Alabama Says Frozen Embryos Are Children
A narrow ruling in a civil case could have huge consequences.
NYT (“Alabama Rules Frozen Embryos Are Children, Raising Questions About Fertility Care“):
An Alabama Supreme Court’s ruling that frozen embryos in test tubes should be considered children has sent shock waves through the world of reproductive medicine, casting doubt over fertility care for would-be parents in the state and raising complex legal questions with implications extending far beyond Alabama.
[…]
The judges issued the ruling on Friday in appeals cases brought by couples whose embryos were destroyed in 2020, when a hospital patient removed frozen embryos from tanks of liquid nitrogen in Mobile and dropped them on the floor.
Referencing antiabortion language in the state constitution, the judges’ majority opinion said that an 1872 statute allowing parents to sue over the wrongful death of a minor child applies to unborn children, with no exception for “extrauterine children.”
“Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker wrote in a concurring opinion, citing scripture.
I am, to say the least, not a fan of judges citing scripture as a basis for their rulings. Indeed, it would seem to violate the Establishment Clause of the First Amendment. It’s the kind of thing that continues to give my erstwhile home state a bad name. As a mutual friend of Steven Taylor and mine, a retired professor at my graduate alma mater, noted on Facebook yesterday, it’s “usually bad when Alabama makes the national news.”
That said, the reasoning of the main opinion doesn’t strike me as nutty. The embryos of the two plaintiff couples were destroyed through the neglect of the clinic.
a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero
temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.
It seems reasonable to me that the clinic is liable for damages from their negligence.
Each set of plaintiffs asserted claims under Alabama’s Wrongful Death of a Minor Act, § 6-5-391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes’ case) or negligence and wantonness (in the Aysennes’ case), for which they sought compensatory
damages, including damages for mental anguish and emotional distress. The plaintiffs specified, however, that their common-law claims were pleaded “in the alternative, and only [apply] should the Courts of this State or the United States Supreme Court ultimately rule that [an extrauterine embryo] is not a minor child, but is instead property.” In addition to those claims, the Aysennes brought breach-of-contract and bailment claims against the Center.
I have no opinion on the contract and bailment claims, having no familiarity with the contracts in question and only passing understanding of the applicable law. But the notion that fertilized embryos would be treated as human life in this particular circumstance doesn’t disturb me in the least. Even when Roe was in its fullest effect and abortion was legal through the end of the second trimester, we treated the unborn child as a human being in homicide cases and in civil suits where someone’s negligence or malfeasance caused the death of said child.
Regardless, the trial court dismissed the case without hearing it.
In each of its judgments, the trial court explained its view that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person'” or “‘child,'” and it therefore held that their loss could not give rise to a wrongful-death claim.
The trial court also concluded that the plaintiffs’ negligence and wantonness claims could not proceed. Specifically, the court reasoned that, to the extent those claims sought recovery for the value of embryonic children, the claims were barred by Alabama’s longstanding prohibition on the recovery of compensatory damages for loss of human life. And to the extent the claims sought emotional-distress damages, the trial court said that they were barred by the traditional limits to Alabama’s “zone of
danger test,” which “limits recovery for emotional injury only to plaintiffs who sustained a physical injury … or were placed in immediate risk of physical harm ….”
I must confess to only passing familiarity with Alabama law on these matters but, as summarized, the trial court’s reasoning also doesn’t strike me as crazy. It does, however, strike me as unjust from an equity standpoint. The plaintiffs suffered real emotional damage because of the clinic’s negligence.
The Alabama Supreme Court’s analysis begins:
The parties to these cases have raised many difficult questions, 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. But the Court today need not address these questions because, as explained below, the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation. That language resolves the only issue on appeal with respect to the plaintiffs’ wrongful-death claims and renders moot their common-law negligence and wantonness claims.
As we’ll see later, most of the objections to the ruling are on the broader issues that the Alabama Supremes say are not at stake in the case. Instead, they rely on the interpretation of a longstanding (first enacted in 1872 but updated as recently as 2022) Alabama statute. Their analysis is lengthy and I won’t excerpt it here out of practicality. But, in short, the same Court held in 2011 that “an unborn child qualifies as a ‘minor child’ under the Act, regardless of that child’s viability or stage of development.” The defendants don’t challenge that assumption.
