TITLE: The Alabama Supreme Court opinion holding that embryos are children, explained
https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo
EXCERPT: The facts underlying the Burdick-Aysenne case are very unfortunate, and they allegedly involve negligent actions that very much should have triggered a lawsuit.
Three couples received IVF treatments, and many of the resulting embryos were stored in a medical center’s cryogenic nursery. According to the state Supreme Court, in 2020 “a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway,” where they removed several embryos and destroyed them. The couples then sued the medical facility for failing to adequately secure these embryos.
So, if you ignore the fact that Burdick-Aysenne involves fertilized embryos, it could be a fairly unremarkable case. The plaintiffs entrusted something precious to the defendants’ care, and the defendants failed to protect it. In addition to suing under the Wrongful Death of a Minor Act, the plaintiffs also raised ordinary negligence and breach-of-contract claims.
That said, they had good reason to prefer a court decision awarding them victory under the wrongful death statute because that statute allows them to collect more money than they would be entitled to under their alternative legal theories. As Justice Will Sellers wrote in a partial dissent, “these cases concern nothing more than an attempt to design a method of obtaining punitive damages.”
The state’s wrongful death statute permits the parents of a deceased “minor child” to sue anyone who caused the death of that child, if the death was “caused by the wrongful act, omission, or negligence of any person, persons, or corporation.” The plaintiffs claimed that a frozen embryo counts as a “minor child” under this statute.
Most of the state’s justices obliged this attempt to read the wrongful death statute broadly, and they did so in an opinion that is laden with the sort of rhetoric commonly found in anti-abortion literature. Among other things, the court’s majority opinion claims that a provision of the state constitution proclaiming 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” requires Alabama’s courts to “construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children” — at least when such a construction is “lawful and appropriate.”
The path that led the state Supreme Court to conclude that a frozen embryo counts as a “minor child,” however, involved some fairly tortured construction of state law. And it also is just the latest step in a series of decisions stretching back more than a dozen years.
In 1993, the state Supreme Court held that the wrongful death statute does not apply “if the fetus was not viable at the time of death.” This decision, however, was overruled in Mack v. Carmack (2011).
Mack justified this decision to overrule precedent by pointing to a new Alabama criminal law, which made it a homicide crime to kill “an unborn child in utero at any stage of development, regardless of viability.” The Wrongful Death of a Minor Act permits civil lawsuits, not criminal prosecutions, so it is far from clear why this amendment to the state’s criminal law should have any impact whatsoever on a separate, civil statute.
Nevertheless, Mack concluded that “it would be ‘incongruous’ if ‘a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly.’” And so it read the criminal statute to effectively extend the scope of Alabama’s civil law.
More recently, in Burdick-Aysenne, the defendants argued that Mack does not apply to cryogenic embryos. Again, Mack relied on a criminal statute that prohibits killing an “unborn child in utero” to extend the state’s civil wrongful death statute. But embryos stored in a cryogenic facility are not “in utero.” The Alabama Supreme Court, however, rejected this argument.
If you are confused by all of these legal developments, you should be. In Mack, the state Supreme Court held that a criminal statute could be read to modify an entirely separate, civil statute. Then, in Burdick-Aysenne, the Court held that the civil statute should be extended again to apply to embryos outside of the uterus — even though the statute that the court relied on in Mack applies only to an “unborn child in utero.”
TITLE: “Extrauterine Children” and Other Nonsense Wrought by the Fetal Personhood Movement
https://verdict.justia.com/2024/02/21/extrauterine-children-and-other-nonsense-wrought-by-the-fetal-personhood-movement
EXCERPT: The majority begins by noting a “weighty concern” of the plaintiffs: if being a “child” necessitates coming from a “biological womb,” then “even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a ‘child.’” Huh? Never say never, but there is no evidence that ectogenesis is coming soon. Scientists have struggled for decades to figure out how to create a womblike environment that might enable continued gestation for a premature infant—and even that has yet to come to pass. There is certainly no scenario in which a toddler exists and yet has never touched a womb. But the majority poses this possibility to detach pregnancy from wombs and to make the comparison between embryos and human children less forced.
The majority claims that textual language is “clear” and then resorts to the dictionary (actually four dictionaries) to explain its meaning. It then resorts to non-helpful observations like the fact that a person who is pregnant is sometimes referred to as being “with child”—why would we say that if “child” did not include all the stages of human development from blastocyst to newborn? After all, the court notes, it is the public policy of Alabama to “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” This language is from Article 1, Section 36.06(b) of the Alabama Constitution, in a section titled the “Sanctity of Unborn Life.” It has no obvious relevance to the interpretation of the wrongful death law, but the majority was undeterred.
After the tour of online dictionaries, sprinkled with a few quotes from Blackstone and quotes from a handful of unrelated cases, the court pronounces its work complete. “The upshot here,” the majority writes, “is that the phrase ‘minor child’ means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: ‘an unborn or recently born’ individual member of the human species, from fertilization until the age of majority.” The court never discusses the wrongful death statute itself, its underlying policies or purposes, or the consequences of construing the statute in this odd way. Rather, it simply concludes that there is nothing about the law that “narrows that definition to unborn children who are physically ‘in utero.’” It refers to the difference between a frozen embryo and a living human child as a matter of “ancillary characteristics.”
