Photo by Colin Maynard on Unsplash

Alabama Ruling Threatens Procedure That Allows Millions Of Women To Have Babies

Phil Garber
10 min readFeb 23, 2024

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At three or five days after it has been fertilized, a human embryo or blastocyst is an indistinguishable circular mass of cells, maybe less than a millimeter wide.

In Alabama, that tiny circle of cells is now considered a child.

The right wing, Christian nationalist assault on a woman’s right to choose abortion took another major hit with last week’s Alabama Supreme Court ruling that frozen embryos can be considered children, jeopardizing a procedure that has allowed hundreds of thousands of women to have children they would otherwise not have been able to bear.

The court ruled on Feb. 16 that frozen embryos in test tubes have the same rights as living children, and that a person can be held liable for destroying them, imperiling in vitro fertilization or IVF treatment in the state. IVF is very common in the U.S. as one in six Americans who struggle with infertility turn to IVF, according to the National Infertility Association.

In a concurring opinion, Alabama Supreme Court Chief Justice Tom Parker, a strong trump supporter, unabashed Christian nationalist and longtime, influential abortion opponent, invoked the prophet Jeremiah and the writings of 16th- and 17th-century theologians.

“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” he wrote. “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.”

Referring to the Book of Genesis, Parker noted that “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.’”

In a post on social media, Tony Perkins, the president of the conservative Family Research Council, described the opinion as a “beautiful defense of life and the Alabama Constitution.”

GOP presidential candidate Nikki Haley said that “embryos, to me, are babies” although she later tried to clarify her remarks, and said “I didn’t say that I agreed with the Alabama ruling” while reiterating her belief that an embryo is “an unborn baby.”

Democrats decried the ruling and the threat it imposes to IVF procedures. Pro-choice advocates also said that the ruling over fertilized eggs also touches on contraception, as the next step may be to outlaw forms of hormonal birth control that prevent the implantation of a fertilized egg into the uterine lining.

“It is not a coincidence that the lawmakers spearheading the assault on abortion are also the lawmakers spearheading the assault on other forms of bodily autonomy — like the right of transgender Americans to exist in public as themselves,” wrote N.Y. Times columnist Jamelle Bouie. “They are also the same lawmakers waging a broader campaign to restrict the ability of people in their states to live and think as they please.”

In vitro fertilization is when an egg is removed from a woman’s body and combined with sperm inside a laboratory before being implanted. Patients undergo eight to 10 days of fertility injections with hormones that help their eggs mature. After fertilization, doctors watch the embryos as they develop.

Experts said that If 10 eggs are exposed to sperm, about seven will fertilize. Of those seven, only 25 percent to 50 percent will grow in the laboratory long enough to be considered a more mature embryo or blastocyst. Depending on the age of the patient, the blastocyst has between a 10 percent and 60 percent likelihood of becoming a baby.

IVF was developed in the 1970s to help women with blocked fallopian tubes. In ensuing years, it has expanded to help conception for people with recurrent miscarriages, male factor infertility, those utilizing surrogacy, and those for whom other fertility treatments have failed.

The technology has also allowed couples who carry genetic diseases to test their embryos and only transfer cells that won’t be affected by the diseases. Clinicians test cell samples from the embryos for genetic diseases or abnormalities. The tests can take anywhere from two to four weeks and freezing the eggs in the meantime keeps them viable while health care providers look into genetic factors.

Patients can also choose to freeze embryos when they don’t intend to get pregnant right away. Typically, there are higher success rates when fertilized embryos are frozen, not just the egg.

Patients also may choose to freeze embryos for medical reasons, such as before chemotherapy for cancer that may damage the ovaries. Freezing the embryos allows doctors to preserve the others for future use so one embryo can be implanted at a time, which is much safer for the patient and the future baby.

Parker said he supported the ruling in large part because of the number of embryo transfers that he said go awry.

“Less than half of embryo transfers result in live births, which raises the question whether transferring multiple embryos at once risks the deaths of these little people,” Parker wrote.

