Let’s Thank the Alabama Supreme Court
I never thought I’d be grateful to the Alabama Supreme Court for anything, but now I am. With its decision deeming frozen embryos to be children under state law, that all-Republican court has done the impossible. It has awakened the American public, finally, to the peril of the theocratic future toward which the country has been hurtling.
The U.S. Supreme Court’s June 2022 decision that erased the constitutional right to abortion was an alert, too, of course, leaving Republicans scrambling to distance themselves from the fruits of the court they had populated with such glee only a few years earlier. The fact that religious doctrine lay at the heart of Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization was perfectly clear, as I observed then. Dobbs is usually discussed today as a conservative power play, however, rather than as a projection of a religious view of fetal life onto both a largely unwilling public and the Constitution itself.
But there’s no avoiding the theological basis of the Alabama court’s solicitude for “extrauterine children,” to use the majority opinion’s phrase. In a concurring opinion in which he referred to embryos as “little people,” Tom Parker, Alabama’s chief justice, rested his analysis on what’s become known as the Sanctity of Unborn Life Amendment that Alabama voters added to the state’s constitution in 2018. “It is as if the people of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you. Before you were born I sanctified you,’” the chief justice wrote.
The decision was a shock, causing immediate chaos and heartbreak as fertility centers in Alabama paused their in vitro fertilization practices, crushing dreams of long-deferred parenthood even for couples whose embryos were days away from being transferred. (The cowardice of the medical profession is a notable feature of the post-Dobbs era; listen to Monday’s episode of “The Daily” for one young woman’s despairing account of what she experienced.)
But should it really have been such a surprise? The country is awash in religiosity when it comes to human reproduction. More than 120 Republican members of the House of Representatives have signed on as co-sponsors of the Life at Conception Act. Among them is their leader, Speaker Mike Johnson, an evangelical Christian who has called abortion “an American holocaust.” The bill provides that “The terms ‘human person’ and ‘human being’ include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning or other moment at which an individual member of the human species comes into being.”
While the bill doesn’t mention in vitro fertilization, the implications for I.V.F. are clear on the face of its text. Now many of its co-sponsors are urgently assuring their constituents that they don’t really mean that.
