So far, only in Alabama. An 8-1 decision from the Alabama Supreme Court on February 16th involved two wrongful death appeals: LePage et al [as parents of Baby Aysenne, deceased embryo/minor] v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association and Burdick-Aysenne et al [as parents of designated embryos] v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association. Reversing a lower court decision that had dismissed these wrongful death cases, the state high court held that these frozen invitro-fertilized embryos were “extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed.” In short, they were the equivalent of full and complete human beings, newborns if you will, who were accorded full protection under Alabama law, and thus killing them was effectively homicide.
The majority opinion states: “In each of its judgments, the trial court explained its view that ‘[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'’ or ‘'child,'’ and it therefore held that their loss could not give rise to a wrongful-death claim… 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. The parties further agree that an unborn child usually qualifies as a ‘human life,’ ‘human being’ or ‘person,’ as those words are used in ordinary conversation and in the text of Alabama's wrongful-death statutes… That is true, as everyone acknowledges, throughout all stages of an unborn child's development, regardless of viability. The question on which the parties disagree is whether there exists an unwritten exception to that rule for unborn children who are not physically located ‘in utero’ -- that is, inside a biological uterus -- at the time they are killed. The defendants argue that this Court should recognize such an exception because, they say, an unborn child ceases to qualify as a ‘child’ or ‘person’ if that child is not contained within a biological womb…
“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” The absurdity of the ruling hits home when the Chief Justice Tom Parker’s concurring opinion at least had the decency to state directly what motivated the majority decision in the first place: an evangelical and fundamental belief that God and the Bible protect human life beginning at conception. He wrote: “Thus, the history and meaning of the phrase ‘sanctity of life’ informs our understanding of ‘sanctity of unborn life’ as that phrase is used in § 36.06 [the Alabama law at bar]. At the time § 36.06 was adopted, ‘sanctity’ was defined as: ‘1. holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations, or rights.’ Merriam-Webster's Collegiate Dictionary 1100 (11th ed. 2003). Recent advocates of the sanctity of life have attempted to articulate the principle on purely secular philosophical grounds. See, e.g., John Keown, The Law and Ethics of Medicine 3 (2012); Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 157-58 (2009) (arguing that ‘human life is fundamentally and inherently valuable’ based on the ‘secular moral theory’ that human life is a ‘basic good’ that "ultimately comes not from abstract logical constructs (or religious beliefs)’). Such advocates have preferred to use the term ‘inviolability’ rather than ‘sanctity’ to avoid what one scholar calls ‘distracting theological connotations.’
“This kind of acceptance is not foreign to our Constitution, which in its preamble ‘invok[es] the favor and guidance of Almighty God’… The Alabama Constitution's recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama. § 1-3-1, Ala. Code 1975 (‘The common law of England … shall … be the rule of decisions, and shall continue in force ….’). In his Commentaries on the Laws of England, Sir William Blackstone declared that ‘[l]ife is the immediate gift of God, a right inherent by nature in every individual….’” I’ve quoted extensively from the ruling itself, rather than simply make the obvious conclusion presented by many critics that this decision makes a mockery of the inherent separation of church and state generated by the First Amendment to the US Constitution… without a clear sample of the court’s reasoning.
Other red states have suggested that they may amend their statutes to follow Alabama’s lead. As Harry Litman, writing for the February 23rd Los Angeles Times added: “Alabama’s largest hospital announced Wednesday [2/21] 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 [2/22]. 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 U.S. Supreme Court is to blame for Alabama’s outlandish embryo opinion… Recklessly reversing Roe vs. Wade laid the foundation for further restriction of individual liberties on religious grounds.”
Meanwhile, red state legislatures are trying to convince their courts to hold any voter initiatives putting pro-choice to a popular vote as either violative of local statutes or their interpretation of their state constitution. They obviously know the result… in conservative states like Kansas, Kentucky, Ohio, etc., voters made the decision to enshrine as fundamental the individual right to abortion. But Alabama is hardly the only state trying to invoke that fundamentally religious position… that human life legally begins at conception. After Roe v Wade was reversed, Arkansas, Kentucky, Missouri and Oklahoma immediately tried to opt for this same religious result.
I’m Peter Dekom, and any woman who wants to maintain the right to make decisions about her own body has a clear choice in November… and it should certainly not be for any Republican legislator or Donald John Trump.
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