In "Federalist No. 78," Alexander Hamilton wrote that the judiciary is the “least dangerous” branch of government. The legislature exercises WILL, determining the policy of the nation. The Executive exercises FORCE, carrying out the legislature’s policies. The judiciary only exercises JUDGMENT, interpreting the Constitution and statutes.
So long as the judiciary adheres to its traditional roles, interpreting the Constitution strictly as written and intended by its Framers, it is the least dangerous branch.
But when courts ignore the Framers’ intent and twist the Constitution by creating new “rights” the Framers never imagined, such as abortion and same-sex marriage, they usurp the role of the legislature and verge on judicial tyranny. Constitutional law then becomes, as Professor Lino Graglia warned, “a fraud, a cover for a system of government by the majority vote of a nine-person committee of lawyers, unelected and holding office for life.”
By many accounts, the Alabama Supreme Court, by its recent Aysenne v. Center for Reproductive Medicine decision, has transformed itself into a theocratic autocracy. They have created a right to life for embryos conceived in vitro out of thin air, many claim, effectively shutting down the practice of in vitro fertilization and thereby depriving countless would-be parents of the opportunity to have families.
In fact, the Alabama Supreme Court has faithfully followed the Alabama Constitution. In 2018, with 59% of the vote, the people of Alabama adopted the Sanctity of Life Amendment, which reads:
(a) This state acknowledges, declares, and affirms 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.
(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.
(c) Nothing in this constitution secures or protects a right to abortion or requires the funding of abortion.
In keeping with this amendment, the following year (2019), the Alabama Legislature passed, and the governor signed into law, one of the strongest abortion laws in the nation.
Protecting unborn human persons, the Sanctity of Life Amendment makes no exceptions for children conceived in vitro. Children conceived in vitro are therefore “unborn children,” entitled to “the rights of unborn children, including the right to life.” Further, the Amendment establishes that Alabama’s public policy seeks to “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”
The Alabama Supreme Court therefore acted with judicial restraint and followed the doctrine of strict construction, interpreting the Alabama Constitution as written. Any other interpretation would have constituted judicial activism, twisting the Constitution to mean something it doesn’t say.
The case arose out of a lawsuit alleging that an Alabama clinic negligently allowed the destruction of frozen embryos. Ruling that these frozen embryos were unborn children under the Alabama Constitution, the Alabama Supreme Court sent the case back to the trial court for further adjudication. Fearing that they could be held liable for discarded frozen embryos, the University of Alabama at Birmingham Hospital suspended its in vitro program, and several other hospitals followed suit.
This prompted the Alabama Legislature to take action to save the process of in vitro fertilization. One legislator proposed a bill that would have defined the term “unborn children” so as not to include those conceived in vitro, but others objected that this bill would be unconstitutional because it contradicted the Alabama Constitution which contains no such exception.
Instead, the legislature passed SB159, which the governor then signed into law. This bill does not dispute the court’s finding that frozen embryos are human persons, but it exempts IVF providers from liability for the destruction of frozen embryos. Now that SB159 is law, many IVF providers are back in business.
Alabama House Speaker Nathaniel Ledbetter says “IVF is as pro-life as it gets.” I might be inclined to agree – unless I were a discarded frozen embryo.
I sympathize with would-be parents who cannot conceive a child, and I understand their hope that IVF can enable them to have the family they so desperately want. I share the concern of conservatives who fear the left will exploit the Aysenne decision to ignite a reaction similar to the backlash against Dobbs v. Jackson. And I would be less troubled if the bill provided immunity only for the unintentional destruction of frozen embryos, but it appears to protect the intentional destruction as well.
But IVF clinics commonly produce multiple frozen embryos so the would-be parents can select one to be their child, while the others are either consigned to labs or discarded. But if the Alabama Constitution is correct – and I believe it is – these frozen embryos are human persons, and they have a right to live. Can we justify a practice that allows the killing of multiple unborn children so that parents can fulfill their dreams of raising families?
As medical science advances, the moral dilemma will become more difficult. At present, a frozen embryo can develop into a full-term baby only if it is implanted in a woman’s womb. But that will likely change.
Medical science is working on the development of artificial wombs, or possibly the wombs of animals such as sheep. Once medical science achieves ectogenesis (production of a baby outside the mother’s body), this frozen embryo may develop into a full-term baby, and then into a child and an adult, without ever being implanted in a mother’s womb. Can we doubt that such a person is a human being?
If we grant that this adult person who was conceived in vitro and was never implanted in a womb and never born is nonetheless a human being, when did that person become human? The answer must be at fertilization, for at that point the child has all the DNA largely determining his sex, skin tone, hair color, and so much about the adult person that child will become. And if so, that child at fertilization has the God-given right to life that the Alabama Constitution recognizes, and that the Alabama Supreme Court has affirmed.
Maybe medical science will provide a solution to this dilemma. As Chief Justice Parker pointed out in his concurring opinion, some countries already limit the number of frozen embryos that can be produced. But while we recognize the joy of parents that their hopes for a child can finally be fulfilled, we must also remember that each frozen embryo produced in vitro is a human person whose life must be protected.
Are we really certain that God wants us to venture along these uncharted, trackless paths?
Let us proceed with caution.
Col. Eidsmoe is Professor of Constititonal Law for the Oak Brook College of Law & Government Policy (obcl.edu) and Senior Counsel for the Foundation for Moral Law (morallaw.org; 334/262-1245). He may be contacted for speaking engagements at eidsmoeja@juno.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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