How is an Embryo a Baby?
In effectively banning IVF, Christian Nationalist theology now impacts millions of lives. Again.
Well, that was fast.
Last month, I wondered in this newsletter when Christian Nationalists would try to ban in-vitro fertilization (IVF) and gestational surrogacy. This week, the Alabama Supreme Court effectively did just that, ruling that an Alabama statute – the Wrongful Death of a Minor Act – applies to embryos.
That means that embryos are considered children under Alabama law, and that any “death” of an embryo is a basis for a wrongful death suit. The decision is a death knell for IVF in the state, since IVF generally involves creating many embryos and destroying any unused ones after some period of time.
Moreover, the basis for the ruling is so broad that it can easily be applied by other courts in a wide variety of cases, including abortion and surrogacy. If a microscopic clump of cells (1/100 of an inch in size) that would not live for two minutes outside of a womb or artificial support is morally a human being, then IVF, abortion, and surrogacy all involve murder. Even freezing embryos, a routine part of IVF, could be criminalized.
How can any of this make sense? Because this case, Aysenne v. The Center for Reproductive Medicine), is, like others before it, grounded not in science or secular law but in conservative Christian theology: specifically, the theological proposition that moral personhood begins at conception, the same proposition that was central to Dobbs, the Supreme Court case that overturned Roe v. Wade.
Indeed, this theological precept has become so embedded in American law that the parties to the Alabama case all had to stipulate it was so. At oral argument, the lawyer for the doctors were asked if an embryo is a life. He replied, “It is, Justice Cook. I think that the … embryo is a life, but the issue today is whether an embryo is a child protected under the [Wrongful Death Act].” In the end, the court decided that it is. A 1/100” blob, with no consciousness or independent selfhood, is legally the same as a baby.
To an outside observer, this should seem at once ridiculous and outrageous.
By what criterion is an embryo “a life”? Of course, an embryo is a living clump of cells, just like the cells in your pancreas or liver. But in what way is it a life in the moral, ethical, and legal sense – that is, a human life? A child?
For some conservative Christians, this question is easily answered, as Catholic dogma has held for centuries that life begins at conception when the “soul” is created. Protestants did not share this view until the 1970s — indeed, they sometimes ridiculed Catholics for holding it and held that life begins at birth. But as the Christian Right (which began to oppose desegregation) grew into a political force, the opposition to abortion, and the theology behind it, has by now it has been stitched into conservative Protestant theology and even read into a handful of Biblical verses that clearly are not actually about it.
But not only does this view have no basis in secular ethics, it isn’t even shared by all religious traditions. In Jewish law, life begins at birth, and abortion is not only permitted but religiously mandated when the mother’s life is in danger.
Nor does it make any scientific sense. In many species, several eggs are often fertilized before one successfully implants in the uterus and results in a pregnancy. Are each of those fertilized eggs a “life” in the ethical, moral sense of the word? It’s not even common sense. As one Alabama woman undergoing infertility treatment told the New York Times, “We have three embryos. We don’t have three children.”
This is an utter outrage, and one of the great, quiet triumphs of Christian Nationalism, the ideology that claims that the United States is founded on “Judeo-Christian” principles (a preposterous hyphenate, as this very example shows) and that secular power should be exercised on the basis of religious writ.
This isn’t just the invention of a few Alabama justices.
In Dobbs, Justice Alito (whose devout, conservative Catholicism we are told to pretend is irrelevant) returned, again and again, to the question of the “potential life” that is destroyed when an abortion takes place. For example, he writes, “Abortion destroys what those [previous Supreme Court] decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”
Of course, the term “unborn human being” doesn’t exist in the constitution, or the Bible for that matter. Nor does it occur in the Alabama law, which as the dissent noted was first enacted in 1872, when IVF was unimaginable. (Not only that, the dissent further notes that courts declined, several times, to apply the Wrongful Death Act to fetuses, let alone embryos.)
But for the last two decades, a series of conservative judicial opinions has enshrined it in American law (and Alabama law in particular), to the point where it could not even be argued in the Alabama case.
To be sure, there have been some efforts to provide a secular justification for the view that an embryo or fetus is actually an “unborn human being,” including one by Justice Neil Gorsuch, who argued in a 2009 article that “human life is fundamentally and inherently valuable” based on the “secular moral theory” that human life is a “basic good” that "ultimately comes not from abstract logical constructs (or religious beliefs).”
Fair enough – the Declaration of Independence recognizes “life” as a basic right held by all human beings. But that doesn’t mean that a fetus, let alone an embryo, is a human being, or how to balance the rights of a fetus against the rights of an adult woman.
Roe itself tried to set that time at which such rights begin as the moment of fetal viability. When a clump of cells cannot survive on its own, it cannot be said to have any rights. When it could live outside the womb, then it can. That was a messy compromise, but at least it was based in some secular conception of personhood.
The most honest, but perhaps chilling, opinion in Aysenne is the concurrence by Chief Justice Tom Parker. Drawing on Alabama’s “Sanctity of Unborn Life Amendment” passed in 1993, Justice Parker says the quiet part out loud. Sanctity, he notes, is defined in Webster’s as “1. holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: 3. INVIOLABILITY: sacred objects, obligations, or rights.”
When the 1993 amendment was passed, Chief Justice Parker continues, the drafters “chose the term ‘sanctity’ with all of its connotations,” including the religious ones. He continues, “This kind of acceptance is not foreign to our Constitution, which in its preamble “invok[es] the favor and guidance of Almighty God… and which declares that ‘all men … are endowed [with life] by their Creator.’”
Chief Justice Parker’s opinion is honest, because it says what everyone already knows to be the case: that the whole concept of the “sanctity of unborn life” is grounded in Christian religious teaching. But it is also chilling, since by refusing even to play the language games of democracy, he embraces the tenet of Christian Nationalism that Christian religious teaching is a justified (and indeed essential) basis for American law.
“Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Parker wrote, citing scripture.
That may be a valid theological proposition, and Chief Justice Parker to believe it is, of course, entirely his business. But the notion that such a sentence can be written in a state Supreme Court opinion should be profoundly disturbing. It shows how far the advance of Christian Nationalism has come in the last two decades. And where it might be going next.
Hello friends — I hope, for those of you in North America, the lengthening days are lifting spirits. I’m writing to you from Boston, where I’ll be chatting with Noah Feldman tonight about the future of Judaism. Here are some other things I’ve been up to:
Talking about Justice Thomas’s ethics lapses on CNN
Interviewing Rob Reiner about Christian Nationalism for Rolling Stone
Planning this extremely fun performance with Kleztronica in Brooklyn, March 9
Chatting about Jewish mysticism and art with some cool folks
Thanks for your support! See you next week.