They then cite multiple dictionary definitions of “child” and “children” — a practice I abhor — demonstrating that including unborn children in the definition has been customary for generations, including when the Act was written. They also note that Blackstone’s Commentaries support such a view. All of this is cited as evidence that unborn children are children in a textualist view of the statute.
But, of course, neither Noah Webster nor William Blackstone opined on the status of embryos in a test tube, which is the question in this case. The majority opinion simply sidesteps that inconvenient fact by contending that the defendants (and, by extension, the trial court that dismissed the case on summary judgment) were asking for an “unwritten exception” to the existing law and precedents.
Still, as noted earlier, I don’t find the ruling crazy from a legal standpoint and am inclined to support it from an equity standpoint. The plaintiffs were in fact injured and it’s perfectly reasonable that they should be able to seek compensation for their damages.
The problem, of course, is from the potential implications of the ruling beyond the narrow context of parents who are harmed by the negligence of clinics.
Back to the NYT piece:
Infertility specialists and legal experts said the ruling had potentially profound effects, which should be of concern to every American who may need to access reproductive services like in vitro fertilization.
[…]
Reproductive medicine scientists also blasted the ruling, saying it was a “medically and scientifically unfounded decision.”
“The court held that a fertilized frozen egg in a fertility clinic freezer should be treated as the legal equivalent of an existent child or a fetus gestating in a womb,” said Dr. Paula Amato, the president of the American Society for Reproductive Medicine.
“Science and everyday common sense tell us they are not,” she said. Even in the natural world, she added, several eggs are often fertilized before one successfully implants in the uterus and results in a pregnancy.
Dr. Amato predicted that young doctors would stop going to Alabama to train or to practice medicine in the aftermath of the ruling, and that doctors would close fertility clinics in the state if operating them meant running the risk of being brought up on civil or criminal charges.
“Modern fertility care will be unavailable to the people of Alabama,” Dr. Amato predicted.
While this strikes me as hyperbolic, there are obvious—and absurd—consequences to a broader policy that treats frozen embryos as human beings. Indeed, the defendant clinic and others raised them in their filings:
[T]he defendants and their amicus devote large portions of their briefs to emphasizing undesirable public-policy outcomes that, they say, will arise if this Court does not create an exception to wrongful-death liability for extrauterine children. In particular, they assert that treating extrauterine children as “children” for purposes of wrongful-death liability will “substantially increase the cost of IVF in Alabama” and could make cryogenic preservation onerous. Medical Association of the State of Alabama amicus brief at 42; see also Appellees’ brief in appeal no. SC-2022-0515 at 36 (arguing that “costs and storage issues would be prohibitive”).
The Alabama Supremes simply punted on that:
While we appreciate the defendants’ concerns, these types of policyfocused arguments belong before the Legislature, not this Court. Judges are required to conform our rulings “to the expressions of the legislature, to the letter of the statute,” and to the Constitution, “without indulging a speculation, either upon the impolicy, or the hardship, of the law.” Priestman v. United States, 4 U.S. (4 Dall.) 28, 30 n.1 in the reporter’s synopsis (1800) (Chase, J., writing for the federal circuit court).
While true, it’s certainly unsatisfying as an outcome. While I tend to agree with the narrow outcome of the ruling, they’ve potentially opened a Pandora’s box of follow-on litigation. “Too bad, so sad” is a poor response to that.
It is noteworthy that this merely sends the case to trial. It’s possible (although I would say unlikely) that a jury will find that the clinic acted with reasonable care. It’s possible—and, indeed, quite likely—that a jury will find that the contracts the plaintiffs signed indemnify the clinic from liability. (One couple gave the clinic permission to destroy the embryos after five years. The other gave them permission to donate them after the same period.) It’s also possible that, even if the clinic is found liable, the damages will be relatively small.
