MONTGOMERY – The Alabama Supreme Court on Friday denied a rehearing request by the Mobile Infirmary Clinic in a wrongful death in-vitro fertilization (IVF) lawsuit that received national attention in February.

An embryo created through IVF is a child protected by Alabama’s wrongful death act and the Alabama Constitution, the Alabama Supreme ruled in February. 

In a case originating from Mobile, LePage v. Mobile Infirmary Clinic, Inc., the Supreme Court held in a 7-2 decision that parents of frozen embryos killed at an IVF clinic when an intruder tampered with an IVF freezer may proceed with a wrongful death lawsuit against the clinic for alleged negligence. 

The Court also held that the Alabama Constitution's Sanctity of Life Amendment, ratified by Alabama voters and made law in 2018, would require the Court to interpret the law in favor of protecting the unborn. Alabama’s Sanctity of Life Amendment declares in the state Constitution that it is “the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

Alabama Supreme Court Associate Justice Jay Mitchell wrote the majority’s opinion in February and said, “This Court has long held that unborn children are 'children' for purposes of Alabama's Wrongful Death of a Minor Act.”

“Finally, the 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,” he added. “While we appreciate the defendants' concerns, these types of policy-focused 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.'"

Defendants in the case filed an application for the Alabama Supreme Court to rehear the case in March but were overruled by the court in another 7-2 decision on Friday. The majority overruling the rehearing application didn’t submit an opinion. Supreme Court Associate Justices Greg Cook and Will Sellers dissented.

“While many of our opinions have unintended consequences, oftentimes such consequences nevertheless are foreseeable because our decisions impact others who, although they were not parties to the case, were generally aware of the potential repercussions of a reasonable decision,” Sellers said in his dissent on the rehearing decision. “In this case, our decision was a surprise, if not a shock, to our citizens. The majority opinion on original submission had significant and sweeping implications for individuals who were entirely unassociated with the parties in the case. Many of those individuals had no reason to believe that a legal and routine medical procedure would be delayed, much less denied, as a result of this Court's opinion. Because those individuals never had an opportunity to submit briefs in this case to explain their positions and the law supporting them, they now have a new regime that has been forced upon them for which they had neither input, nor redress, nor a hearing.”

He continued, “The majority opinion on original submission also addressed issues and arguments that were never raised in the parties' initial briefs and never argued by the parties. It is for these reasons that I would have granted the request to conduct oral argument on the applications for rehearing, including providing the various amici curiae an opportunity to voice their concerns, to explain the legal bases of their positions, and to highlight the various loose ends left dangling by this Court's opinion. In light of the foregoing, and consistent with my special writing on original submission, I respectfully dissent from the denial of the applications for rehearing, especially the denial of oral argument on rehearing.”

In March, the legislature and Gov. Kay Ivey passed legislation into law providing civil and criminal immunity to IVF clinics for death or damage to embryos in response to the Alabama Supreme Court’s ruling. 

David Wirtes Jr., an attorney representing the plaintiffs, opposed the application for rehearing.

"This Court is not a super-legislature – it is an appellate court charged with reviewing for error rulings of lower inferior courts. Those behind the legislative and media frenzies lost sight of this Court’s proper role in the administration of civil justice. The vitriolic attacks on the Justices have no place and must be disregarded. The Court performed as required by settled law. Nothing more could be asked of the Court, and nothing less should be expected of it," Wirtes said in a March filing.

LePages, Et Als., Opposition to Application for Rehearing With Exhibits March 07, 2024 by Caleb Taylor on Scribd

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