Columnist Bill Newman: Did God take sides in the Alabama case?

Bill Newman

Bill Newman


Published: 03-22-2024 2:09 PM

Modified: 03-22-2024 7:44 PM

Warning: The case from the Supreme Court of Alabama, discussed here, may cause severe nausea. Proceed with caution.


The Supreme Court of Alabama recently decided a case about frozen embryos created, kept, and later accidentally destroyed at a fertility clinic in Mobile. The case, in effect, ruled that in vitro fertilization needed to stop in that state because it killed people.

The facts were not in dispute. In December 2020, a patient at the hospital adjacent to the Center for Reproductive Medicine made his way into a room where the containers with in vitro embryos were stored. The patient picked up a couple freezing-cold containers, severely burning his hands, and dropped them.

James and Emily LePage, who had contributed the sperm and egg, sued the Center under the state’s Wrongful Death of a Minor Act for themselves and as “parents of two deceased LePage embryos.” Another couple in the same situation joined the lawsuit.

The trial court concluded that the wrongful death statute’s definition of a child did not include an in vitro embryo. Both couples appealed. And in mid-February 2024, they won.

Alabama’s highest court began its decision by stating that “unborn children are ‘children’ for purposes of (the state’s) Wrongful Death of a Minor Act.” The court described the case as “involv(ing) the death of embryos … unborn children who are located outside of a biological uterus at the time they are killed” and ruled that the law “applies to all unborn children regardless of their location.”

The decision repeatedly described those microscopic embryos as “extrauterine children.” Children? Extrauterine children? Really?

Really. Because, the court explained, “life begins at fertilization and … an unborn child (is) a ‘human life’ … throughout all stages … of development, regardless of viability.”

The adults brought alternative legal claims — negligence, infliction of emotional distress and breach of contract. But those claims, the court ruled, were moot because the wrongful death statute resolved the case.

An unambiguous victory for anti-choice zealots — no question about that. But the court’s chief justice, Tom Parker, upped the ante. His concurring opinion states — I swear I am not making this up:

“In summary, the theologically based view of the sanctity of life adopted by the People of Alabama [means that] God made every person in His image … and human life [which includes a fertilized egg created and stored in a laboratory] cannot be wrongfully destroyed without incurring the wrath of a holy God who views the destruction of His image as an affront to Himself.”

The chief justice refers to the embryos as “little people” and cites passages from the Book of Jeremiah as the basis for his court being “required … to treat ... the people in this case, small as they were … in accordance [he repeats] with the fear of a holy God who made them in his image.”

The vote was 7-2. Justice Greg Cook, with an originalist analysis, argued that when the law when passed in 1872 did not cover embryos at all — end of story.

Justice Will Sellers responded to the majority’s thesis that because the law covered an in-utero embryo, it necessarily applied an in-vitro one as well. He wrote, “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented intellectual sophistry.”

The decision meant that the IVF clinics in Alabama had to cease operation. The potential civil, even criminal, liability from the destruction of fetuses was too great.

Christian nationalists and anti-abortion fundamentalists, who insist that a fetus, an embryo and a fertilized egg all are entitled to the same or greater rights than a person, applauded the decision and its result. But Alabamans didn’t.

Across political and religious spectrums, they overwhelmingly supported the right to IVF. Indeed, the LePages themselves previously had two healthy children through that process. In response, the Legislature passed a law that prohibits anyone from suing an IVF clinic for doing its work. At least for now.

I’ve been of three minds about the Alabama decision. At first, I felt outrage. Later I felt some hope because the people had successfully fought back. But upon reflection I knew that the powerful right wing had ceded only the minimum necessary for them to maintain their power.

Yes, IVF is safe for the moment. But the decision, with its religiosity, disregard for separation of church and state, and insistence that under this statute an embryo is a person, lives on. The legislative victory feels ethereal.

Undergirding this story is Dobbs, the 2022 Supreme Court case that reversed Roe v. Wade. Indeed, the Alabama case quotes Dobbs for the proposition that historically “the unborn were widely recognized as living persons with rights and interests.” That theory of fetal personhood, if fully adopted, could be used to ban all abortions.

Roe said future reproductive rights decisions would rest with the states. The Alabama Supreme Court has given us a glimpse of that future. It’s frightening.

And on Tuesday, March 26, the Supreme Court will hear the mifepristone — the abortion pill — case that could be as destructive of abortion rights as Dobbs.

Bill Newman is an attorney and co-host of Talk the Talk on WHMP.