But, again, this has opened Pandora’s Box. I would not be shocked if other states followed suit. And I don’t expect the US Supreme Court to offer any clarity.
The clarity I anticipate is an eventual ruling that all fertilized ova are wards of the state, and any unsuccessful pregnancy is homicide. Hyperbole? Of course. But a straight shot down the highway for our current Supremes. *
*First thought rattling around my brain. Gonna drink some coffee and hope that I’m overthinking/overreacting.
I wish I could remember the name of the comedian who said it but here it is: “Life begins at erection and ends at birth.” (Could it have been George Carlin? He gets credit for all the good stuff.)
Of course they’re in favor of protecting embryos – they don’t need health care or daycare or any of the other expensive stuff that babies and children do. They’re the perfect symbol of claiming they care without having to actually prove it. They could make the same ruling about stuffed animal toys and get the same credit.
I think the point is that the couple could have sued on some other basis than wrongful death. Destruction of property, opportunity, etc. Normal tort stuff. But they didn’t, they brought a wrongful death suit. Probably with the intention of getting a higher court review.
The reaction by the conservatives organizations which currently hold the whip hand of power in the Republican party is clarifying.
https://www.washingtonpost.com/nation/2024/02/20/alabama-supreme-court-ivf-embryos/
In a sane world, this might remain a narrow ruling without wider impact.
But we don’t live in that world, do we?
The Alabama Supreme Court could have found in favor of the plaintiffs without conferring personhood on frozen embryos. They made a distinct choice to go this route, using Biblical verses in the decision. Using phrases such as “extrauterine children” and calling them “little people” is deliberate.
The “we don’t care about the ramifications of our ruling, that’s the legislature’s problem” is just so f*&king irresponsible.
This is a full-on assault on IVF, and it unequivocally will have an impact on fertility clinics. As has been referenced elsewhere, in some divorce decrees, destruction of frozen fertilized embryos is part of the agreement. This will be a huge headache and legal mess for years. I feel deeply sorry for all of the couples facing fertility challenges in Alabama.
If I owned this IVF clinic I would hire a truck, load the embryos and drive them to a free state. It is not going to be possible to do IVF in Alabama. I’d say it’d be a brain-drain, but Alabama was drained long ago.
I’m not sure how you are tying this together. Of course, given what we are told about the case, the clinic should be liable for damages. What does that have to do with declaring a fertilized egg a human being? The plaintiffs suffered a tort and the court and/or jury can assess the damages. If the legislature feels that the worth put on a fertilized embryo is too low, they are free to legislate a specific worth they feel is adequate.
My wife had two miscarriages between our 2nd and 3rd child. It was still 1st trimester. To be blunt, they were flushed. In the Alabama interpretation of a child, it is reasonable to assume that all miscarriages should go to the county coroner for determination of cause of death and recommendation of state course of action toward the woman.
What other implications? Should all those frozen embryos be eligible for dependent tax status?
Or any state and federal dependent aid? Should the embryos be immediately returned to their owners transferring responsibility and absolving the clinics of any liability?
It is also apparent that the justices could’ve come to the same conclusion without invoking religion at all. But the conclusion is not the real message.
This will go on.
@MarkedMan: Exactly.
I just saw a comment on WaPo that essentially said that a lot of the blame for this ruling rests on the plaintiffs, who, after successfully having IVF procedures themselves have now basically ruined that opportunity for others, so are about as on-point with the current GOP as they could possibly be.
@MarkedMan:
The trial court dismissed the case in summary judgment. That’s how it got to the ASC to begin with.
@Scott: In fairness, only a concurring opinion mentioned religion.
Seems to me the conflict is that the trial court ruled (summarily) that the embryos were not “persons” or a “child” in the context of wrongful death, but were human beings in the context of denying the claims of negligence and wantonness.
So the embryos were human beings, but not persons in the eyes of the law? And abortion laws restrict the intentional killing of human beings before birth to medical professionals under specific contract with the mother. Doctors can’t run around killing the “pre-born” of mothers who don’t request the death and mothers are prosecuted for killing their “pre-born” outside licensed abortion procedures.
