We Freeze People, Don’t We?

By KIM BELLARD

Perhaps you’ve heard about the controversial Alabama Supreme Court ruling about in-vitro fertilization (IVF), in which the court declared that frozen embryos were people. The court stated that it has long held that “unborn children are ‘children,’” with Chief Justice Tom Parker – more on him later – opining in a concurring opinion:

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. Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

Seriously.

Many people have already weighed in on this decision and its implications, but I couldn’t resist taking some pleasure in seeing “pro-life” advocates tying themselves in knots trying to explain why, when they legislated that life begins at conception, they didn’t mean this kind of conception and that kind of life.

John Oliver was typically on point, noting that the Alabama ruling was “wrong for a whole bunch of reasons. Mainly, if you freeze an embryo it’s fine. If you freeze a person, you have some explaining to do.”

The case in question wasn’t specifically about IVF, nor did the ruling explicitly outlaw it. It was a case about a patient who removed stored embryos and accidentally dropped them, and the couples whose embryos were destroyed wanted to hold that patient liable under the Wrongful Death of a Minor Act. The court said they could. Note, though, that neither the patient nor the clinic was being charged with murder or manslaughter…yet.

Although the Alabama Attorney General has already indicated he won’t prosecute IVF patients or clinicians, the ruling has had a chilling effect on fertility clinics in the states, with The University of Alabama at Birmingham health system and others indicating they were putting a pause on IVF treatments.

Justice Parker has long been known as something of a theocrat; as The New York Times wrote:

Since he was first elected to the nine-member court in 2004, and in his legal career before it, he has shown no reticence about expressing how his Christian beliefs have profoundly shaped his understanding of the law and his approach to it as a lawyer and judge.

His concurring opinion claimed: the state constitution had adopted a “theologically-based view of the sanctity of life.” Alabama is not alone. Kelly Baden, the vice president for public policy at the Guttmacher Institute, told BBC: “We do see that many elected officials and judges alike are often coming at this debate from a highly religious lens.”

Speaker Johnson has said:

The separation of church and state is a misnomer. People misunderstand it. Of course, it comes from a phrase that was in a letter that Jefferson wrote. It’s not in the Constitution. And what he was explaining is they did not want the government to encroach upon the church — not that they didn’t want principles of faith to have influence on our public life. It’s exactly the opposite.

And here we are.

Many Republicans are backtracking on the ruling.

Alabama Republican Governor Kay Ivey said she was “working on a solution.” Alabama legislators are already working on bills to protect IVF, clarifying that in vitro fertilization doesn’t count, with life only beginning when implanted in a uterus. Oh, OK, then.

Presumed Republican presidential nominee Donald Trump says he “strongly” supports IVF, and Republican Speaker of the House Mike Johnson said: “I believe the life of every single child has inestimable dignity and value. That is why I support IVF treatment, which has been a blessing for many moms and dads who have struggled with fertility,” Alabama Senator Tommy Tuberville somewhat hilariously managed to somehow both support the ruling and the need for IVF.

Eric Johnston, president of the Alabama Pro-Life Coalition, admitted:

It’s a win philosophically for the pro-life movement because it carries on the pro-life recognition of unborn life. But you get into a very difficult situation, where you have this medical procedure that’s accepted by most people, and then how do you deal with it? That’s the dilemma… But I think the pro-life community in general supports IVF, and I’ve known and worked with many people who have had children via IVF. And at the same time, they think abortion is wrong. This issue is so different from abortion, but it has to do with life.

The trouble is, red states are scrambling all over themselves passing ever-more restrictive abortion laws, with the “life begins at conception” mantra, and, despite what Speaker Johnson and other House Republicans say now, 125 of them have cosponsored the Life at Conception Act that makes no exception for IVF.

Gosh, who could have guessed IVF would be impacted by all this? Well, anyone who thought about it for a half second.

Although IVF only accounts for about 2% of births, it has been around for decades. An untold number of embryos are routinely stored (frozen) and, in some cases, destroyed. Now people like Republican Governor Greg Abbott would have us believe IVF is taking us all by surprise:

These are very complex issues where I’m not sure everybody has really thought about what all the potential problems are and as a result, no one really knows what the potential answers are. And I think you’re going to see states across the country come together grappling with these issues and coming up with solutions.

Once a fetus or an embryo is a person, what rights do they have, when do they qualify for tax credits/welfare/child support, and how do their rights compare to other people? As Jacob Holmes suggested in the Alabama Political Reporter: “Imagine you are in an in vitro fertilization clinic that is on fire, and you have time to save only 100 frozen embryos or a single 2-year-old child.” Do you save the most “lives,” or the only one actually breathing?

I know what I’d do.

I would be remiss if I didn’t note that Alabama has the third highest infant mortality rate in the U.S. (thank you, Arkansas and Mississippi!), and that it was one of 15 (red) states that is rejecting federal funds to help feed hungry children doing the summer (Alabama has some 500,000 such children).

Evidently, unborn or frozen “people” matter more than live ones.

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These are, I admit, complex ethical issues, but trying to legislate them, especially from the standpoint of one particular religious point-of-view, is only going to lead to more outcomes like we’re seeing in Alabama. Democracy demands that we do better to listen than to tell.

Kim is a former emarketing exec at a major Blues plan, editor of the late & lamented Tincture.io, and now regular THCB contributor