Parker noted that other western nations, including Australia and New Zealand, have adopted regulations that allow IVF to continue “while drastically reducing the chances of embryos being killed, whether in the creation process, the implantation process, the freezing process, or by willful killing when they become inconvenient.”

Parker was elected to the Supreme Court in 1994. Before joining the court, Parker was the founding executive director of the Alabama Family Alliance, a conservative advocacy group now called the Alabama Policy Institute. He also served as an assistant state attorney general to Jeff Sessions, who later became a U.S. senator and trump’s attorney general.

Parker was a close aide and ally of Roy Moore, the former chief justice of the Alabama Supreme Court who was twice removed from the job, first for dismissing a federal court order to remove an enormous granite monument of the Ten Commandments he had installed in the state judicial building, and then for ordering state judges to defy the U.S. Supreme Court’s decision affirming gay marriage.

As a candidate for the court in 2004, he was criticized by the Southern Poverty Law Center for distributing Confederate flags at a funeral of a Confederate widow. Parker also was criticized for attending a party in Selma commemorating the birthday of Confederate Gen. Nathan Bedford Forrest, founder of the Ku Klux Klan. The party was hosted at “Fort Dixie” by Pat and Butch Godwin, operator of Friends of Forrest Inc. and also involved with the League of the South.

Parker is considered one of the architects for laying the groundwork that contributed to the U.S. Supreme Court’s decision in 2022 to overturn a federal right to abortion with Dobbs v. Jackson. The argument over “personhood” for pre-born children has gained momentum since Roe was overturned. As states consider further abortion restrictions, the goal for anti-abortion activists is to build the case that a fetus or even an embryo is a person for every purpose and circumstance.

The Centers for Disease Control and Prevention (CDC) reported that in 2021, IVF and related assisted reproductive technologies resulted in 97,128 live born infants. The CDC reported that the use of assisted reproductive technologies, including IVF, has more than doubled over the past decade and that around 2.3 percent of all infants born in the U.S. each year are conceived using ART.

The Alabama ruling has sent ripples of confusion and fear throughout the world of reproductive medicine and among fertility doctors who fear that they could be criminally charged if they participate in an unsuccessful IVF. The Washington Post reported that at least two of the state’s eight IVF clinics said they were pausing some parts of IVF treatment and canceled appointments with patients.

“The significance of this decision impacts all Alabamians and will likely lead to fewer babies — children, grandchildren, nieces, nephews, and cousins — as fertility options become limited for those who want to have a family,” the Medical Association of the State of Alabama said in a statement Wednesday.

Parker said his opinion was based partly on the court’s interpretation of Biblical teachings. He wrote that because “God made every person in His image” that “each person therefore has a value that far exceeds the ability of human beings to calculate.” Parker wrote that “this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

Parker has said that he is a proponent of the “Seven Mountain Mandate,” a theological approach that calls on Christians to impose fundamentalist values on all aspects of American life. Parker’s approach is no different than Sharia law, the much maligned body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Quran and hadith.

Parker was interviewed recently on the program of self-proclaimed “prophet” and QAnon conspiracy theorist Johnny Enlow. Enlow is a pro-Trump “prophet” and leading proponent of the “Seven Mountain Mandate,” a “quasi-biblical blueprint for theocracy” that asserts that Christians must impose fundamentalist values on American society by conquering the “seven mountains” of cultural influence in U.S. life: government, education, media, religion, family, business, and entertainment.

The interview on Enlow’s program aired the same day as the ruling was issued. Parker claimed that “God created government” and said it’s “heartbreaking” that “we have let it go into the possession of others.” Parker then invoked the Seven Mountain Mandate, saying, “And that’s why he is calling and equipping people to step back into these mountains right now.”

Parker also claimed that God “is equipping me with something for the very specific situation that I’m facing,” and agreed when Enlow asked if “the holy spirit is there” when he’s “arbitrating a session” and performing his job as chief justice.

