I never thought Iâd 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 Courtâs 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 Alitoâs majority opinion in Dobbs v. Jackson Womenâs 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 thereâs no avoiding the theological basis of the Alabama courtâs solicitude for âextrauterine children,â to use the majority opinionâs phrase. In a concurring opinion in which he referred to embryos as âlittle people,â Tom Parker, Alabamaâs chief justice, rested his analysis on whatâs become known as the Sanctity of Unborn Life Amendment that Alabama voters added to the stateâs Constitution in 2018. âIt 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: âBefore I formed you in the womb I knew you. Before you were born I sanctified you,ââ 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 Mondayâs episode of âThe Dailyâ for one young womanâs 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 âan American holocaust.â The bill provides that âthe terms âhuman personâ and âhuman beingâ 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.â
While the bill doesnât 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 donât really mean that.
A startling example of religion infiltrating the engines of government is playing out in Idaho. The stateâs attorney general, Raúl Labrador, has brought on the group Alliance Defending Freedom, a prominent Christian legal organization, to help argue Idahoâs Supreme Court challenge to a Biden administration policy that requires hospitals to provide abortion if necessary when a woman arrives in the emergency room in a pregnancy-induced medical crisis. The federal law, the Emergency Medical Treatment and Labor Act, requires hospitals to provide either ânecessary stabilizing treatmentâ for any emergency room patient or a transfer to another hospital, while Idahoâs abortion law permits terminating a pregnancy only in cases of rape and incest and to prevent âdeath.â
In making its argument, Idaho says in its brief to the court that it has a record of â150 years of protecting lifeâ and that the federal medical treatment law âdoes not require emergency rooms to become abortion enclaves in violation of state law.â The case is set for argument in April.
As the full force of the Alabama courtâs decision sank in, the stateâs Republican governor, Kay Ivey, and leaders of the Republican-controlled State Legislature have vowed to enact a legislative fix to protect I.V.F. That may not be so simple. The 1872 state law on which Justice Jay Mitchell based his majority opinion, the Wrongful Death of a Minor Act, presumably could be replaced by new legislation. But Chief Justice Parker warned in his concurring opinion that the recent voter-approved constitutional protection for âunborn lifeâ would stand in the way.
âCarving out an exception for the people in this case, small as they were,â he wrote, in reference to the destroyed frozen embryos at the heart of the case, âwould be unacceptable to the people of this state, who have required us to treat every human being in accordance with the fear of a holy God who made them in his image.â
As Alabamaâs political leaders search for a way out of this mess, I canât help but notice their silence on the closely related subject of abortion. As soon as the Supreme Court overturned Roe v. Wade, Alabamaâs pre-Dobbs abortion law sprang into effect. It is a total ban, making an exception only to prevent âa serious health riskâ to the pregnant woman, not for pregnancies resulting from rape or incest. As of 2021, Alabama had the fourth-highest maternal death rate in the country, behind only Arkansas, Mississippi and Tennessee. (To put this in perspective, a woman giving birth in Alabama is more than four times as likely to die in the process or soon thereafter as one in California.) Restoring access to abortion might seem to be a logical, even natural topic of conversation.
So why do we hear nothing from those so quick to self-protectively bemoan the state courtâs I.V.F. decision? Religion is part of the answer, no doubt, but there is something more. Abortion is generally portrayed as a womanâs issue; an unwanted or even dangerous pregnancy is her problem. Infertility, by contrast, is seen as a coupleâs problem. That means there is a man involved (even if, for lesbian couples, for example, or for single women, that man is only a sperm donor). And when men have a problem, we know the world is going to snap to attention.
Rhetoric about the âsanctity of unborn life,â in the words of Alabamaâs Constitution, has for too long been cost-free, a politicianâs cheap thrill. Now we see that, taken to extremes in the hands of the ideologues our current political culture nurtures, it has a price, one that society now seems reluctant to pay. For that realization, we can, as I said earlier, thank the Alabama Supreme Court.
Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The New York Times from 1978 to 2008. She is the author of âJustice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.â This article originally appeared in The New York Times.