So the question that no one wants to address remains the same. Is an embryo or fetus a human being? And if a human being when do they achieve “personhood” and thus are protected from intentional killing by the homicide statutes or are wrongful deaths when unintentionally killed?
And yes, answering those questions will have significant impact, which is why most people don’t wish to see them addressed as they were in this case.
Accidentally posted this to yesterday’s open forum:
I guarantee you that every single IVF firm and practice in Alabama is today looking at options for moving their operations out of state. Many will move to a state that doesn’t have this onerous ruling.
I’ll be the first to say, like I did after the Dobbs decision, “Come to California. You’re be welcome here.”
@JKB:
No.
It’s not. So it’s moot.
Alabama, once again, shows the rest of the USA, how backwards it is. (Sorry, Drs. Joyner and Taylor)
Dr. Joyner,
Respectfully, and I sincerely mean respectfully, the only reasons you see this as a narrow ruling is because 1. You are not a lawyer (most important), and 2. You are a man.
I’m not even the best lawyer on this site and I’m absolutely certain I could win a wrongful death case against a woman who miscarried based on this ruling. Didn’t follow Dr order perfectly, liability. Smoked one cigarette, liability. Followed Dr orders too well? Liability. Are Black? Fucking death penalty.
If I was an OB-GYN I would leave the state yesterday. Your liability and liability insurance premiums just went through the roof. Hell, if I was an insurer I would cancel those policies immediately. In title insurance we call those “unlimited liability claims.”
Also, any article using the term “extrauterine children” is in league with the fascists. Those aren’t children JKB, they are embryos. They aren’t alive.
Sure, but there is literally nothing else to hang the claim on. If you can freeze it and then still make a baby when you thaw it, it’s not alive.
@James Joyner: I still don’t get where you are coming from. If the lower court incorrectly ruled there are no damages, the higher court can overrule. If there is legislation that prevents them from doing so, i.e. legislation preventing damages form being awarded for embryos (I doubt it, but hypothetically), then the legislature needs to act. But there is nothing here that requires anyone to redefine embryos in order to find damages.
@Beth: Essentially, I agree 100%, but there is a nit that actually turns out to be important:
There is no consensus on what it means to be “alive” at the cellular level. Are white blood cells alive? In some ways of looking at it, yes. In others, no. But we don’t need to get drawn into this distinction. Individual cells have no rights, fertilized or unfertilized. If someone hacks off some of my cells, say, my nose, then the damaged party is me, not my cells.
And, anticipating the argument, I’m not equating a fertilized ovum to a white blood cell. We ascribe different values to all kinds of things when we assess damages. It was expensive and difficult and emotionally charged for the parents to create those fertilized eggs and that should be accounted for when assessing the damages.
So if that embryo is a child, what gender is it? Answer me that, MAGAt’s.
Memo to Chief Bench Warmer Parker:
This Constitution, NOT YOUR HOLY BOOK, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Constitution for the United States of America
Article VI
@Beth: as a technical biological matter they are alive (as living cells) but they are alive in the manner of a part of your body, a living cell, not an independent biological entity.
@MarkedMan: that’s inaccurate, a cell that has not experienced cell death is certainly alive (not dead). But the improtant part is more this
As indeed, the legal party is not your nose (except pehraps in the future in Alabama… although leaving aside the utter grotesqueness of the real world consequences, the comedic factor here is in the abstract amusing, this positively screams out for mocking comedic treatment)
On another front, I should think this ruling by its timing is positively a political gift from the Anti-Abortion fanatics to the Democrats rather showing all legal risk factors like indeed contraception are in play.
@Beth: One hardly needs to be a woman to see this, but indeed having some legal background meme sans being lawyer…. rather the jaw dropping decision and not something to waive away as narrow.
I read an opinion piece the other day wherein the author asked if an IVF Facility was on fire would public safety personnel be required to save the ‘children’?
Justice Alito, with Dobbs, wanted to lay a groundwork with decisions that point toward obliterating the separation between religion and state. Pass it down to the states. Well, Alabama and Texas got the message. All the while Christian conservatives are working to federalize bans on reproductive rights and contraception.