Trump has embraced Christian nationalism and addressed the National Religious Broadcasters convention in Nashville on Thursday. Trump claimed that a “radical left, corrupt political class” was persecuting Christians and that his political opponents are part of a “wicked” system. Trump is facing 91 felony counts in four criminal cases, including one tied to his efforts to overturn the 2020 election.

Last year, Parker invited Christian nationalist pastor and media figure Sean Feucht to a worship session in the court’s chambers. Parker also joined a prayer call in March 2023 with people who claimed to be prophets and apostles, and Parker prayed that “there will be a growing hunger in the judges of Alabama, and around the nation for more of God. And that they will be receptive to his moves toward restoration of the judges, so that they can play their forecast role in revival in this nation.”

Feucht preaches that conservative Christians must “take a stand for the Biblical moral law to be applied to our society. Feucht has said that he wants “Christians to be the only ones” in government so that God can “be in control of everything.” Feucht’s ministry and various nonprofits have reportedly brought in millions of dollars through donations and fundraising. Feucht has purchased multiple vacation homes, even as he reported receiving no income from contributions to his ministry in 2020.

Figures like Feucht are becoming more accepted in a nation where more than half of Republicans believe the country should be a strictly Christian nation, either adhering to the ideals of Christian nationalism (21 percent) or sympathizing with those views (33 percent), according to a new survey from the Public Religion Research Institute and the Brookings Institution.

The study, “Politics & Elections Race & Ethnicity Religion & Culture,” found that Christian nationalism is associated with five core beliefs, including: anti-Black racism, anti-immigrant views, antisemitic views, anti-Muslim views, and patriarchal understandings of traditional gender roles. White evangelical Protestants are more supportive of Christian nationalism than any other group surveyed. Nearly two-thirds of white evangelical Protestants qualify as either Christian nationalism sympathizers (35 percent) or adherents (29 percent).

The study also showed how Christian nationalism is closely linked with authoritarianism. According to the survey, half of Christian nationalism adherents and nearly 4 in 10 sympathizers said they support the idea of an authoritarian leader powerful enough to keep these Christian values in society. Such values would be infused into a new trump administration under an effort headed by Russell Vought, Trump’s director of the Office of Management and Budget during his first term. The policies to prop up Christian nationalism include banning immigration of non-Christians into the United States, overturning same-sex marriage, and barring access to contraception.

In his concurring statement to the recent Alabama ruling, Parker referred to the 2009 “Manhattan Declaration: A Call of Christian Conscience,” a manifesto issued by Eastern Orthodox, Catholic, and evangelical Christian leaders to affirm support of “the sanctity of life, traditional marriage, and religious liberty.”

“It is worth noting that the Manhattan Declaration was signed by ‘Orthodox, Catholic, and Evangelical Christians’ who ‘joined together across historic lines of ecclesial differences, to speak together on certain issues, one of which was the sanctity of life,” Parker said.
The declaration also objected to same-sex marriage and the “general erosion of the ‘marriage culture’ with the specter of divorce, greater acceptance of infidelity and the uncoupling of marriage from childbearing.”

Some religious leaders have said the declaration’s principles and its opposition to same-sex marriage in particular, were contrary to the teachings of Jesus.

The document was written by evangelical leader and Christian author Charles Colson, Princeton University law professor Robert P. George and Beeson Divinity School dean Timothy George. Colson, who died in 2012, was Special Counsel to President Richard Nixon from 1969 to 1970. Once known as Nixon’s “hatchet man,” Colson gained notoriety at the height of the Watergate scandal, for being named as one of the Watergate Seven, and also for pleading guilty to obstruction of justice for attempting to defame Pentagon Papers defendant Daniel Ellsberg. In 1974, he served seven months in the federal Maxwell Prison in Alabama, as the first member of the Nixon administration to be incarcerated for Watergate-related charges.

Colson became an evangelical Christian in 1973. His mid-life religious conversion sparked a radical life change that led to the founding of his non-profit ministry Prison Fellowship and, three years later, Prison Fellowship International, to a focus on Christian worldview teaching and training around the world.

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Phil Garber

Journalist for 40 years and now a creative writer