Abortion Access

Ala. Supreme Court decision on IVF is a clear violation of church-state separation

  Rob Boston

A recent decision from the Alabama Supreme Court underscores that reproductive rights continue to be under assault from religious extremists and serves as a reminder of why we need separation of church and state.

The court ruled 7-2 that frozen human embryos are children – and thus entitled to legal rights. The court’s ruling is laced with religious rhetoric, and a concurring opinion from the chief justice even quotes from the Bible.

The case involved a clinic in Mobile that provided in vitro fertilization (IVF), a procedure often used by couples who have difficulty conceiving a child. In 2020, an individual got access to the area where embryos were stored and dropped several frozen ones to the floor, destroying them. The plaintiffs, who were storing the embryos at the clinic, sued and cited an 1872 state law known as the Wrongful Death of A Child Act.

Religious references pervade ruling

The Alabama high court not only held that the clinic was negligent, it went on to assert that the Wrongful Death of a Child Act “applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

In a concurring opinion, Supreme Court Justice Tom Parker wrote, “We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied 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.’ Jeremiah 1:5 (NKJV 1982).”

The irony here is that the people who use IVF desperately want to have children; they are hardly “anti-family.” Yet the procedure has been under attack by conservative religious groups for decades. The hierarchy of the Catholic Church, for example, has lobbied to stop it on the basis that it offends that church’s theology.

Theology has no place in decision

The Alabama ruling is a serious blow to IVF in that state. Indeed, given that IVF inevitably involves the destruction of embryos that aren’t implanted in the womb, it’s hard to see how the procedure can be legal going forward.

As Americans United noted in a media statement, “Chief Justice Tom Parker says the quiet part out loud – repeatedly referencing God, his religious beliefs and even quoting from the Bible to justify his decision. He frankly admits that beliefs about life beginning at conception and that ‘God made every person in His image’ are theological, not legal or medical, statements. These kinds of statements have no place in secular court decisions.”

Parker, it is worth noting, is a protégé of the infamous “Ten Commandments Judge” Roy Moore, who was twice removed from the Alabama Supreme Court for refusing to abide by rulings of higher courts on church-state matters. Prior to getting elected to the court, Parker ran a Christian Nationalist group affiliated with Focus on the Family.

So, in a nutshell: In Alabama, people’s rights are being stripped away for no other reason than how some other people interpret the Bible.

Could anything be a clearer violation of separation of church and state?

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The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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