@Lounsbury:..As indeed, the legal party is not your nose (except pehraps in the future in Alabama… although leaving aside the utter grotesqueness of the real world consequences, the comedic factor here is in the abstract amusing, this positively screams out for mocking comedic treatment)
You asked for it…
If you’re going to say that fertilized embryos are children, you suddenly need to specify who their legal guardian is, what their inheritance rights are, what their parents’ fiduciary and educational responsibilities are… If the parents get hit by a bus tomorrow, do all of the embryos inherit equally?
It’s things like this that make me think the US is on its last legs. We managed to keep ourselves on top in spite of having been founded as a country of religious lunatics because there were sufficient hard-headed merchants and Founding Fathers who understood the Enlightenment and how things actually work. The New England heritage emphasized self-control, reasonableness, the importance of education, and science and technology. Then when WWII happened we got another influx of intellectual capacity with the large number of people fleeing the Nazis.
But we’ve been eating our seed corn more and more and pandering to those who want to remake the U.S. in a totally Christianist fashion. At some point we’re going to start seeing Americans leaving the U.S. for refuge elsewhere. As a pagan, I suspect that I will need to consider this. If Donald Trump gets reelected, I definitely will be considering this.
This demonstrates clearly the weakness of the modern Republican mind, the certainty that is must be black or white, 100% logical, a fully realized human life or not, regardless of any other context.
But I ache for the couple; this significantly hurt their chances for a wanted child. Damages are warranted and I hope they can use those funds for another round of IVF (which this ruling actually goes directly against).
There’s something about Alabama judges, it seems:
Alabama’s chief judge order to remove ten commandments monument in the courthouse
That judge was Roy Moore.
Apparently the Alabama Supreme Court loves to thumb its nose at the First Amendment. It all seems part and parcel of some strange inferiority complex.
So, I’m reading through this and this is not a narrow ruling in the least.
Miscarriages are no illegal in Alabama. Good luck women.
Look at this fucking footnote that comes right after that quote.
They say right out in the opinion that not only are there NO exceptions and that they CANNOT create one, they then use a footnote to create one. If I was a judge in Alabama, I would read the NO EXCEPTIONS part and hold that whomever removed an ectopic pregnancy was liable under the act. No exceptions means no exceptions.
I took a quick scroll through the concurrences. Dr. I’m afraid to say that the concurrences all suggest that while they are in agreement with the ruling, they acknowledge that it is not limited at all. Some of them think that’s a problem.
Aren’t we all someone’s extrauterine children?
God is an undifferentiated blob of cells.
@Beth: I would assume that they are hinging the “exception” on the term “wrongful”, and that since killing the child is the only way to treat an ectopic pregnancy, it is not wrongful and therefore not an exception.
I’m not a lawyer, but that seems like where there would be the most wiggle room. “Wrongful death” implies a category of “Non-wrongful death”
The definition of wrongful may also be tied into property rights over the children, informed and explicit consent of the parents, etc.
@Gustopher:
It’s worse than that. Under this opinion, ectopic pregnancies are both “Alive” and “Children” for the purposes of the AL Wrongful Death Act. Then it goes on to say, well, handwave away, that just because they are alive children, you can’t prove that anyone “breached a duty” or “caused” the child to die.
So having read the main opinion, it’s fairly short and uses a lot of small words, and skimmed through the concurrences and dissent, I think this is one of the most radical opinions ever. This is fetal personhood. This opinion is a roadmap for abusers and anyone who wants to harass and demean pregnant people. A very easy argument can be made that any pregnant person who fails to deliver an intact baby is liable for the death of that “child”. Doesn’t matter if it’s a plain old miscarriage. A pregnant person now has an absolute duty to deliver a healthy child or face consequences. This opinion is going to cause enormous misery in Alabama.
And so it begins….
Fearing prosecution, UAB pauses in vitro fertilization after Alabama embryo court ruling
@Michael Reynolds:
And you could legally drive in the high occupancy vehicle lanes!
