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The original was posted on /r/keep_track by /u/rusticgorilla on 2024-02-29 12:47:17.

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This month’s Alabama court ruling that IVF (In Vitro Fertilization) embryos are “children” covered by wrongful death lawsuits has Republicans scrambling to distance themselves from the fallout. According to the party’s own polling, 85% of Americans support increasing access to fertility-related procedures and services. The high level of support remains consistent among the GOP’s most dedicated voters: 78% of abortion opponents and 83% of evangelicals support IVF specifically.

Among the slew of candidates attempting to disown the Alabama opinion are many who support fetal personhood—the very ideology that made the court’s ruling possible. Fetal personhood is the belief that life begins at conception and, therefore, embryos and fetuses are simply “unborn children” with the same rights and protections as born children.

Roe and Dobbs

Before we talk about the current effort to enshrine fetal personhood into law, we must look 50 years into the past to Roe v. Wade. In defending Texas’s ban on abortion before the U.S. Supreme Court in 1972, Texas Assistant Attorney General Robert C. Flowers argued that “it is the position of the State of Texas that upon conception we have a human baby, a person within the concept of the Constitution of the United States and that of Texas also.”

We all now know that the justices ultimately ruled 7-2 against Texas, holding that pre-viability abortion bans infringe on the mother’s right to privacy “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” Less well-known is the majority’s explicit rejection of fetal personhood:

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution…But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.

Thus, Roe stood as a backstop against the legal recognition of fetal personhood for nearly half of a century. Then Justice Samuel Alito came along with a newly empowered conservative majority, declaring in Dobbs v. Jackson Women’s Health that “Roe was egregiously wrong from the start.” In addition to removing all constitutional barriers to states imposing abortion bans, Dobbs outright refused to weigh in on fetal personhood, instead leaving states free to embed the belief in their legal codes as they see fit:

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.

Alabama ruling

The Alabama Supreme Court ruled 7-2 last week that IVF (In Vitro Fertilization) embryos are “children” subject to wrongful death lawsuits—a decision that will likely cause the state’s five fertility clinics to close due to increased liabilities.

  • IVF is a type of fertility treatment where eggs are combined with sperm outside of the body in a lab (video explainer by the Cleveland Clinic). Numerous embryos are created because, on average, only 50% will progress to the blastocyst stage before being transferred into the mother’s body. The failed or low-quality embryos are discarded. Unused healthy embryos are either frozen for potential future use, discarded, or donated (to someone else or for use in research).

The case, LePage v. Center for Reproductive Medicine, Inc., originated when a hospital patient wandered into an adjacent “unsecured” cryogenic nursery and tampered with an IVF freezer, destroying preserved embryos in the process. The parents—who had already successfully conceived via IVF—sued, alleging that the clinic was liable under Alabama’s Wrongful Death of a Minor Act based on their argument that embryos are, for legal purposes, children.

Associate Justice Jay Mitchell, a member of the Federalist Society, wrote for the majority that embryos are actually “extrauterine children” (defined by Mitchell as “unborn children who are located outside of a biological uterus”) and, therefore, protected by the Wrongful Death of a Minor Act. To support their claim, the majority pointed to dictionary definitions from the time the Act became law (1872), purportedly defining “child” as including the unborn. They also cited Alito’s declaration in Dobbs that “even as far back as the 18th century, the unborn were widely recognized as living persons with rights and interests.”

Let’s say you doubt that an 18th-century American could even imagine a process that enabled fertilization outside of the womb. That doesn’t matter, the majority argues, because a provision of the Alabama Constitution referred to as the Sanctity of Life Amendment requires courts to interpret “the rights of the unborn child equally with the rights of born children.” The amendment states, in part, that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

The implications of the majority’s reasoning reach beyond wrongful death claims: every state law involving “children” must be extended to embryos. The destruction of unused embryos, even with parental permission, would appear to be homicide under the standard laid out by the majority.

In case it wasn’t clear where the Alabama Supreme Court’s vision of fetal personhood comes from, Chief Justice Tom Parker spells it out very clearly: religion.

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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. Section 36.06 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.

  • Parker is close friends with former Alabama chief justice and disgraced U.S. Senate candidate Roy Moore. While running for a judicial seat on the court in the mid-2000s, Parker attended a party in honor of Confederate general and KKK grand wizard Nathan Bedford Forrest, handed out confederate flags at the funeral of a Confederate widow, and was photographed alongside leaders of the hate groups League of the South and Council of Conservative Citizens. And if that wasn’t enough, in a recent interview with QAnon conspiracy theorist Johnny Enlow, Parker “indicated that he is a proponent of the ‘Seven Mountain Mandate,’ a theolog…

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