On February 16 the Alabama State Supreme Court ruled that fertilized eggs are persons, calling them “extrauterine children.” This allows would-be parents to sue an in vitro fertilization (IVF) clinic for wrongful death when frozen embryos are accidentally destroyed (which was the subject of the case before the court). It has the side effect of shutting down IVF treatments in Alabama (including those already in progress) as clinics try to protect themselves from lawsuits and potential prosecution.
I can’t say I was surprised by the ruling. A significant proportion of the anti-choice / pro-forced birth movement is opposed to IVF, and the 2022 Dobbs ruling that overturned Roe v. Wade allowed state courts and legislatures to decide these extremely personal choices that properly belong to individuals.
As I often do with important court cases, I read the ruling. I’m not a lawyer, but most court rulings – especially at the higher levels – are fairly easy to follow, if you don’t mind wading through dozens and sometimes hundreds of pages of precedents and legal reasoning. I want to know not just what the court ruled, but why they ruled that way – and what it’s likely to mean going forward. Most times I respect the reasoning even if I disagree with the conclusions of the court.
Not so in this ruling.
A ruling from the Middle Ages
I felt like I was reading something from the Middle Ages, perhaps even a transcript from one of the witch trials. It begins with the assumption that human life begins at fertilization and therefore a frozen egg is an unborn child. From there it was a short walk to the decision the court had already made. Chief Justice Parker included a concurring opinion where he sermonized on “the sanctity of life” and “godliness” and quoted from the King James Bible, the Manhattan Declaration (a conservative Christian manifesto), Thomas Aquinas, and John Calvin.
My first reaction was “this is insanity.” But my reaction was wrong. For the ruling to be insane there would have to be mental illness involved. Our mainstream society tends to blame any human action we can’t understand on mental illness, and this simply isn’t the case. Perfectly sane and rational people often do horrible things, sometimes for financial reasons, but more often because they genuinely believe something evil is good.
This ruling isn’t insanity.
It’s theocracy.
The Theocratic Court of Alabama
The first amendment puts, in the words of Thomas Jefferson, a wall of separation between church and state. It does not and cannot put a wall between religion and politics. Religion is more than which supernatural propositions we affirm and which ones we reject. Religion is also our highest values and virtues. Politics are how we put our values and virtues into action in collective society. Our religion informs and influences our politics, whether we are Pagans, Christians, Jews, or anything else, and whether we are politically liberal, conservative, or anything else.
Whether someone’s politics are grounded in their religion or if their religion is grounded in their politics is a valid question, but one of lesser importance in the matter at hand.
At the same time, we live in a religiously diverse nation. If politicians (including judges) wish to inject their religious values into the common society (again, that’s not necessarily a bad thing) they must ground them in secular principles that apply to Pagans, Muslims, atheists, and everyone else, not just conservative Christians. The Alabama State Supreme Court is not a church court.
The law is a great and terrible thing. It forces people to do things they may not want to do (like paying taxes) and forces them to not do things they may want to do (like smoking marijuana). Some of this is necessary for creating an orderly society and promoting the common good – what is necessary and what is oppressive is a matter of legitimate debate. But when a religious majority – or a minority gerrymandered into power – forces people to live by the values of one particular religion, it violates the first amendment and it violates people’s basic human rights.
The Alabama IVF case is not the ruling of a court in a constitutional republic. It’s the ruling of a theocracy.
The ruling contains both factual and legal errors
Courts in this McConnell-Trump era of “textualism” and “originalism” argue that they must apply and enforce laws as they were understood when they were originally enacted, no matter how long ago that was, or what may have changed in the meantime. By this standard, the infamous Dred Scott decision was rightly decided, because slavery was legal when the Constitution was ratified.
But even by this standard, the Alabama IVF ruling contains a critical error.
In 2018 Alabama voters approved an amendment to the state constitution to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” My opinion on the illegitimacy of this amendment notwithstanding, it became the law in Alabama after the Dobbs decision took away the right to an abortion.
Even those of us who are strongly pro-choice understand that “unborn child” is a legitimate term. A fetus eight months into development may very well be able to live outside the womb even without extraordinary medical care. They are deserving of some legal protection, though exactly how much is a matter of debate.
But the Alabama court takes this common understanding of “unborn child” and arbitrarily applies it to any fertilized egg. If this isn’t judicial overreach I don’t know what is.
If you freeze a two-year-old child or a two-day-old child or an eight-month-old fetus, it will die. If you freeze a fertilized egg, it will survive indefinitely and once thawed and implanted, will begin to grow. These are categorically different things and so laws protecting unborn children do not apply to frozen embryos. The Alabama court made both a factual error and a legal error.