Wasn’t it the odious Matt Walsh* who made the “documentary” film “What is a woman”? Alabama has answered the question. A woman is a birthing receptacle.
*it should be mandatory to have a qualifier like odious in front of Matt Walsh’s name
Unless the contract says otherwise, it sounds like the eggs were destroyed due to neglect. The owners of the eggs are due some compensation. However I see no need to declare the eggs have full rights to personhood. It does read like a broad ruling. Beth notes the exception after they said there are no exceptions. In that vein it should be noted that the unattended ectopic pregnancy is not 100% fatal, it’s only 99.99% fatal as some do survive to birth. The fact that for the 99.99% who do die its a painful, brutal death can be safely ignored, especially by male jurists. After all, women ate the apple first and God said “”I will greatly increase your pains in childbearing;
with pain you will give birth to children” (Gen 3.16)”
Steve
@steve: Given that citation, then epidurals will soon be outlawed.
The overall message to women seems clear – the only right you have is the right to remain silent, and we suggest you use it.
@Beth: there’s a hilarious article over at Above the Law pointing out how Alabama has just wrecked havoc with the Rule Against Perpetuities.
@Grumpy realist:
I’ll check that out. I was thinking they might have just knocked up the Fertile Octogenarian.
For everyone else:
https://abovethelaw.com/2024/02/alabama-declares-frozen-embryos-are-children-creating-nightmare-rule-against-perpetuities-hypo/
@Scott:
I’ve read histories of science and medicine, claiming that line was used in the early days of anesthesia in the XIX century, as an argument to forbid its use in childbirth.
I haven’t checked out that matter, or similar claims against the use of lightning rods, but the histories say Queen Victoria helped end it by using chloroform for the birth of her eighth child. The queen did use it on that occasion.
@Beth: Having now read/skimmed the opinion, I note two things:
1. They define a child as “genetically unique”, which means that it is open season for identical siblings, at least until you get to the last one.*
2. No one is holding that the destruction-of-embryos was not “wrongful”
I have no doubt that this ruling creates a legal minefield and will make it easier to harass women, but I’m still quite certain that, at least with ectopic pregnancies, the “wrongful” portion comes into play. And the various abortion laws, which (unless Alabama is extra special in its abortion restrictions) allege to create an exception for the life of the mother.
It’s bad all around, but the ectopic exception feels like a natural consequence rather than a a true exception carved out of nothing but practicality. In fact, that might be worse, because they are not setting any limits based on practicality. Women engaging in any behavior that might retroactively be viewed as “risky” are at risk of harassing lawsuits if they miscarry.
But still not a real exception! The definition of exception is important and sacrosanct! Ahem.
Anyway, the women of Alabama should all become lesbians to reduce their risk of pregnancy. It’s the most logical solution, especially when you consider how gross men are.
——
*: This comes up more often in proposals to ban cloning, where proposed legislation would frequently criminalize having twins, but it’s nice to see it popping up here.
@Kathy: How do lightning rods help with childbirth?
I think I am missing context for the reference, and don’t know whether I have missed something or it just was never there.
@Gustopher:
The Greek solution Lysistrata comes to mind.
What’s the logical next step? That every woman who has a menstrual period be prosecuted for failure to conceive?
As soon as Trump is anointed as the candidate I would hope that abortion becomes front and center as an issue for the election. Point out how extreme some of the state laws are, and make sure women know what the Republicans have in store for them. I think the ads would almost write themselves.
@Gustopher: the trouble with those “life of the mother” exceptions, as we are already seeing, is that there,s no consensus as to how close to death a woman has to be before the exception kicks in. Does the woman have to get a judicial opinion before she’s allowed to be rescued? What happens if the hospital is terrified of being accused of not having proved that the woman was sufficiently near death?
Also, there a lot of medical circumstances where letting the pregnancy continue will result in irreversible damage to the woman, even if she isn’t near death…yet. The same way that you’re not going to get treatment at the emergency room for your cancer.
@Gustopher:
I think he desperately wanted to say that each child has a soul upon conception, but figured that overtly religious stuff couldn’t be in the main opinion. Have to hide it a bit.
