Breaking Down the Alabama In Vitro Drama
Did the Alabama Supreme Court deny parents’ rights to IVF… or protect them?
There has been a lot of attention placed on the Alabama Supreme Court recently due to the ruling, released February 16, 2024, about how a frozen embryo fits into the scope of a state law known as the “Wrongful Death of a Minor Act.” As the ruling states in the first paragraph, “The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, 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.”
Here at Meet Me in the Middle, we like to discuss all sides of an issue and determine how we can meet somewhere in the middle. Sometimes that is difficult, not because of the difficulty in finding a conclusive compromise, but because we are so terribly manipulated that we don’t understand the starting point. This is one of those issues. We read the ruling, and this article is committed to illuminating the truth.
Week after week, we keep highlighting these situations, but this is another example of the rampant manipulation by the corporate media.
Background and Context
Why was the Supreme Court asked to rule on this case to begin with? It stemmed from a couple of lawsuits filed by three pairs of parents following the death of some embryos that were frozen at a fertility clinic in Mobile, Alabama. Allegedly, a patient at a Mobile hospital walked into the fertility clinic, accessed the area where these embryos were stored, and attempted to pick some up. The cryogenic temperatures of the embryo container resulted in a freeze-burn, which caused the patient to drop the embryos. At that point, the cryogenic preservation conditions were compromised, and the embryos died.
A trial court dismissed the parents’ claims when they sued for wrongful death, but the parents appealed the Mobile Circuit Court decision, thus bringing the case to the state Supreme Court. The Alabama Supreme Court ruled 8-1 in favor of the plaintiffs (the parents who lost their frozen embryos).
The Reaction
In an interesting twist that we don’t see every day, there was a strong bipartisan condemnation of the Supreme Court ruling. The outcry from Republicans and Democrats alike was a strong denouncement of the ruling. Even conservatives that we would expect to celebrate such a conservative ruling found themselves tiptoeing around the subject.
The corporate media naturally pounced on this story. The overarching narrative of the corporate media was that the Alabama Supreme Court ruled that embryos are children, and that In Vitro Fertilization (IVF) is threatened in the state of Alabama and possibly across the United States. The Guardian published an article entitled, “What Alabama’s IVF ruling reveals about the ascendant Christian nationalist movement.” A Washington Post headline reads, “Red-state Christian women are rising up, speaking out to defend IVF.” An NBC News headline states, “Three Alabama clinics pause IVF services after court rules that embryos are children.”
Alabama Chief Justice Tom Parker also received sharp criticism for the theological tone of his concurrence with the main decision. The corporate media compliantly proliferated their reports with emphasis on this angle of the story. AL.com, an Alabama-based news outlet, stated, “Alabama Supreme Court Chief Justice Tom Parker utilized multiple Biblical references in his search for the definition of the “sanctity of life” to come to the conclusion that an embryo fits within the definition of a child.”
Discussing “Sanctity of Life”
Reading Chief Justice Parker’s concurrence, it becomes clear that this was not a “theological” discussion in the context that the man was preaching from his pulpit. But he did discuss religion as the foundation upon which the Alabama Constitution was based. He begins his discussion of the case with the following sentence, “A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb.” He goes on to point out that in Article I Section 36.06(b) of the state constitution, Alabama “acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”
Chief Justice Parker notes that “the Alabama Constitution does not expressly define” what is meant by “sanctity of unborn life,” so he took the opportunity to examine the term and “explore the legal effect” of adopting “the Sanctity of Unborn Life Amendment as a constitutional statement of public policy.” He notes that the plaintiffs and defendants raised Section 36.06 of the Alabama Constitution, which is why he felt it necessary to consider the meaning of the phrase “sanctity of unborn life.” He wrote twenty-six paragraphs on the meaning of the phrase. Those paragraphs included references to numerous legal precedents, historical commentary, references to theological writings, and, yes, quotes from the Bible. Is reference to the Bible appropriate in a court ruling? Chief Justice Parker seemed to believe so based on the theological foundation on which the State’s laws are constructed.
