Alabama Chief Justice uses theology to support controversial frozen embryo ruling

In February, the Alabama Supreme Court triggered a nationwide discussion on the nature and importance of in vitro fertilization (IVF) with the surprising ruling that embryos are children for purposes of the state’s Wrongful Death of a Minor Act. In its opinion, the majority concluded that “the ordinary meaning of ‘child’ includes children who have not yet been born,” and found no reason to exclude frozen embryos from that definition.

Largely overlooked, however, in the firestorm of reaction focused on the consequences of the Alabama court’s ruling was the troubling, religion-based rationale for the decision propounded by one key member of the majority. In a concurring opinion, Chief Justice Tom Parker fastened the court’s ruling to his view that Alabama law is centered on a theological understanding of the “sanctity of life.” From the concurrence:

[T]he theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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.

According to Chief Justice Parker, when a 2018 constitutional amendment was enacted declaring the “public policy of [Alabama is] to recognize and support the sanctity of unborn life,” the state adopted a religious perspective because the word “sanctity,” according to Parker, can only be properly understood in theological terms.

From that starting point, there is no stopping him from merging his legal and religious perspectives:

We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. 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.” Jeremiah 1:5 (NKJV 1982). . . .  [T]he People of this State…have required us to treat every human being in accordance with the fear of a holy God….

Chief Justice Parker’s ruling, which importantly was not the majority opinion, is nonetheless an alarming and brazen substitution of theological belief for legal reasoning. To imbue legal provisions with religious significance is surely out of step with our commitment to religious liberty for all.

“He was elected by the people of Alabama to be chief justice of the supreme court, not to be chief theologian,” said BJC Executive Director Amanda Tyler on the most recent Respecting Religion podcast. Tune in to the episode – titled “A chief justice or chief theologian for Alabama?” – to hear more from Tyler and General Counsel Holly Hollman on the troubling ruling and concurrence.