That’s one of the stupid parts of this. I haven’t read the briefs, but the main opinion keeps saying that all parties agree that they are alive. If the lawyers actually argued that they should be kicked in the ass. I would have argued that they aren’t covered by the statute because they aren’t alive. They are property, covered by property laws, and if the patients waived away those rights, too bad. I haven’t looked at who the plaintiff’s attorneys were, but I wonder if they are ADF fuckers.
There was absolutely ZERO reason for the AL Supreme Court to reach this decision other than they actively wanted to.
I’m not going to go digging for it now, but there are right wingers who believe that there is no such thing as ectopic pregnancies. They think that you can just pop those lil buns back in the oven and easy bake ’em. There is also the part of the main opinion that claims that it’s possible to fertilize an embryo and have it grow to term outside of a person. There is no reason to believe that they wouldn’t find that a woman with a miscarriage or ectopic pregnancy didn’t do more to save the “child” and should be held liable. I shouldn’t say woman. Like it’s going to be a white woman or a rich woman. Let’s be honest here. It’ll be a poor black woman.
@Grumpy realist:
My dad was an attorney; I remember him saying, “The purpose of vague language in a document is to allow the writers to interpret it any way they choose to.”
@Beth:
Another question: In the state of Alabama, where abortion is banned and the only allowable exception is danger to the life of the mother, if a couple had a fertilized egg stored and then declined to use it, wouldn’t that have now become prosecutable as the crime of abortion?
@dazedandconfused:
Or child abandonment.
@Gustopher:
I meant there were also religion-based tirades against the use of lightning rods.
@Beth:
I’ve vague recollection of a law in Ohio, before the execrable Dobbs decision, that directed doctors to fix ectopic pregnancies rather than end them, on pain of criminal charges for abortion murder.
I don’t think it passed. I think it involved things other than ectopic pregnancies, but they were definitely mentioned in the piece I read about it.
So, yeah, they may definitely think it’s not real, or can be fixed, etc. it would fit with the idiot candidate who claimed a woman can’t be made pregnant by a rape, or that vaccines have microchips, or that ivermectin cures the trump disease, or that Lardass is smart.
@CSK: Well, duh, they have to be punished somehow for denying incels’ right to sex.
/sarcasm off
@Beth:
You might be wrong about that.
Given that this is opening the door to civil wrongful death suits for miscarriages, rather than criminal prosecution, the party “harmed” would be the father, and I’m betting it’s going to be angry, awful, middle-class white men who have the inclination and the money to harass with lawyers.
And that these particular white men are going to be the type to be against race mixing. They might not be tikki torch carrying racists, but not into race mixing. Like a 4-6 out of 10 on racism, and a 8-10 on misogyny.
It’s going to be white women who are the target. Particularly white women who are trying to avoid entanglements with abusive ex boyfriends. Abusive ex boyfriends with a friend who will photograph the woman (“that slut”) at a restaurant or bar or gym or whatever and send it to the ex boyfriend to use as evidence.
Maybe I’m falling into racist stereotypes (I am very white), but as a general rule I just don’t see Black men (even the worst Black men, as we are really only discussing the worst men) having the money and the inclination to get involved in legal processes.
@CSK: Make of this what you will, but a young woman I went to university with agreed to become pregnant as a condition for becoming married to a young man belonging to a sect claiming that it is wrong to permit infertile people to marry.
@dazedandconfused:
@Beth: Um… Yes to both?
Crazy implications but logical considering their previous rulings about the legal status of embryos.
Since it was a ruling on a state law – and a very old state law – the legislature can easily fix the issues raised, should they choose to do so, by changing the relevant state law or passing a new law that specifically addresses IVF and defines various responsibilities and potential penalties.
@just nutha:
But suppose you find out you’re infertile only after you’re married?
@Andy:
I would laugh if that weren’t so very unfunny at the moment.
@CSK: That’s why she had to be pregnant before the wedding could happen. For what it’s worth, I ran into her a few years later and she reported that marriage and family were doing fine. I wish for her a good life.
