America is marching toward theocracy one zygote at a time

The only thing more outrageous than vesting the contents of a petri dish with legal rights is the Alabama Supreme Court’s use of religion to get there.

Two thirds of Americans oppose Alabama’s ruling that frozen embryos are children entitled to legal protection, but the ruling is entirely consistent with Republicans’ position that life begins at conception.

It also duly followed the contours of the 2022 Dobbs mandate, under which the Supreme Court’s religious bloc subordinated women’s legal rights to those of unborn fetuses.

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Although many Republicans are now scrambling to distance themselves from Alabama’s unpopular ruling, it is the direct result of Donald Trump and Mitch McConnell packing SCOTUS with religious zealots who dismantled more than 50 years of abortion access, who are seeking to erode the separation of church and state at the same time.

How we got here

Plaintiffs in the Alabama case were couples seeking in vitro fertilization. They sued for negligence and wrongful death after someone wandered into an unlocked cryogenic lab, picked up a vial containing their frozen embryos, injured his hand from the subzero temperatures and dropped the vial, spilling the embryos onto the floor.

The zygotes, one-tenth of a millimeter in size, about the thickness of a regular sheet of paper, came from a lab. They never saw the inside of a uterus. But the Alabama Court ruled that they were “killed” and entitled to wrongful death protection.

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Exercising the same religious hubris displayed by the Dobbs majority, Alabama’s high court assigned legal “personhood” rights to zygotes, saying their location was irrelevant. In Alabama — and across the United States, if Speaker Mike Johnson and Republicans get their way — a fertilized egg now has more legal protection than women. They are entitled to protection whether curated in a cryogenic lab or floating in a petri dish.

Destroying the wall between church and state

The 1st Amendment’s Establishment clause prohibits the government from making any law “respecting an establishment of religion,” which means courts cannot prefer religion over non-religion.

Apparently not constrained by something so trivial as the 1st Amendment, Alabama’s Chief Justice Tom Parker used the IVF case to elevate his religious convictions into a defined set of public policy goals. Parker dedicated more than half of his “special concurring” opinion of 22 full pages to expound on his own religious beliefs.

Under the guise of legal analysis, Parker wove biblical quotes, the Ten Commandments, the Book of Genesis and 16th century commentary into his concurring opinion to postulate on “the significance of man’s creation in God’s image.” He delivered these gems (among many others):

Life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself;

The “sanctity of life” means 1. holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred;

Man’s creation in God’s image is the basis of the general prohibition on the intentional taking of human life. (Never mind the government’s compelling, secular interest in outlawing murder.)

Given the force of Parker’s self-evident religious truths to protect the sanctity of zygotes in a petri dish, he must carve out an exception for death penalty cases.

Alabama’s death penalty brokers no argument about the “sanctity of life in God’s image,” but instead gets creative when it comes to strapping a condemned man onto a gurney to asphyxiate, poison or electrocute him.

Alabama most recently put a defendant to death using nitrogen hypoxia, the first in the nation.

After forcing 58-year-old Kenneth Eugene Smith to inhale pure nitrogen through a mask until he suffocated, his restrained throes violent enough to shake the gurney beneath him for two full minutes, Alabama’s Attorney General Steve Marshall bragged about the execution and offered to teach the method to other (Republican-ruled) states.

Some sanctity of life.

Forgive him Father, he knows not what he’s done

Chief Justice Parker is entitled to his cherry-picked religious drivel, but he is not entitled to amplify his beliefs using a government platform.

When any judge resorts to quoting scripture or the Ten Commandments to explain his interpretation of the law, he reveals his own ignorance about American history as well as the foundational underpinnings of the U.S. Constitution.

Parker is obviously oblivious to the historical realities that drove Revolutionary War heroes to risk their lives, families and fortunes to cast off a brutal monarchy that also controlled the Church of England. Over half a million men from just 13 young colonies gave their lives for the right to compose their own governing treatise, arguably the most brilliant ever written. Writing and debating the 1st Amendment, the framers of the U.S. Constitution took great pains to separate religion from government, having experienced first-hand the brutalities and gross injustice made possible when they are joined.

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The words God, Jesus and Christianity, though commonly used in parlance of the day, were deliberately omitted from the Constitution. Instead, honoring the Jeffersonian wall between church and state, the founding fathers adopted as their very first directive, in the very first sentence of the very First Amendment, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

Not only did the Establishment Clause of the 1st Amendment reflect a preternatural understanding of human power struggles throughout history, it has steadied the United States through tumultuous centuries, each decade vexed with a new danger. As America’s number one foundational guidepost, the 1st Amendment is too crucial and too precious to let fact-challenged Trump judges and Christian Nationalists destroy it.

(Judge Parker, if this finds its way to your eyes through divine intervention, your legal malfeasance and arrogance inspire the Luke 23:34 prayer, “Forgive him, Father, he knows not what he’s done.”)

The Alabama Court helped itself to Dobbs’ unequal protection

Aside from religious fanaticism, the only legally interesting aspect of Alabama’s ruling is the extent to which the court — without irony — relied on the 14th Amendment’s Equal Protection Clause to conclude that zygotes could not be discriminated against.

A fertilized human egg, the Court reasoned, is entitled to the same legal protections regardless of how or where it was fertilized, or how or where it is stored.

The irony is that the court understood Equal Protection principles enough to protect all zygotes equally, if absurdly, but not enough to protect women. It’s objectively obvious that state-forced birth under Dobbs metes out differing (e.g., unequal) legal status and protection depending on a person’s sex.

If Republicans weren’t motivated by gender animus, but truly sought to eliminate abortion, they would have mandated age-appropriate vasectomies for men — safe, quick, cheap, pain free and medically reversible — years ago.

But rather than mandating a risk-free, reversible procedure for men to eliminate abortion, Republicans instead are forcing women to undergo nine months of pregnancy with potentially fatal consequences, extended physical confinement, permanent changes to their bodies, reduced earning capacity and hours of bone-crushing labor pain to give birth against their will.

Republican judges and legislators pushing fetal personhood have decided that a hypothetical human — a fertilized egg — is entitled to more legal protections than a living, breathing one. In a gross perversion of Equal Protection, they’ve determined that women should bear the life-altering consequences of having sex, but not men.

Republicans are rushing to distance themselves

The only silver lining in Alabama’s ruling, if there is one, is watching Republican candidates disassemble en masse, rushing to distance themselves from the ruling and its political fallout.

Although Trump often brags about overturning Roe v. Wade, he is the chief dissembler, declaring in response to Alabama's ruling, “I strongly support the availability of IVF for couples who are trying to have a precious baby.”

House Speaker Mike Johnson called IVF “a blessing for many moms and dads who have struggled with fertility.” Johnson failed to mention that he also cosponsored H.R. 1011, the “Life at Conception Act” to declare that life begins at the moment of fertilization.

The Republican message that life begins at conception has been entirely consistent, which complicates their RNC — orchestrated reaction to Alabama.

Apparently, God wants Republicans to protect zygotes until the Republican National Committee tells them not to, because zygotes aren’t politically popular.

The broader dangers of infusing judicial opinions with religion may be an intellectual bridge too far for Republicans to cross, despite the searing clarity of Jefferson’s roadmap.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack is free.