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Guest Essay
By Linda Greenhouse
Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
I never thought I’d be grateful to the Alabama Supreme Court for anything, but now I am. With its decision deeming frozen embryos to be children under state law, that all-Republican court has done the impossible. It has awakened the American public, finally, to the peril of the theocratic future toward which the country has been hurtling.
The U.S. Supreme Court’s June 2022 decision that erased the constitutional right to abortion was an alert, too, of course, leaving Republicans scrambling to distance themselves from the fruits of the court they had populated with such glee only a few years earlier. The fact that religious doctrine lay at the heart of Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization was perfectly clear, as I observed then. Dobbs is usually discussed today as a conservative power play, however, rather than as a projection of a religious view of fetal life onto both a largely unwilling public and the Constitution itself.
But there’s no avoiding the theological basis of the Alabama court’s solicitude for “extrauterine children,” to use the majority opinion’s phrase. In a concurring opinion in which he referred to embryos as “little people,” Tom Parker, Alabama’s chief justice, rested his analysis on what’s become known as the Sanctity of Unborn Life Amendment that Alabama voters added to the state’s constitution in 2018. “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,’” the chief justice wrote.
The decision was a shock, causing immediate chaos and heartbreak as fertility centers in Alabama paused their in vitro fertilization practices, crushing dreams of long-deferred parenthood even for couples whose embryos were days away from being transferred. (The cowardice of the medical profession is a notable feature of the post-Dobbs era; listen to Monday’s episode of “The Daily” for one young woman’s despairing account of what she experienced.)
But should it really have been such a surprise? The country is awash in religiosity when it comes to human reproduction. More than 120 Republican members of the House of Representatives have signed on as co-sponsors of the Life at Conception Act. Among them is their leader, Speaker Mike Johnson, an evangelical Christian who has called abortion “an American holocaust.” The bill provides that “The terms ‘human person’ and ‘human being’ include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning or other moment at which an individual member of the human species comes into being.”
While the bill doesn’t mention in vitro fertilization, the implications for I.V.F. are clear on the face of its text. Now many of its co-sponsors are urgently assuring their constituents that they don’t really mean that.
A startling example of religion infiltrating the engines of government is playing out in Idaho. The state’s attorney general, Raúl Labrador, has brought on the group Alliance Defending Freedom, a prominent Christian legal organization, to help argue Idaho’s Supreme Court challenge to a Biden administration policy that requires hospitals to provide abortion if necessary when a woman arrives in the emergency room in a pregnancy-induced medical crisis. The federal law, the Emergency Medical Treatment and Labor Act, requires hospitals to provide either “necessary stabilizing treatment” for any emergency room patient or a transfer to another hospital, while Idaho’s abortion law permits terminating a pregnancy only in cases of rape and incest and to prevent “death.”
In making its argument, Idaho argues in its brief to the court that it has a record of “150 years of protecting life” and that the federal medical treatment law “does not require emergency rooms to become abortion enclaves in violation of state law.” The case is set for argument in April.
As the full force of the Alabama court’s decision sunk in, the state’s Republican governor, Kay Ivey, and leaders of the Republican-controlled State Legislature have vowed to enact a legislative fix to protect I.V.F. That may not be so simple. The 1872 state law on which Justice Jay Mitchell based his majority opinion, the Wrongful Death of a Minor Act, presumably could be replaced by new legislation. But Chief Justice Parker warned in his concurring opinion that the recent voter-approved constitutional protection for “unborn life” would stand in the way.
“Carving out an exception for the people in this case, small as they were,” he wrote, in reference to the destroyed frozen embryos at the heart of the case, “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.”
As Alabama’s political leaders search for a way out of this mess, I can’t help but notice their silence on the closely related subject of abortion. As soon as the Supreme Court overturned Roe v. Wade, Alabama’s pre-Dobbs abortion law sprang into effect. It is a total ban, making an exception only to prevent “a serious health risk” to the pregnant woman, not for pregnancies resulting from rape or incest. As of 2021, Alabama had the fourth-highest maternal death rate in the country, behind only Arkansas, Mississippi and Tennessee. (To put this in perspective, a woman giving birth in Alabama is more than four times as likely to die in the process or soon thereafter as one in California.) Restoring access to abortion might seem to be a logical, even natural topic of conversation.
So why do we hear nothing from those so quick to self-protectively bemoan the state court’s I.V.F. decision? Religion is part of the answer, no doubt, but there is something more. Abortion is generally portrayed as a woman’s issue; an unwanted or even dangerous pregnancy is her problem. Infertility, by contrast, is seen as a couple’s problem. That means there is a man involved (even if, for lesbian couples, for example, or for single women, that man is only a sperm donor). And when men have a problem, we know the world is going to snap to attention.
Rhetoric about the “sanctity of unborn life,” in the words of Alabama’s constitution, has for too long been cost-free, a politician’s cheap thrill. Now we see that, taken to extremes in the hands of the ideologues our current political culture nurtures, it has a price, one that society now seems reluctant to pay. For that realization, we can, as I said earlier, thank the Alabama Supreme Court.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”
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