". . . and having done all . . . stand firm." Eph. 6:13


‘Upholding the Sanctity of Unborn Life’: Alabama Supreme Court Upholds Unborn Embryos’ Rights

February 21, 2024

The Yellowhammer State’s highest court is ruling that frozen embryos are legally children under state law. In a ruling issued Friday, Alabama’s Supreme Court declared that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” The relevant case involved the question of whether or not parents could sue after their cryogenically frozen embryos were accidentally destroyed by an employee at a fertility clinic.

“The parties to these cases have raised many difficult questions,” wrote Justice Jay Mitchell in the court’s opinion, “including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to such children, and the public-policy implications of treating extrauterine children as human beings.” However, the court determined that it did not need to answer each question raised, stating that ultimately “the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.”

Alabama’s Wrongful Death of a Minor Act was enacted in 1872 and, according to the court, regards unborn babies as human beings and children. The justices provided extensive examples of definitions of the term “child” throughout the state’s legal history, including two relatively recent decisions — 2011’s “Mack v. Carmack” and 2012’s “Hamilton v. Scott” — which both affirmed that “Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child.” But, the court noted, “Even if the word ‘child’ were ambiguous … the Alabama Constitution would require courts to resolve the ambiguity in favor of protecting unborn life.”

The court ultimately determined that “the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.” They added, “That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

Joseph Backholm, Family Research Council’s senior fellow for Biblical Worldview and a lawyer, commented to The Washington Stand, “This is a significant opinion because the legal question in this case requires the court to answer the question of when a person becomes a person.” He continued, “This is not fundamentally a legal question, but the way technology has changed the world requires the legal system to have an answer to the question. As much as progressives would prefer the court to get their answer from a Planned Parenthood brochure, the court is obviously trying to do better than that.”

In his concurring opinion, Chief Justice Tom Parker went even further than the court’s majority, citing Scripture and Christian tradition in defense of unborn life. Parker wrote, “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.” In order to find a definition of “the sanctity of unborn life” as used in the state’s constitution, the chief justice noted that the court “must also ‘draw from deeper wells’ instead of relying ‘solely on dictionaries.’”

Parker noted, “Recent advocates of the sanctity of life have attempted to articulate the principle on purely secular philosophical grounds. … Such advocates have preferred to use the term ‘inviolability’ rather than ‘sanctity’ to avoid what one scholar calls ‘distracting theological connotations.’” But, the judge continued, “When the People of Alabama adopted [the constitutional amendment regarding the sanctity of life], they did not use the term ‘inviolability,’ with its secular connotations, but rather they chose the term ‘sanctity,’ with all of its connotations.”

Like U.S. Supreme Court Justice Samuel Alito in his monumental opinion overturning Roe v. Wade, Parker cited revered English legal scholar Sir William Blackstone, who said that “[l]ife is the immediate gift of God, a right inherent by nature in every individual.” Glossing the scant history of the term “sanctity of life” in legal decisions, Parker continued, “But the principle itself — that human life is fundamentally distinct from other forms of life and cannot be taken intentionally without justification — has deep roots that reach back to the creation of man ‘in the image of God.’ Genesis 1:27 (King James).”

To further bolster his argument, Parker cites both Augustine and Thomas Aquinas, broadly considered to be two of the greatest Christian theologians and philosophers in history, and the influential John Calvin. The chief justice quoted:

“Aquinas taught that ‘it is in no way lawful to slay the innocent’ because ‘we ought to love the nature which God has made, and which is destroyed by slaying him.’ … Likewise, Calvin explained the reason for the Sixth Commandment this way: ‘Man is both the image of God and our flesh. Wherefore, if we would not violate the image of God, we must hold the person of man sacred.’ … These and many similar writings, creeds, catechisms, and teachings have informed the American public's view of life as sacred.”

Parker concludes that, in light of Alabama’s constitution and its “theologically based view of the sanctity of life,” “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.” Regarding the state’s constitutional commitment to upholding “the sanctity of life,” Parker clarified, “Instead of gleaning bits and pieces of the state’s public policy from the Constitution, statutes, common law, and precedents, the People of Alabama explicitly told the Legislature, the Executive, and the Judiciary what they are supposed to do.”

In acclaiming Parker’s reasoning and judgement, Backholm commented: “I think the objection to using ancient wisdom for modern moral reasoning is because presentism, which dominates the political Left, disdains old ideas simply because they are old. Their view of humanity is that everything new is better than everything old simply because it is new. They see us as constantly evolving and therefore constantly improving. These justices don’t share that perspective, so they are trying to find what is good and right, not merely what is new. The fact that the court’s arguments and references are offensive to progressive sensibilities was predictable, but the arguments themselves are an improvement over anchoring human rights in things like ‘emanations from penumbras’ that progressives have been comfortable with in the past. If we are going to pretend to care about human rights, we need to respect where the concept of human rights came from. The Bible is where it came from.”

Only one of the Alabama Supreme Court’s nine justices, Justice Greg Cook, dissented, arguing in part that the court’s decision would significantly and negatively impact the in vitro fertilization (IVF) industry. Parker argued back that “IVF has been largely unregulated in the United States, with some commentators even comparing it to the Wild West.” The chief justice noted that the European Union, Australia, New Zealand, and other Western nations have begun regulating the practice, for a multitude of reasons. He wrote, “These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life than the prevailing practice of creating and transferring at once many embryos that have little chance of survival and then throwing embryos away after a while.”

Parker then encouraged the state legislature to consider regulating the IVF industry, noting that the “Legislature is free to do so in any way it decides, provided that it comports with the Alabama Constitution, including the Sanctity of Unborn Life Amendment.”

In comments to The Washington Stand, Mary Szoch, director of the Center for Human Dignity at FRC, observed, “In Chief Justice Tom Parker’s concurring opinion, he wrote eloquently about the will of the people of Alabama as reflected in the state constitution that requires all three branches of Alabama’s government treat every person with the utmost dignity and respect. Following this, he referenced that the people of Alabama have required that every human being be treated ‘in accordance with the fear of a holy God who made them in His image.’”

She continued, “Chief Justice Parker’s references to God were hardly out of line with the foundation of American democracy. In his farewell address, George Washington said, ‘It is substantially true that virtue or morality is a necessary spring of popular government.’ John Adams argued, ‘Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.’ Virtue, morality, and the Christian principle of love of neighbor, have always been at the heart of American government. On Friday, Chief Justice Parker invoked those principles to protect the smallest of our brothers and sisters. Praise God!”

S.A. McCarthy serves as a news writer at The Washington Stand.