A Theocratic, Anti-Abortion Win in Alabama

The "same people" (to apply a tribalistic phrase from the right to that tribe) who for decades complained (sometimes with justification) about left-wing jurists "legislating from the bench" will no doubt turn around and celebrate a ruling by the Alabama Supreme Court to the effect that frozen embryos are children:

Alabama's Supreme Court has ruled that frozen embryos are children under state law and subject to legislation dealing with the wrongful death of a minor, stating that it "applies to all unborn children, regardless of their location."

The court issued this majority decision in a lawsuit brought forth by a group of in vitro fertilization (IVF) patients whose frozen embryos were destroyed in December 2020 when a patient removed the embryos from a cryogenic storage unit and dropped them on the ground.

Parts of the majority opinion and the lone dissent are illuminating.

In today's cultural climate, I find myself compelled to label the above skit SATIRE.

The ruling appears to be an application of the state's theocratic "personhood" amendment to an 1872 law:

[Justice Jay] Mitchell, however, wrote that the clinic was asking the court "to recognize an unwritten exception for extrauterine children in the wrongful-death context" and that the law "applies to all children, born and unborn, without limitation."

"It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy," Mitchell wrote. "That is especially true where, as here, the people of this state have adopted a constitutional amendment directly aimed at stopping courts from excluding 'unborn life' from legal protection."

Chief Justice Tom Parker, concurring with the opinion, wrote "that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory," which he argued was set in policy when Alabama voters approved the 2018 amendment. [links omitted, bold added]

The dissent contests neither the arbitrary, mystical definition of human life, nor the implied purpose of government being to implement religious morality, rather than to protect individual rights. It is nevertheless interesting for its historical points:

Justice Greg Cook, who filed the only full dissent, wrote that the Wrongful Death Act does not define the term 'minor child,' and that its meaning has remained unchanged since it was first written in 1872. Cook also noted a 1926 opinion from the Alabama Supreme Court that held that the law "did not permit recovery for injuries during pregnancy that resulted in the death of the fetus."

"There is no doubt that the common law did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability," Cook wrote. "In fact, for 100 years after the passage of the Wrongful Death Act, our case law did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a 'minor child' who could be killed." [bold added]

Please note that even during times when Americans were generally more religious than they are now, fetuses were not treated as if they were fully human under the law.

I am not optimistic about the prospects for abortion remaining legal anywhere in the United States if this case makes it to the current Supreme Court, which overruled Roe vs. Wade, or an even more theocratic one if Donald Trump gets elected again.

The best imaginable outcome of that would be a patchwork of states with reproductive freedom (which is an unbearable idea to today's right) and those which treat potential human beings as actual ones for the purposes of the law.

If the left ever needed to get serious about something, it is making reproductive freedom legal, and that clearly entails enacting a rational, secular definition of human life into law.

-- CAV