JUSTICE
What Alabama’s Frozen Embryo Case Means for the Separation of Church and State — and Equal Rights for Pregnant People
It’s a canary in the coal mine
After the Alabama state Supreme Court announced on February 16, 2024 that embryos stored in a freezer for In vitro fertilization (IVF) were “children,” three Alabama clinics have stopped all IVF and transport companies are refusing to move frozen embryos across state lines until they assess civil and criminal liability for being charged with murder or kidnapping in Alabama.
Although much of the coverage has focused on IVF (a reproductive technology used by 1–2% of parents), this case should be seen as part of a continuing effort to extend constitutional rights to embryos and establish constitutional fetal personhood. The ruling is the first of its kind and could have radical implications for the people of Alabama and the entire country in terms of IVF, rape treatments like Plan B, and the equality of women and all pregnant people. The decision is radically Christian and should alert all Americans to the power of their state courts.
Three sets of parents lost their fertilized/frozen embryos when a patient entered the storage area, removed the container, and dropped the container on the floor. The parents sued for wrongful death under Alabama’s 1872 Wrongful Death of a Minor law, but a trial court dismissed their claims, finding the “cryopreserved, in vitro embryo” were not the definition of a ‘person’ or ‘child’ under the 1872 act. The Alabama state Supreme Court disagreed, noting “extrauterine or unborn children” “located outside of a biological uterus at the time they are killed” are children.
The 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health (overturning Roe v. Wade) laid the groundwork for the Alabama court to radically declare that embryos — some only eight cells or a 1/10 of a millimeter — are people with rights. In Dobbs, the Justice Samuel Alito’s majority decision took a step towards a constitutional framework that radically assumes that an embryo or fetus is a person and their rights may — or must — be weighed against other persons, particularly pregnant persons. In their recent Harvard Law Review article, legal scholars Melissa Murray and Kate Shaw document how the Supreme Court’s repeated references to ‘fetal life,’ ‘potential life,’ and ‘unborn human being[s]’ telegraph to possible litigants and judges in lower courts that fetal personhood is protected in the U.S. Constitution.
It’s impossible to overstate the impact of fetal personhood on the lives of all people who may become pregnant. Justice Sandra Day O’Connor knew this in 1992. In Planned Parenthood v. Casey, she outlined the potential threats to liberty if a pregnant person could be told what to eat or drink. She emphasized how women’s personhood depends upon her decision to terminate a pregnancy — to choose to be a parent.
The Alabama state Supreme Court insists that an embryo (8–100 cells, 1/10 of a millimeter in size with no discernable organs) is the same as any person. In Roe, a majority believed that a pregnant person had a right qualified by the interests of the state in fetal life in the third trimester. In Casey, a plurality believed that the line was the ability of the fetus to survive outside the womb (viability which is approximately 23–24 weeks). The Alabama decision (and the implications of Alito’s Dobbs majority decision (and Justice Clarence Thomas’s concurrence) set the stage for fetal personhood and a fundamental shift in American life — beyond what we’ve already seen since Dobbs.
The decision was equally radical with regards to the separation of church and state as one concurrence seemed to assume the establishment of Christianity as the official religion of Alabama. Justice Jay Mitchell’s majority opinion argued that the 1872 Wrongful Death of a Minor law combined with the 2018 “sanctity of life” amendment demonstrated the will of the people of Alabama (though the people believed that Roe v. Wade was still in effect when they voted). The majority contorted “the original understanding” of the people or legislative intent since there were no freezers, electricity, or fertilization of microscopic embryos in 1872 — but I’ll set that (and other inconsistences on “originalism” and “textualism”) aside to focus on the establishment of religion.
Mitchell’s majority opinion assumed “life begins at conception” but never explicitly named Christianity as the source of that claim. Mitchell never mentioned that those who practice Judaism and Islam have different beliefs regarding when life begins, when the soul enters a fetus, and how to weigh the life of a fetus or pregnant person.
Chief Justice Tom Parker’s concurrence has received the most focus in the media because he explicitly relied on Christian religious principles. He shockingly cited bible passages, theologians (e.g., Thomas Aquinas and John Calvin), and declared that in Alabama: “each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness” and concluded that the People of Alabama take the words of the prophet Jeremiah and apply it to every unborn person in this state: “Before I formed you in the womb I knew you, Before you were born I sanctified you.”
The U.S. Constitution’s First Amendment prohibits governments from making any law “respecting an establishment of religion” and protects the “free exercise” of religion. Although no other justice signed Parker’s concurrence, he clearly established Christianity as the guide for law in Alabama. Previously, Parker has expressed support for the Seven Mountain Mandate, asking conservative American Christians to use fundamentalist beliefs to influence and run family, religion, education, media, entertainment, business, and government as key areas of life.
The question remains whether Parker’s concurrence is an outlier or he has merely said the quiet part out loud: Alabama is a Christian state.
Given the ways in which the current Supreme Court has interpreted the First Amendment, it is unclear whether they would find Alabama’s assumption that life begins at conception either an establishment or religion or an interference in the free exercise of religion for those with different beliefs. In Florida, a synagogue has sued claiming that Florida law took away religious liberty given that Jewish law calls for saving the life of the pregnant person rather than the fetus in some situations.
We often focus on the rulings of the US Supreme court but award-winning research by James L. Gibson and Michael J. Nelson demonstrates that state courts have a far greater impact on the lives of people — and this is a superb example. Citizens in all states should pay careful attention to proposed amendments to their state constitutions and any laws proposed that affect their liberty and rights as parents, pregnant people, or individuals. Because Dobbs insisted that reproductive health care was public policy — not a constitutional right — states are now free to legislate and state courts will interpret those laws based on their constitutions.
Although only 1–2% of American families use IVF, there has been a great deal of focus on the technology since the decision. Little attention has been paid to the impact on rape treatment.
Alabama’s ban on abortion has no exception for rape or incest yet every 68 seconds, a person in America is raped — and every 9 minutes, that victim is a child. The Food and Drug Administration insists that Plan B is emergency contraception taken before a person is pregnant and Plan B remains legal in Alabama on the grounds that it does not terminate an existing pregnancy. Yet some conservative groups and the Catholic Church believe that, in cases where the egg has been fertilized, levonorgestrel is preventing an embryo from implanting and is abortion. Almost 15mn units of Plan B were sold in 2019 and scholars estimate that 64,000 pregnancies were caused by rape in States with a total abortion ban.
The reaction to the Alabama court has focused on IVF — and the right of parents to have children. Many political leaders, journalists, and scholars are among the elite 1–2% who enjoy access to IVF. In the Alabama House and Senate, there are bipartisan efforts to draft “clarifying” legislation that would “protect” in vitro fertilization treatments — and declare that embryos stored outside a uterus are not human beings under state law. But that would only exempt of people seeking to have children. The proposed legislation would not affect families who believe terminating a pregnancy best serves the health and emotional needs of pregnant people and their families. It is unclear whether it will clarify rape treatment and emergency contraception.
This case is a canary in the coal mine — and all Americans should focus on the power of state laws, state constitutional amendments, and the state courts that interpret them. If other states follow, this ruling could impact people in other states because federal courts consider whether ideas — embryos as constitutional people or Christianity as the basis of American law — have taken hold in “enough” states.
Dr. Susan P. Liebell is a Professor of Political Science at Saint Joseph’s University in Philadelphia.
