Harry Litman

The Alabama Supreme Court’s breathtakingly arrogant, slapdash, and pernicious opinion conferring personhood on newly formed embryos vividly illustrates the consequences of another reckless decision: the U.S. Supreme Court’s reversal of Roe vs. Wade.

The Alabama court held last week that fertilized ova cryogenically preserved for couples having difficulty conceiving are legally and morally equivalent to newborn babies and, for that matter, 20-year-old adults. According to the court, all are human beings protected under Alabama law to precisely the same extent.

The decision clears the way for wrongful-death lawsuits brought by couples whose embryos were destroyed by a patient who wandered into an in vitro fertilization clinic through an unsecured entrance, picked up several frozen fertilized eggs, and, shocked by their cryogenic temperature, immediately dropped them on the floor. Reversing the trial court, the Alabama Supreme Court held that this conduct could be subject to a wrongful death claim, rendering it indistinguishable from, say, the death of a 2-year-old negligently left in a sweltering car.

Astonishingly, the sole focus of the court’s analysis was whether Alabama’s wrongful-death law encompasses “extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed.” The court did not even attempt to wrestle with the distinction between a just-fertilized egg — what biologists call a blastocyst, a ball of up to a few hundred cells measuring a fraction of a millimeter in diameter — and a fully formed child born at term.

It’s customary to note the parade of horribles that could be occasioned by such an extreme decision. But here the parade has already begun.

Alabama’s largest hospital announced Wednesday that it would no longer offer would-be parents in vitro fertilization procedures due to the substantial threat of criminal liability for mishandling fertilized eggs. Other providers followed suit Thursday. Medical personnel who try to help couples conceive have been suddenly recast by the courts as potential murderers.

The immediate consequences don’t end there. Women who use intrauterine devices or morning-after pills, which can affect fertilized eggs, are in the eyes of Alabama law rank baby killers.

The court’s supposed legal opinion in fact rests on the tenet that life begins at conception, a matter of religious faith to which only a small minority of the country subscribes.

Chief Justice Tom Parker’s concurring opinion employs quotations and teachings from Scripture as if they had the legal force of the Bill of Rights. Passages from Genesis and Exodus, various theological tracts, Thomas Aquinas, John Calvin, and Jonathan Edwards take their place alongside the writings of U.S. Supreme Court Justices Antonin Scalia and Neil M. Gorsuch. All are marshaled in support of the view that “God made every person in his image… and 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.”

But apart from the wrath of God, there is no attempt to rationalize the legal equation of a frozen, formless collection of cells with a living person. The court simply assumes it away with the syllogistic reasoning that Alabama’s statutory law specifies that human life includes “unborn” life.

Such ham-handedness undermines the entire opinion. The critical question for the state is not whether an embryo of any particular age can be said to be, in some sense, alive; it’s whether it is a human being deserving of the rights and protections accorded to all of us, which is a far broader and more complicated designation.

A stadium full of theologians, philosophers, ethicists, and politicians couldn’t come up with an authoritative answer to that question. And in the absence of such an answer, how can the state impinge so deeply on the liberty of women and aspiring parents?

It’s in that sense that the Alabama Supreme Court’s opinion can be traced directly to the U.S. Supreme Court’s 2022 decision in Dobbs vs. Jackson Women’s Health Organization. The idea of shoving this tendentious religious tract down Americans’ throats would have been a nonstarter under Roe vs. Wade, which asserted the constitutional liberty interests of women against an overreaching, moralistic state.

Post-Dobbs, those rights are featherweight. The outrage belongs with the U.S. Supreme Court’s ill reasoning and grotesque overreach.

Nor is Alabama the only state purporting to enshrine the fundamentally religious position that human life begins at conception in law. Arkansas, Kentucky, Missouri, and Oklahoma issued similar proclamations in the wake of Dobbs.

The Alabama Supreme Court takes this malign presumption to its logical end, stripping every American in its jurisdiction of the right to make their own decisions on a matter of the highest moral and practical import. That’s the antithesis of liberty.

Harry Litman is the host of the “Talking Feds” podcast.