In his summary paragraph at the end of this long discussion, he concluded the “theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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.” He concluded that Section 36.06 applies to unborn human life just as it does to all other human life.
So, while Chief Justice Parker was characterized by the media as using his bench as a pulpit, he was actually diligently considering the law, evaluating the policy of his state’s constitution, and conducting an expansive historical (not ideological) review to establish a basis for defining “sanctity of life” (and not a basis for his concurrence). Chief Justice Parker may or may not be a very religious person. Regardless of his personal beliefs, his judgment seemed to be very considerate of the law of the State of Alabama and he was very straightforward about his interpretation of the law. But reporting that the Chief Justice demonstrated fidelity to and respect for the law would not fit the narrative that this conservative state is making outrageous decisions.
When Does “Life” Begin?
That is, of course, a deep question. It really doesn’t matter for this case, because all parties involved agreed up front on this. As the ruling discusses, “All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” So, let it be clear: neither this case nor this ruling is about when life begins or that an embryo is an unborn child.
Defining A “Minor Child”
The ruling really pertains to the wording of the Wrongful Death of a Minor Act. The Alabama Supreme Court’s precedent decisions already determined that “the wrongful death of any unborn child” is covered by the Act. So, the justices’ hands were tied in that respect.
Unwritten Exception for Extrauterine Children
This topic is the only place where controversy actually enters the conversation. And even that controversy is easy to get past if you understand the law (like the justices do). The Court was compelled by this case to address the following question: Is there an unwritten exception in the Wrongful Death of a Minor Act for extrauterine embryos (that is, embryos that are viable but exist outside of the uterus). The answer is “no” because the basis for such a claim was simply too weak. So, it was not the case that the Court was ruling that extrauterine embryos are children, but that extrauterine embryos are not exempt by existing law. Thus, as the ruling suggested, legislation would be needed to cover extrauterine embryos.
Civil Liability versus Criminal Homicide
For those who have been fooled by the biased corporate media into believing that the Alabama Supreme Court ruling means that IVF clinics can be charged with homicide if an embryo dies, let us put that misleading narrative to rest. This is also discussed in the ruling. “The definition of a person” under the state’s criminal-homicide laws and “the definition of a person” under civil wrongful death laws are not “congruous.” “Extrauterine children are not within the class of persons protected by our criminal-homicide laws.”
Responsibility for Frozen Embryos
The Alabama Supreme Court ruling says IVF clinics can be sued — but not by just anyone! They can be sued by the parents who lost their embryos due to negligence. The ruling is actually pretty narrow in scope.
Who is responsible for protecting embryos that are frozen and stored in an IVF clinic? The clinic is, of course. If a clinic is unwilling to assume that responsibility, is that the fault of the Court? The biased corporate media painted the picture for us that IVF clinics were canceling appointments with patients because they were afraid to assume the risk of an embryo dying and being held liable. The claim from the corporate media is that this ruling is harming parents’ ability to fulfill their desires. Let’s get this straight. The ruling holds clinics accountable for doing their job, which includes not screwing up and killing an embryo (or not letting some random dude stroll in and kill a bunch of embryos). So, really, the ruling is helping protect the parents’ ability to fulfill their desire to start a family. Should that not be celebrated?
In the aftermath of the ruling, is it the Court, the State lawmakers, or the clinics that have decided that there will not be IVF for anyone? It is the clinics, of course. They are not accepting the responsibility of fulfilling their obligation to keep patients’ embryos safe.
The Legislative Process at Work
The defense in the IVF case devoted “large portions of their briefs to emphasizing undesirable public-policy outcomes.” The Court responded by saying “these types of policy focused arguments belong before the Legislature, not this Court.” The main opinion noted that “It is not the role of this Court to craft a new limitation based on our own view of what is wise or is not wise public policy,” especially so in a place where “the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.” The lone dissenting opinion noted that this case “underscores the need to have the Legislature - - not this Court - - address these issues through the legislative process.” So, everyone is agreement that the appropriate course of action is for the Court to place this issue in the hands of the elected legislative body. With everyone in agreement, this does not seem to be so controversial after all. But why is the Alabama legislature not doing something about this?
