Frozen embryos are now people in Alabama as the US tips closer to theocracy

Small dumb act, big consequences. In 2021, at an in-vitro fertilisation (IVF) clinic in Mobile, Alabama, someone decided to grab a bunch of frozen embryos being stored there. Since they’re kept at sub-zero temperatures, they burned. The poacher dropped them and the embryos died.

That led to litigation and, this week, a declaration of law from the Alabama Supreme Court of pure, unadulterated theocracy. The doctrine of separation of church and state has never been under such direct and explicit threat.

The embryos had belonged to three couples and comprised their eggs fertilised by their sperm. They were cryogenically frozen and kept in a suspended state, prior to anticipated implantation in the mother’s uterus.

The parents sued the clinic for damages under Alabama’s Wrongful Death of a Minor Act, an 1872 law that has previously been held to apply to the case of the death of any “child”, defining that term to include the unborn — that is, from conception.

In Alabama, it is uncontroversial that foetuses are persons, with all of the same legal status and rights. It is, unsurprisingly, one of the most fervently anti-abortion states. In 2018, its voters approved a change to the state’s constitution that “acknowledges, declares and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child”.

The question for the court in this case was whether an unborn child that is not physically located inside a biological womb is a child at all, for the purposes of the wrongful death statute. By a 3-2 majority, the court ruled it is. Consequently, the smashed embryos were people, and their parents had a right to damages for their deaths.

The judges engaged in an arcane debate that roils America’s courts constantly: between “originalists”, who insist that the wording of a constitution or law is frozen in time with the meanings that applied at the time it was made, and those who argue that the law has to adapt as meanings and understandings evolve.

In reality, American courts are deeply infected by ideology, and judges apply these intellectual arguments with freewheeling inconsistency depending on which result they want to reach. Thus, in this case, the majority judges found themselves arguing that the law applies to unborn children wherever they may be found, even though in 1872 IVF (or any form of extra-uterine life) was impossible and beyond contemplation.

The legal sophistry isn’t the point of interest, however. Anyone expecting US courts to just apply the law without reference to personal beliefs is deluding themselves.

What has caught everyone’s attention is the reasoning of the Alabama chief justice, who was in the majority and decided to deliver a short treatise on why this was a question of law, the answer of which lies not in legal precedents or even the state constitution but with a far higher authority altogether.

The chief justice’s name is Tom Parker, I shit you not. Presumably he will be played by Tom Hanks in the miniseries.

It’s worth trying to understand how his brain works. He begins with the statement that “a good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy”.

Since Alabama’s constitution affirms its “public policy” as being support for “the sanctity of unborn life”, the judge figured that that’s a clear direction from the people to lawmakers and judges. But it begs the question: what does “the sanctity of unborn life” actually mean?

Off he goes, then, on a theological excursion beginning at the literal beginning — the Book of Genesis — via the Ten Commandments, St Thomas Aquinas, Petrus van Mastricht and John Calvin, to get to the root of what it means to be a human.

This, Parker finds, can be traced through the principle “that human life is fundamentally distinct from other forms of life and cannot be taken intentionally without justification” to “deep roots that reach back the creation of man ‘in the image of God’”.

As Calvin said, “no one can be injurious to his brother without wounding God himself”. That’s why the Biblical injunction to not kill (minor sidelight: Parker prefers the modern translation of the Sixth Commandment, “Thou shall not murder”, favoured by Christians who uphold the sanctity of life but are also fans of capital punishment).

Anyway, the chief justice concludes:

The people of Alabama have declared the public policy of this state to be that unborn human life is sacred. 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 … [they] have required us to treat every human being in accordance with the fear of a holy God who made them in his image.

Legally speaking, what a load of horse shit. The US Constitution demands that church plays no part in state, for one excellent reason: there is more than one god.

Of course, in America it’s always been more complicated, especially in the Deep South with its confused culture of fear of God, love of guns and distrust of guv’mint. Tom Parker is not an outlier.

Still, that he had no compunction putting such overtly (and intolerant) religious dogma on paper, as a statement of actual law, says something about how empowered the American hard Christian right now feels, and how much further the country is tilting away from its secular foundations and towards fundamentalist rule.

If the United States falls into theocracy, the world’s grandest social experiment will have failed in the worst possible way.