The ruling is clearly unconstitutional, but don’t expect the Supreme Court to come to the rescue.
Tom Parker, chief justice of the Alabama Supreme Court, wrote a concurring opinion in the case Burdick-Aysenne v. Center for Reproductive Medicine, the recent ruling that elevated frozen human embryos to the status of children for the purpose of wrongful death lawsuits, threatening to end in vitro fertilization in Alabama. In his opinion, Parker wrote: “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’s Sanctity of Life statute] 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.”
The word “God” appears 41 times in Parker’s opinion, which also liberally quotes from the Bible, specifically the Book of Genesis, and theologians like Thomas Aquinus and John Calvin. In an interview, Parker said he supports the “Seven Mountain Mandate,” which is a code for imposing Christian rule based on biblical precepts on the rest of society.
Folks, this is the chief justice of a state supreme court, and he is explicitly invoking fundamentalist Christian ideology to justify assigning legal liability and financial penalties to people who run afoul of Christian orthodoxy.
The legal implications of elevating a cellular ice cube to the status of a born-alive child are bad. As Rewire’s Jessica Mason Pieklo explains, there is a direct line from the court saying (as the Alabama court did) that you can’t “destroy” a frozen embryo to forcing women to implant any embryos they help create (which is probably what’s coming next). And by giving full personhood rights to a collection of cells, the attack on IVF can almost certainly be used to further restrict abortion rights and reproductive healthcare, even in cases of rape or incest or when the life of the mother is at risk. The ruling also effectively restricts the options LGBTQ couples have to start a family. The decision came out on Friday, and less than a week later two Alabama clinics, including the state’s largest hospital, have stopped offering IVF because they cannot assume the legal liability that could arise from discarding the unused, unwanted embryos IVF treatments produce.
Meanwhile, the legal questions raised by embryonic anthropomorphization are legion, and illustrate the moronic logic of the Alabama court. Do the icicle babies get a Social Security number? Can their mothers count them as dependents on their taxes? Do their fathers have to pay child support? Are we all nine months older than we think and, if so, do 17-year-olds get to vote in the upcoming election? Is Frosty the Cellular Snowman entitled to a public education, like all the other kids, before he melts away?
Nobody knows, because the fundamentalist Christians running the joint only care to invoke God when Bible-thumping can be used to justify controlling women, limiting their choices, and forcing them to do something they don’t want to do. God, to these glorified astrologers, is all wrath, no grace.
Some Alabama state legislators are reportedly looking to restore and protect IVF through legislation. But the court’s argument is that the treatments that produce excess embryos violate the state Constitution. The court’s logic makes it entirely possible for them to strike down any law the legislature passes.
It would be entirely appropriate to focus solely on the nonsensical legal argument put forward by the Alabama Supreme Court, but it’s important to point out that this argument is not actually a legal one. It is a religious argument: The court is saying the law cannot be interpreted absent the justices’ exclusive interpretation of God’s will.
This is clearly unconstitutional. The Alabama ruling, on its face, violates the Establishment Clause of the First Amendment. The court is privileging one religious sect—dominionist Christians—over all others, and it is doing this to extract legal payments from others, namely hospitals and clinics, that don’t share the justices’ religious viewpoint. Using the power of the state to force others to live in accordance with a particular religious belief is the very definition of state-sponsored religion.
The US Supreme Court could intervene to stop Alabama… but have you met the people on the Supreme Court? For the court to overturn Alabama’s ruling for violating the First Amendment, the conservatives would have to admit that their entire anti-abortion argument—as manifested in the Dobbs v. Jackson Women’s Health Organization ruling—was also motivated by Christian theological arguments over when “life” begins. That will never happen. The conservatives who are in charge of the Supreme Court have committed themselves to using Bible stories to take away the rights of women and pregnant people, and they’re not going to let a pesky thing like the Constitution stand in their way.
What’s troubling to me is the extent to which the rest of the country has just accepted that we live under the rule of theocrats in robes and there’s nothing we can do about it. Establishment politicians, media figures, and even non-theocratic judges just kind of shrug and pretend that scripture is a reasonable basis for judicial pronouncements in a free society. If these judges and justices were establishing any religion other than fundamentalist Christianity, people would lose their minds. If an Alabama court ruled that Trump had to be kicked off the ballot because he lies so much he lacks satya, and rested their opinion in quotes from the Vedas, there would be riots. The ruling would be overturned and the judges, probably, impeached.
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But because it’s Christianity being shoved down our collective throats against our wills, because it is the majoritarian religion that is riding triumphantly into our courts, people accept these rulings as legitimate, if unfortunate, statements of law.
I don’t know what to do with that information. I don’t know how we combat the Christian takeover of the judicial branch—a takeover that has largely already happened—when most people in power won’t even acknowledge that a theocratic takeover of the judicial system is bad and out of step with the principles the country was literally founded on.
All I can do is report on what’s happened. And what’s happened is that the clergy has left the pews to invade the courts. The priests and deacons and ministers of our time are using the bully pulpit of the judiciary to impose their version of God’s will on the rest of us, and their God is spiteful, bigoted, and misogynist.
We are entering a new Dark Age, one where, like the last one, science, education, and facts mean nothing, and Christian myths and legends are given the force of law. I don’t know how to stop them, but I think the first step is to recognize and name what they’re doing.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.