@Andy:
Given that we’re talking about Alabama, I wouldn’t hold my breath waiting for said easy fix to happen.
I remember when the first “test tube babies” became a real posibility there was discussion about ethical issues, including religious aspects. At the time, I said, “yeah, medical technology is going to force us to confront lots of ethical issues we keep kicking down the road.” Since then, I have had grandchildren, the first via IVF. Practically, the medical people picked the embryo they judged most likely to thrive for implantation. Also practically, my daughter chose to implant only one because she did not want twins or triplets. Every new technology introduces choices we have to make, and there are ethical questions associated with these choices. My understanding, for example, is that multiple IVF embyos are customarily implanted because a large percentage do not survive. Does that mean we are unethically exposing them to risks they did not choose? It does not take a lot of creativity to come up with ethical pardoxes that can stop us in our tracks. What about creating an embryo the old fashioned way, and it fails to implant or miscarries? Is that failure somebody’s fault?
@James Joyner: At some point, James, you are going to accept that you shouldn’t share your gut-level opinions about lawsuits without making sure you actually understand what the f*ck you are opining on.
You not only don’t understand the impact of the opinion (Beth is correct that it isn’t narrow) but you don’t understand the procedural posture. The plaintiffs deliberately didn’t sue for damages under any number of statutes they could have easily won damages with. They chose this approach that would require this ruling for them to prevail.
Someone on Threads today speculated that we might see actual Handmaid’s Tale variations: female prisoners, implanted with abandoned embryos, forced to carry them to term for infertile couples who want to adopt.
He didn’t say they were citizens so there’s a pretty big problem right off the bat. From conception to birth you are now legally stateless according to Alabama. If personhood begins at conception but citizenship is at birth, then they’ve just essentially criminalized pregnancy by having women knowingly harbor undeclared stateless beings/ illegal immigrants for 9 months and made them human traffickers by default. This is not a “narrow ruling” but a direct conflict with federal and constitutional statues aka a huge $^#*$^(* mess.
The whole point of personhood is human beings have rights – for the forced-birthers, those rights manifest to prevent abortion. However, being human grants you other rights that can’t be ignored and being classified as a minor in the US regardless of citizenship grants you others. Birth conveys rights for a REASON; it’s a measurable and clearly visible step to use as a starting point for legal existence. If you declare someone has rights before the legal starting point where most rights automatically begin, you’ve created either a second class of sub-human beings or you’ve declared them outlaws in the traditional sense with no protection. Statelessness would be their natural legal default state of being and make the mothers criminals for housing and transporting them (even walking around would count!). They would not have entered the country legally as the definitions so far require either physical entry to US jurisdictions or birth so they’re illegal aliens as well under federal law. You would have to prove conception location and ain’t that gonna be fun; if you were conceived on vacation in FL but born in TX, what state issues the BC and SS?
An entire state’s worth of beings that have not reached birth as of today were tossed into legal limbo as well as their families, all so one idiot could get his theocrat on.
@KM:
Speaking of theocrats…
Not to worry, because Justice Alito anticipated all of this with his Dobbs decision.
The Supreme Court is ready to deal with all the reproductive rights cases that will be flooding the Court docket over the next few years.
In other news, it was reported yesterday that the average body temperature in our (newly) most populous state, Alabama, has dropped to -300F.
@SKI:n
Nowhere do I claim that the impact is narrow. Indeed, I make it clear that it almost certainly isn’t. I simply say that, in the incredibly narrow space of the dispute here, it seems reasonable to me that the plaintiffs should be allowed to recover damages from the defendants.
That’s quite possible. I’m merely reacting to the linked news report and the opinion itself.
@Grumpy realist: Especially when the judiciary punts it back to the doctors and then threatens the doctors with felony charges…
A. I’ve always had problems with the “unborn child” homicide laws you have down there for this exact reason.
B. The court could have found liability and damages on any number of other grounds. They chose this pedestal to stand on.
C. There is a direct line from this judgment to forced implantation of frozen embryos. If they aren’t implanted, this decision implies they are being murdered. Or held in permanent frozen “Demolition Man” prisons.