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Shocking Alabama abortion ruling enshrines religious fetal personhood


The Freedom From Religion Foundation condemns the recent outrageous theocratic 7–2 ruling by the Alabama Supreme Court. 

It describes embryos as “children,” contains a bible-laden concurrence and endangers in-vitro fertilization in the state. The ruling clearly shows the religion-based mentality that drives anti-abortion legislation and court judgments.

The case involves an IVF patient who accidentally dropped and destroyed frozen embryos belonging to other couples, and whether that patient could be held liable in a wrongful death lawsuit. Alabama’s high court descended to a new low when it held that “unborn children are ‘children’” and encompassed frozen embryos under the state’s Wrongful Death of a Minor Act. As the Washington Post reports, Alabama voters in 2018, before Roe v. Wade was overturned, passed a ballot measure granting fetuses full personhood rights, but the language did not mention frozen embryos. After Roe was repealed, Alabama adopted a draconian abortion ban.

It is hard to think of a more un-American ruling than the concurrence by Alabama Supreme Court Chief Justice Tom Parker. In his theology-drenched concurring opinion, Parker openly cites religion and the bible: “The theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: God made every person in His image; each person therefore has a value that far exceeds the ability of human beings to calculate; and 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.” Parker added that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

Parker’s concurrence references the Theology Today journal, a book by now-Supreme Court Justice Neil M. Gorsuch against medical aid in dying, the “Manhattan Declaration: The Call to Christian Conscience” theological screed, Thomas Aquinas, John Calvin, 18th-century English jurist William Blackstone — and the bible. Parker cites the sixth commandment along with Genesis 1:27, which he says speaks of the “creation of man” as being “in the image of God.”

Parker argues, “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).” Parker can’t cite any actual bible verse against abortion, of course, because none exists.

Parker concludes, “All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. 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.” (“Small” doesn’t quite say it. At three–five days old, the zygote is measured by its number of cells (70-100) and is about the size of the head of a pin.

Justice Greg Cook wrote a dissent expressing shock: “No court — anywhere in the country — has reached the conclusion the main opinion reaches. And, the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (‘IVF’) in Alabama.”

Don’t anti-abortionists, not to mention the pope who just slammed surrogacy with no sense of irony, ever wonder how it is “pro-life” to ban IVF, the only means by which many couples can conceive and give birth? More than 40 percent of U.S. adults say that they or someone they know has used fertility treatments, making the opinion, which likely will deny parenthood to many Alabamans, callous in the extreme. “Pro-lifers” ought to be making IVF a sacrament!

The Alabama ruling is one of many developments in just the past week demonstrating how religious zealots are openly seizing their moment to abolish abortion rights in the United States.

Echoing the fetal personhood holding of the Alabama Supreme Court is a bill introduced in Oklahoma to ban emergency contraception and IUDs, create a state database of women who’ve had abortions and redefine life-saving abortions as “previability separation procedures” (referring to nonviable pregnancies). The latter provision would attempt to camouflage that abortion is necessary to save lives or health. 

The bill was written by the Christian nationalist Alliance Defending Freedom, which represented Conestega Wood Specialities in its winning case before the Supreme Court (a companion to the Hobby Lobby case), contesting the Affordable Care Act’s contraceptive provision, claiming falsely that the IUD and pills are abortifacients. The bill is based on the unscientific premise that pregnancy begins at the “moment of fertilization” rather than when the fertilized eggs is implanted in the uterus, thus setting the stage for the banning of IUDs and emergency contraception.

A related investigation released last week by U.S. Sen. Ron Wyden exposes how cellphone location data has been used to send millions of anti-abortion messages to individuals who’ve visited Planned Parenthood offices across 48 states. “If a data broker could track Americans’ cellphones to help extremists target misinformation to people at hundreds of Planned Parenthood locations across the United States,” warns Wyden, “a right-wing prosecutor could use that same information to put women in jail.” A handful of progressive states are taking proactive steps to protect digital privacy rights of those seeking medical care.

Finally, over the weekend, the New York Times released a chilling exposé reporting that the man behind SB 8, the ban-and-bounty law in Texas halting most abortion care there in 2021, is plotting to restrict abortion care nationwide. Jonathan F. Mitchell (who represented Donald Trump in recent arguments before the Supreme Court over his removal from the Colorado ballot) plans to unleash the 1873 Comstock Act in the event of a Trump victory. His scheme would work hand in glove with Project 2025, the Heritage Foundation’s conspiracy to place cabinets under the complete control of the White House. Already, the regulatory independence of agencies is endangered by the Supreme Court’s acceptance this term of an appeal of the Chevron doctrine, which gives judicial deference to a federal agency’s interpretation of a regulation or statute.

Mitchell’s stratagem would enforce the Comstock Act, resulting in Planned Parenthood being defunded, medication abortion losing its FDA approval, fetal stem cells for medical research (and likely IVF) being banned nationwide. 

Does all this portent Christian theocracy, here it comes?

“Not on FFRF’s watch,” says FFRF Co-President Annie Laurie Gaylor. “The solution is to vote out the theocrats and vote in executives, judges and legislators who understand that religious dogma has no place in our laws and social policy.”

The Freedom From Religion Foundation is a national nonprofit organization with 40,000 members across the country, including hundreds of members in Alabama. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.

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