This is no surprise coming from Parker. An ally of then-Chief Justice Roy Moore of Ten Commandments-in-the-courthouse fame, Parker has denounced Roe v. Wade as a “constitutional aberration” and suggested that state courts should resist implementing the Supreme Court’s ruling on same-sex marriage.
I’ll quote at length so you know I’m not exaggerating about theocracy. The Alabama constitution’s “sanctity of unborn life” provision, he wrote, “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.”
Alabama law, he said, “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.”
At one point, he described the embryos — frozen within a few days of fertilization, when they consist of perhaps a few hundred cells — as “little people.”
Whoa. There’s a part of the U.S. Constitution that might be relevant here. It provides that the government — and that includes the government of Alabama — “shall make no law respecting an establishment of religion.” If Parker has heard of this part of the First Amendment, he never mentions it.
The plaintiffs are three infertile couples whose embryos were destroyed because of what they claim is negligence on the part of the fertility clinic that froze the embryos for later use. (A wayward patient somehow wandered through an unlocked door, picked up a container with the embryos and dropped it.) The couples sued under the state’s 1872 Wrongful Death of a Minor Act, which the Alabama Supreme Court has previously said applies to “unborn children.”
Infertility takes a huge emotional, physical and financial toll; embryos are precious, whatever you think of their moral status. So these are sympathetic plaintiffs, although the fertility clinic pointed out that they’d had successful procedures resulting in children; had embryos remaining; and had variously consented to having the remaining embryos destroyed after five years or in other circumstances.
So, is a frozen embryo an unborn child?
The trial court said no. The Alabama Supreme Court disagreed, a result, according to the dissent, that “no court — anywhere in the country — has reached.”
The ruling went off the rails from the start. “All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” wrote Justice Jay Mitchell.
Whoa again. “All parties” in this case might agree, but there’s vigorous debate, as much a matter of theology as of science, about when life begins — most relevantly, whether it begins at fertilization, before implantation in the uterus. It’s nonsensical to think that a law enacted in 1872, before there was any concept of in vitro fertilization, would apply to such situations.
Mitchell, citing the state constitution, said any ambiguity should be resolved in favor of the embryo. How contorted is this? He conjured up a hypothetical future scenario in which fetuses could be brought to term in artificial wombs to conclude that such children would not be considered people entitled to legal protections; ergo, “extrauterine children” must be deemed unborn children covered by the law.
As I said, welcome to the theocracy. This being Alabama, even the dissenting justice referenced his “deeply held personal views on the sanctity of life.”
This decision is dangerous on two levels — one immediate, the other longer-term but equally sinister.
The imminent danger is to the availability of IVF in Alabama. As the clinic and the Alabama Medical Association argued, if embryos are unborn children protected by the wrongful-death law, creating and storing embryos will be unduly risky.
The ruling “almost certainly ends the creation of frozen embryos through in vitro fertilization” in the state, wrote dissenting Justice Greg Cook. The costs of exposure to civil lawsuits would be enormous, and — although Alabama’s criminal homicide law refers only to the “unborn child in utero” — who knows what could happen in terms of criminal prosecution? Ominously, the Alabama Supreme Court noted it had “no occasion” to decide that question.
The longer-term danger — indeed the apparent longer-term goal — is to raise and expand the definition of unborn personhood, to go after birth control methods and reproductive technologies that involve fertilized eggs. Will fertility clinics be permitted to dispose of unused frozen embryos? Could states prohibit in vitro fertilization altogether? Will IUDs, birth control pills or the morning-after pill be banned?
The ultimate aim, of course, is to have the fertilized egg declared a person from the moment of conception, under state constitutions and, ultimately, the 14th Amendment. And guess who’s been at the forefront of that movement. Alabama’s now-chief justice, Tom Parker.
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