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In a stunningly bad decision, the Alabama Supreme Court has held that frozen embryos in a lab count as children for the purposes of the state’s wrongful death law. It would take some time to enumerate everything that’s wrong with the holding. To name just a few of the most obvious problems, it’s an exercise in judicial activism; it ignores the original meaning of the 1872 statute in question (which obviously didn’t anticipate modern reproductive technology); it’s disastrous for IVF in the state; and it’s a stunning indication of the crazy things that are already happening in state courts since the U.S. Supreme Court’s Dobbs v. Jackson decision, which reversed Roe v. Wade. But in the Alabama case, LePage v. Center for Reproductive Medicine, one concurring opinion stands out as especially shocking, even compared to the holding itself. That concurrence, by elected Alabama Chief Justice Tom Parker, argued that Alabama law must be interpreted in light of Christian theology. He cites not only the Bible, but 13th century friar Thomas Aquinas and several 16th and 17th century Protestant theologians. In my 30 years studying the constitutional relationship between church and state, I can’t recall any legal opinion that more […]