Some traditions say that human life begins when a post-birth child takes its first breath. I argue that it begins when the fetus can live outside the womb without extraordinary medical care. I also argue that we have no way of knowing exactly when human life begins and so we must leave these decisions to individuals, not to legislatures or courts.
We may never be able to conclusively say when human life begins, but this much we can say:
There are no such things as “extrauterine children.”
Supporting IVF for political expediency
Because of this ruling, a wrongful death lawsuit can proceed, and an IVF clinic is being sued for damages. Not surprisingly, IVF clinics in Alabama have stopped treatments, despite the court’s insistence that such consequences were unlikely and therefore irrelevant.
Almost all Republican politicians have called for legislation to protect IVF treatments. Let’s be honest: IVF treatments are very expensive, and many health insurance policies do not cover them, or do not cover them entirely. So people who get IVF treatments tend to be wealthy, and wealthy people often contribute to political campaigns – including Republican campaigns. Plus Republicans tend to be on the side of “more babies is a good thing” whether those babies are wanted by would-be parents or needed by society.
IVF treatments should be protected, and doing the right thing for the wrong reason is still doing the right thing. So I’m glad that most Republicans are on the right side of an issue for a change.
However…
IVF treatments fertilize eggs in a laboratory. The success rate (success meaning a full term pregnancy) is less than 50%, and goes down significantly with the age of the mother. Most embryos will not survive. Further, IVF tends to be done in batches, and once there is a success the rest are not needed and are typically destroyed.
If someone truly believes that human life begins at fertilization – as this court contends and as many anti-choice zealots insist – then IVF is ethically problematic. The Catholic Church forbids IVF, saying it “involves the massive destruction of human life, distorts the meaning of the sexual act between husband and wife, and treats the child like a manufacturing product, not as a gift.”
Republicans and others who support IVF while still trying to outlaw abortion because “life begins at conception” are making a decision from political expediency, not from ethical reasoning.
We told you this was coming in 2016 – more is on the way
I supported Hillary Clinton in 2016 for one reason: to preserve Roe v. Wade and the legal concept of the right to privacy. Too many people decided they just didn’t like Hillary and stayed home, because “Roe is settled law.” And now we have Gorsuch, Kavanaugh, and Handmaid Amy on the Supreme Court, and the rights protected by Roe v. Wade are gone.
They’re coming for birth control next. People who believe human life begins at fertilization call IUDs “abortion devices” – that was the core issue in the Hobby Lobby case. I’m seeing arguments almost every day about how birth control pills are damaging to women’s health (despite about 60 years of evidence to the contrary). In his Dobbs concurrence, Clarence Thomas called for revisiting Griswold v. Connecticut, the 1965 case that established the right to birth control.
Obergefell (same sex marriage) and Lawrence v. Texas (the decriminalization of same sex relations) will be next.
Donald Trump and most Republican legislators don’t care about birth control. But a significant minority do, and they’re well-organized and well-funded, and so Donald Trump and most Republican legislators listen to them. Their goal is both simple and terrifying: overturning the sexual revolution. They believe that sex is sinful and only for procreation, not something that’s inherently good for our physical and emotional health. They believe sex should have “consequences” – and only approved sexual activities should be permitted.
Remember that prior to Lawrence v. Texas, oral sex between straight married couples was illegal in 18 states.
They want a return to the time when straight white Christian men were in charge and everyone else knew their place, especially women.
Vote like your rights depend on it – because they do
I expect new laws at both the state and federal level will protect IVF. There may be limitations on the process, and that’s not necessarily a bad thing. IVF is a potentially-dangerous technology, and while it’s been an overwhelmingly good thing so far, who knows where it could go. We should proceed with deliberation.
But I’ll be surprised if this ruling is overturned at the state level, because that would chip away at one of the core arguments of the pro-forced birth contingent. A law protecting IVF will not protect IUDs, nor will it stop the far right from finding a convenient case to overturn Griswold. That will allow states like Alabama, Texas, and Florida to start regulating other forms of birth control, such as making them available only to married couples.
We need to encode the principles of Roe v. Wade into federal law. The only way to do that is to elect a Democratic President and strong Democratic majorities in both the House and the Senate. It will likely take multiple election cycles to accomplish this.
The pro-forced-birth movement worked for almost 50 years to overturn Roe v. Wade. They were finally successful. We cannot give up because we don’t have immediate success. Those in safe blue states cannot abandon those of us in red states to the whims of the theocrats.
First they came for abortion. Then they came for IVF. They’ll keep coming for more and more rights until they’re stopped.
Vote. And do everything else you can do to protect your rights and the rights of others.
But whatever else you do, vote.
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