Former Alabama Supreme Court Justice Jay Mitchell has come under scathing attack – nearly all of it financed by out-of-state groups – for authoring a Court opinion upholding the rights of babies conceived through in vitro fertilization (IVF).
IVF is the conception and development of babies outside the womb, often involving the creation of multiple embryos. In many instances, IVF enables otherwise childless couples to have children. But often, the unchosen embryos are frozen, stored, and sometimes intentionally or unintentionally destroyed.
Some believe IVF is a dangerous field, both ethically and scientifically, and society is not yet (if ever) ready to tread upon this field. I agree, but those embryos that are not chosen are persons, too, and their lives are entitled to legal protection.
That was the essence of Mitchell’s ruling in LePage v. Center for Reproductive Medicine (2024). Nothing that the U.S. Supreme Court had held in Dobbs v. Jackson Women’s Health Organization (2022) that abortion is not a constitutional right (overruling Roe v. Wade), and noting further that both the Alabama Constitution and a 2019 Alabama statute provide legal protection to the life of the preborn child from conception, Mitchell noted that neither the Alabama Constitution nor the Alabama statute make any exceptions for children conceived or nurtured outside the womb. Embryos outside the womb are just as fully human persons as embryos inside the womb.
Frankly, I see no way anyone could have read the Alabama Human Life Protection Act any other way. But it took a courageous Justice to say so, and Mitchell proved that day that he had that kind of courage.
Caving to pressure from hospitals and clinics, the Alabama Legislature responded to the opinion by passing SB159 which protects clinics from liability for the destruction of frozen embryos. I question whether SB159 is constitutional; it seems to violate the IVF child’s right to life as secured by the Alabama State Abortion Policy Amendment of 2018. Some may applaud this legislation, but I suspect frozen embryos would not.
Because of this, I applaud Mitchell for the clarity of his opinion and for his courage in writing it.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy, as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He lives in rural Pike Road, Ala., and may be contacted for speaking engagements at [email protected].
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 [email protected].
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