The majority chides the defendant for seeking “an unwritten exception for extrauterine children,” as if that phrase is anything but nonsensical. The court then chides the defendant for pointing out the obvious impact of a ruling for the plaintiffs on the ability to conduct IVF in Alabama. After all, the court lectures, “judges are required to conform our rulings ‘to the expressions of the legislature, to the letter of the statute,’ and to the Constitution, ‘without indulging a speculation, either upon the impolicy, or the hardship, of the law.’” And yet, the majority does quite the contrary. Although it refers to the statutory text as “sweeping and unqualified,” the only relevant word in the statute is “child.” And while the majority says it is obvious that word includes “all children, born and unborn, without limitation,” there is simply no support for that interpretation. The majority realizes this and thus relies on conclusory framing rather than analysis.
Chief Justice Parker’s Concurrence: Theocracy, Here We Come
Chief Justice Parker writes separately to explain why embryos and fetuses are no different from children under Alabama law. The “Sanctity of Unborn Life” language in the state constitution was adopted in 2022. According to Chief Justice Parker, that expression of state policy must guide every judicial act of interpretation.
Like Justice Mitchell, Chief Justice Parker also consults the dictionary. But instead of looking up the word “child,” he looks up the definition of “sanctity.” He finds that it means “1. Holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations, or rights.” He then rejects the idea of “inviolability” because it has “secular connotations” and concludes that the people of Alabama chose “sanctity” because of its religious meaning. And he then treats the fine people of Alabama to a long sermon on why human life must be protected “from the earliest stages of development” because man was created “in the image of God.” Indeed, he argues, all legal restrictions on the taking of human life are rooted in the Christian bible. He then says the quiet part out loud:
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 destructions 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.
And that is the reason that he believes frozen embryos are children.
Although Parker’s rhetoric is shocking to those familiar with the Establishment Clause of the First Amendment, his and Justice Mitchell’s opinions raise important questions about the stakes of fetal personhood. Of course, constitutional fetal personhood would lead to states passing total abortion bans and perhaps prosecuting pregnant people—instead of only their doctors—for abortions. And the longstanding problem of prosecuting pregnant people for their behavior while pregnant would only get worse. However, there are less obvious consequences of fetal personhood. One such consequence is the criminalization of fertility treatments, as the Alabama decision portends.
TITLE: America is facing a threat of biblical proportion: The rise of Christian nationalism
https://thehill.com/opinion/campaign/4479354-america-is-facing-a-threat-of-biblical-proportion-the-rise-of-christian-nationalism/
EXCERPT: What’s truly shocking is tracking how the GOP’s embrace of Christian nationalist ideology has [wheedled] its way into our government, most concerningly on the state Supreme Courts that will hear all manner of legal challenges to the 2024 election results. But the corrosive impact of Christian nationalism goes beyond just Trump, as Alabama’s Supreme Court again reminded us this week.
In a sweeping ruling that reads like a biblical sermon, Alabama’s conservative justices ruled that the frozen embryos used for in vitro fertilization (IVF) are legally people. As a result, doctors and those handling embryos can be held legally liable for destroying them, the same as if those doctors had murdered the woman seeking those embryos for an IVF procedure.
The court offered no scientific rationale for its decision. Instead, Chief Justice Tom Parker discards the consensus scientific opinion on embryos entirely in favor of a long lecture on biblical moralism. The casual reader could easily mistake Parker’s diatribe for something published by Iran’s ultra-conservative ayatollah.
“The theologically based view of the sanctity of life adopted by the people of Alabama encompasses the following,” Parker wrote. “(1) God made every person in His image; (2) each person therefore has 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.”
Parker’s ruling makes no effort to hide his preference for Christian biblical legalism over the Constitution. He also shows no concern with the 14 percent of Alabamians who don’t identify as Christian and might have some strong feelings about being forced into treating a judge’s conservative interpretation of Christian doctrine as law.
Unfortunately for the rest of the country, the GOP is full of powerful activist groups eager to expand Alabama’s example to the national stage.
As Axios first reported this week, Trump-aligned think tanks, including the powerful Center for Renewing America, are actively building a roadmap for integrating Christian nationalist principles into a second Trump administration. Those principles include invoking the Insurrection Act on Trump’s first day in office to crack down on liberal protesters, banning immigration of non-Christians into the United States, overturning same-sex marriage and banning access to contraception.
Putting Christian nationalism front and center in Trump’s second term is also a key part of Project 2025, the very public effort by Trump allies to reshape the executive branch into a tool of unchallenged one-man rule. Trump’s Christian nationalist allies don’t hide these efforts because they don’t view them as something shameful. Rather, they consider themselves the vanguard of a so-called “moral restoration” of the United States, which can only be achieved by destroying the democratic structures that allow non-Christians to immigrate, vote and seek public office in this country.
According to Project 2025’s authoritarian manifesto, “Freedom is defined by God, not man.” In the Christian nationalist reading of American history, too many non-Christians enjoy too much freedom, and even unconstitutional actions are justified if they return America to Trump’s imagined national past. If only God can define Americans’ freedom, it matters a great deal that a critical mass of Republicans view Trump as the reborn Christ.
The Republican Party’s separation from democracy is accelerating, and the extreme theocratic actions of the Alabama Supreme Court should be seen as the first salvo in Christian nationalists’ effort to reshape every aspect of American life and law. If Trump is elected this November, expect to see conservatives across the country pushing to reshape their state judiciaries — and the rest of the country — in Alabama’s antidemocratic image.