Just a couple weeks after the Alabama Supreme Court ruling that parents/patients can sue fertility clinics for allowing some bozo to walk in and destroy their embryos, the Alabama House and Senate voted to approve legal protections to such entities that provide in vitro fertilization services. The mischaracterization of the ruling by corporate media evoked a backlash of shock and outrage that prompted a rapid and reactive response by lawmakers. In a demonstration of the support for the wish of the People, the House measure passed 94 to 6. The law grants immunity to clinics as well as doctors and health care personnel who provide IVF services. So, the failure of the media to convey the whole story contributed to the swift response of the Alabama legislature. Which is… good?? At any rate, Alabama Governor Kay Ivey signed the bill to protect IVF into law on March 6, 2024, only three weeks after the February 16th Alabama Supreme Court ruling.
The lawmakers were very quick to write new law reflective of the will of the People. Legislation from the House and from the Senate was passed unbelievably quickly with bipartisan support. Is that because the Court got their nearly unanimous 8-1 decision so horribly wrong (as the biased corporate media would have you believe)? Or could it be that it is because this case and the diligence of the Alabama Supreme Court justices revealed that something in the law was broken and required a fix? The latter is obviously consistent with the opinion of all nine justices, the vast majority of members of both the Alabama House of Representatives and Senate, and the Governor of Alabama.
Bringing it Home
This story is just another example of how the corporate media misleads the masses. This topic received nationwide attention, even getting brought up in the March 7, 2024 State of the Union address (the new Alabama law was not mentioned). Also, not mentioned during any of the national coverage is how thoroughly the Alabama Supreme Court did their jobs. The Court did exactly what it was supposed to do by (1) evaluating the case, (2) considering the State constitution and the will of the People of the State, (3) addressing the ambiguities in the law in the context of the case, and (4) avoiding the creation of policy. In a classic example of judicial process of the United States of America, the Alabama Supreme Court ruled based on existing law, the justices called out how the case illuminated a need for new legislation, the State Legislature promptly responded to address the desires of the People, and the Governor of Alabama signed that legislation into law. That is exactly how the system is supposed to work.
As for meeting in the middle, the system of checks and balances and the legislative process succeeded in doing just that. Bravo, Alabama!
A situation that was portrayed as a conservative disaster proved to be an outstanding success for the democratic process and our system of checks and balances. A more genuine disaster is when judges circumvent the legislative process and effectively create law with their opinions. Modern “liberals” seem to believe that it is acceptable to employ tactics to work around the lawmaking process that has been in place for nearly 250 years. These tactics appear in the form of judges “legislating from the bench” and in the form of creating laws by executive order. Modern “conservatives” strongly believe in adhering to the traditional legislative process by which their elected officials are trusted to create laws that represent their will and their values. Conservatives are often criticized by the mainstream media for their commitment to the “rule of law,” but this case is a shining example of how the rule of law can deliver a desirable outcome.
As you can see, the story cannot be fully understood until the entire tale is told. Omission of key details changes how a story is heard. Omission of such a detail as the Court demonstrating a respect for the State constitution, or such a detail as a refusal of the Court to create policy, or such a detail as the scope of the ruling being so narrow as to have extremely limited applicability—well, omissions such as those completely corrupt the story, don’t they? Omission is not some passive maneuver. It is an active wrongdoing meant to mislead the audience. Have no doubt, omission is commission. To omit is to commit a violation of the duty of a journalist. Omission is malpractice that, over time, molds an audience into a false confidence in their rightness despite never knowing the whole story, never being aware of what has been omitted, and never bothering to pursue the rest of the story.
How many examples of these violations are necessary to awaken the minds of such an audience?