recent interview that you can read all about here, Chief Justice Parker said he is in favor of the “Seven Mountain Mandate,” a theological approach that calls on Christians to impose fundamentalist values on all aspects of American life. Parker said that “God created government” and that it’s “heartbreaking” that “we have let it go into the possession of others.”
The First Amendment prohibits the establishment of a national religion, and that same prohibition applies to the states through the 14th Amendment. What’s heartbreaking in Alabama this week is its Supreme Court Justices’ decision to abandon the Constitution and laws they took an oath to serve, in favor of advancing a religious agenda.
We’re in this together,
Joyce
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I'm not sure what all this angry, chest- thumping, bullying, "don't tread on me" thing that we've come to call Christianity is, but here's what I do know:
It isn't the Gospel.
It isn't Good News for the poor and marginalized.
It isn't the Prince of Peace.
It isn't the perfect love that casts out fear.
It isn't Jesus by any measure.
It's a toxic cocktail of power, control, fear, nationalism, and white privilege- and it looks much more like the bloated opulence of Rome than the early Church that resisted it.
Excerpts from John Pavlovitz
Long but so telling, this quote by Dave Barnhart, a traditional Christian pastor, is on point about these Alabama "justices":
"The unborn" are a convenient group of people to advocate for. They never make demands of you; they are morally uncomplicated, unlike the incarcerated, addicted, or the chronically poor; they don't resent your condescension or complain that you are not politically correct; unlike widows, they don't ask you to question patriarchy; unlike orphans, they don't need money, education, or childcare; unlike aliens, they don't bring all that racial, cultural, and religious baggage that you dislike; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them, because they cease to be unborn. It's almost as if, by being born, they have died to you. You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus but actually dislike people who breathe.
Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn."