April 2024 Church & State Magazine - April 2024

In vitro fanaticism: Laced with Christian Nationalism, a ruling by the Alabama Supreme Court restricting reproductive options sparks a powerful backlash

  Liz Hayes

HHS Secretary Becerra Meets With Families And Health Professionals In Alabama Following IVF Court Ruling

Reproductive rights under fire: In vitro fertilization patients and health professionals meet with Health and Human Services Secretary Xavier Becerra (Photo by Elijah Nouvelage/Getty Images)

Over the course of 22 pages, an Alabamian named Tom Parker referred to God 41 times to explain why he believes frozen embryos should have the same legal rights as living children.

He wrote of his “Creator” seven more times, included five Bible citations, referred to the writings of three Christian theologians who died centuries ago and cited the 2009 “Manhattan Declaration: A Call of Christian Conscience” that outlines fundamentalist Christian views on abortion, marriage equality and divorce.

If Parker had been preparing a church sermon, penning an op-ed column for his local newspaper or even writing to his elected officials about reproductive health policy, his musings wouldn’t have made headlines.

But Parker isn’t just any Alabamian he’s the chief justice of the Alabama Supreme Court. And he was writing an official legal opinion in a court case his concurrence on why the court should define life as beginning at conception and grant personhood rights to frozen embryos.

On Feb. 16, the Alabama Supreme Court ruled that destroying frozen embryos harvested for in vitro fertilization (IVF) violated the state’s Wrongful Death of a Child Act. The ruling came in a lawsuit brought by people whose embryos were destroyed during a 2020 break-in at a Mobile clinic that provided IVF services.

“This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act,” the court majority wrote. “The central question presented … is whether the Act contains an unwritten exception to that rule for extrauterine children that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.

But it wasn’t enough for Parker that the majority opinion with which he agreed already included a theological definition of when life begins. Parker felt the need to write a separate, concurring opinion in which he expounded on “the meaning of the term ‘sanctity of unborn life.’” His exploration stemmed from Alabama’s 2018 anti-abortion constitutional amendment. Known as the “Sanctity of Unborn Life” amendment, it acknowledges “the rights of unborn children” and declares that the constitution does not confer the right to an abortion. It does not include religious language, a definition of when life begins or consideration of IVF.

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred,” 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.’

“Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image,” Parker concluded.

The majority opinion, and Parker’s religious language, triggered an immediate outcry and sparked a nationwide panic that other conservative courts and lawmakers could also take steps to restrict IVF procedures in their efforts to curtail abortion access and reproductive rights.

“Our country’s promise of church-state separation is meant to protect citizens from government officials enshrining their personal religious views into law. The Alabama Supreme Court ignored that constitutional promise to impose on all Alabamians a policy rooted in religious theology about the origins of life,” AU President and CEO Rachel Laser said. “The decision imperils the ability of Alabamians to have children through in vitro fertilization and prevents people from making their own decisions about their reproductive health care based on their own beliefs.

“In a concurring opinion, 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,” Laser added. “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. These kinds of statements have no place in court decisions.”

At least three IVF clinics and an embryo-shipping company operating in Alabama paused operations in the days after the ruling as they considered the legal repercussions. Pressured to secure reproductive health care for people relying on IVF to have children, Alabama lawmakers scrambled to pass a law in early March that shields IVF clinics and providers from criminal liability while side stepping the issue of whether a frozen embryo has legal “personhood” rights.

“The problem we’re trying to solve right now is to get those families back on a track to be moving forward as they try to have children,” Alabama state Rep. Terri Collins (R-Decatur), the bill’s lead sponsor in the House, told The New York Times. “Will we need to address that issue? Probably.

“I don’t want to define life that’s too important to me, to my faith,” added Collins, who also was a lead sponsor of Alabama’s abortion ban that was signed into law in 2019. “But we do have to decide where we begin protection, and that’s what I think we’ll have to talk about.”

Conservative groups like the Heritage Foundation and Susan B. Anthony Pro-Life America welcomed the Alabama court’s ruling as an opportunity to add more restrictions to IVF; the latter in particular was critical of Alabama lawmakers for their haste in passing a law to protect the procedure.

The U.S. Conference of Catholic Bishops, the conservative policy arm of the Catholic Church in America, took the opportunity to reiterate its opposition to IVF: “It is precisely because each person’s life is a unique gift that we cannot condone procedures that violate the right to life or the integrity of the family. Certain practices like IVF do both.”

Meanwhile, Americans United and other critics noted that the Christian Nationalism expressed in Chief Justice Parker’s opinion was not a surprise. On AU’s “Wall of Separation” blog, Church & State editor Rob Boston reminded readers that Parker is a protégé of former Alabama Chief Justice Roy Moore, who was twice removed from the bench for refusing to abide by rulings of higher courts on church-state matters. Parker served as Moore’s spokesman when AU and allies successfully sued Moore for installing an unconstitutional two-ton Ten Commandments monument at the courthouse in Montgomery in 2001.

Parker also founded and was executive director of the Alabama Family Alliance (now the Alabama Policy Institute), the state affiliate of the Christian Nationalist group Focus on the Family.

According to AU’s research, the IVF case was not the first time Parker has inserted religion into his rulings. In a 2011 case dealing with court-ordered visitation rights for grandparents, Parker wrote, “The Christian doctrine emphasized the role of parents in directing their children’s growth and development. From the birth of the first child, children were recognized as being a gift to parents from God.”

A year later, Parker disputed the U.S. Supreme Court’s ruling in Roe v. Wade that “the unborn have never been recognized in the law as persons in the whole sense.” Parker wrote, quoting an 18th-century British legal scholar, “Life is an immediate gift of God, a right inherent by nature in every individual.”

NPR and Media Matters reported that the same day the Alabama Supreme Court released its IVF ruling, a podcast interview with Parker was released in which he espoused a subset of Christian Nationalist views known as the Seven Mountains Mandate. Adherents believe Christians must take “dominion” over American society by seizing control of seven key institutions: family, education, media, government, business, arts/entertainment and religion.

“God created government. And the fact that we have let it go into the possession of others, it’s heartbreaking for those of us who understand,” Parker said in the interview with fellow Seven Mountains adherent and QAnon conspiracy theorist Johnny Enlow. “And we know it is for Him. And that’s why He is calling and equipping people to step back into these mountains right now.”

AU’s Laser warned that Parker is just one figure in a shadow network of Christian Nationalist organizations, political power brokers and allies seeking to undermine church-state separation and use the law to impose their beliefs on others.

“The Alabama Supreme Court’s opinion aligns with the Christian Nationalist agenda to ban abortion and limit access to reproductive health care,” Laser said. “Religious extremists are trying to force all of us to live by their narrow beliefs. Americans United is calling for a national recommitment to the separation of church and state to stop these abuses of power. Church-state separation is the shield that protects freedom without favor and equality without exception for all of us.”

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