Opinion: Persecuting the pregnant and the would-be pregnant

FILE - Alabama Supreme Court Justice Tom Parker speaks on the steps of the state judicial building on April 5, 2006, in Montgomery, Ala. When the court ruled that frozen embryos are children, its Chief Justice Parker made explicit use of Christian theology to justify the court's decision in his concurrence, where his language echoed the broader anti-abortion movement. (AP Photo/Jamie Martin, File)

FILE - Alabama Supreme Court Justice Tom Parker speaks on the steps of the state judicial building on April 5, 2006, in Montgomery, Ala. When the court ruled that frozen embryos are children, its Chief Justice Parker made explicit use of Christian theology to justify the court's decision in his concurrence, where his language echoed the broader anti-abortion movement. (AP Photo/Jamie Martin, File) Jamie Martin

By JONATHAN P. BAIRD

Published: 03-17-2024 12:00 PM

Jonathan P. Baird lives in Wilmot.

Up until the recent Alabama Supreme Court decision, the concept of extrauterine children was foreign to me. It is a hard concept to wrap your head around. I hadn’t seriously considered the idea that frozen embryos were children. However people spin it, there is a big difference between a zygote or a small cluster of cells and a live person.

The Court argued that from the moment of conception, a fertilized egg has the same rights as a born human. Such a conclusion, supporting fetal personhood, is grounded in the most profound sexism and disregard for women and their rights. There is no equivalence.

The Court decision has caused massive confusion and chaos as it threw a monkey wrench into all assisted-reproductive treatments in Alabama. The Court effectively side-lined in vitro fertilization or IVF. Doctors remained uncertain if they could face severe criminal penalties for “wrongful death” if they continued a practice previously lauded.

Many would-be parents who had heavily invested in IVF treatment were left high and dry, not knowing if their treatments would continue. It appeared the Court had no idea how IVF works. Roughly half of fertilized eggs don’t naturally implant and are flushed out. Is that murder? Please.

IVF is about helping couples succeed at having a child. It is a complicated series of procedures designed to give a woman the best chance to get pregnant. IVF has helped many couples experiencing a range of infertility issues.

The irony is that the pro-life movement is roadblocking and potentially prosecuting parents who want to have kids. IVF procedures typically require more than one embryo zygote. Embryos are commonly destroyed to get one successfully fertilized and implanted.

Fetal personhood conflicts with and diminishes the reproductive rights of pregnant women. The Court is elevating the rights of a zygote over grown adults. Even worse, it criminalizes women for exercising their reproductive rights and making their own decisions. You have male jurists imposing patriarchal control over women.

Article continues after...

Yesterday's Most Read Articles

A look at the Alabama decision quickly shows that its rationale is not in law, it is in the Bible. In his opinion, Alabama Chief Justice Tom Parker cited the books of Genesis, Exodus and Jeremiah. This is a judge who apparently believes the United States is a theocracy. The Bible is his basis for defining frozen embryos as people.

But we are not a theocracy. We have a separation of church and state written in the First Amendment. That amendment states, in part, “Congress shall make no law respecting an establishment of religion...” The Alabama Chief Justice is imposing his religion on the rest of us.

Robert Reich compared the Alabama IVF court case to the Scopes monkey trial in 1925. In that case, the state of Tennessee made it illegal to teach human evolution in Tennessee schools. The judge in Scopes also quotes the book of Genesis at the outset of the trial just like Chief Justice Parker in Alabama.

It took until 1968 for the U.S. Supreme Court to clarify the issues raised in Scopes. The Court in Epperson v Arkansas ruled that government in our democracy must be neutral on matters of religious theory. Because the primary purpose of the Arkansas anti-teaching of evolution law was religious, it contravened the Establishment Clause of the First Amendment.

The Alabama Chief Justice’s opinion is a tip-off that far more is going on than simple opposition to IVF treatment. The Christian right, of which Chief Justice Parker is a part, has been jet-propelled by Justice Samuel Alito’s Dobbs decision that overturned Roe v Wade. They have a broadly misogynistic and anti-gay agenda that has multiple prongs.

The agenda includes banning IVF as well as specific forms of birth control like the morning after pill and IUDs. They oppose all abortions without exception. They have the Mifepristone case at the Supreme Court. Additionally, they aim to reverse and outlaw same sex marriage and roll back LGBTQ rights. They hope to pass legislation to allow taxpayer money to fund private and religious schools, a project that has already had some success.

Where the Alabama case leads is towards mass criminalization of pregnant people. Pregnant women are facing prosecution on the pretext of protecting “unborn life.”

In her book “Policing the Womb,” Michele Goodwin thoroughly exposes the trend toward criminal punishment of pregnant women. Every pregnancy becomes a potential crime. Penalties include criminal and civil incarceration for miscarriage and stillbirth, as well as punishments for behaviors perceived to threaten fetal health. Witness the recent case of Brittany Watts of Ohio. She was prosecuted for “abuse of a corpse” after a miscarriage. Fortunately, the grand jury did not indict.

The hypocrisy of the Christian right could not be more extreme. The concern for life ends when the fetus is born. The states with the strictest abortion laws do the least when it comes to maternal mortality, child wellness, food security and access to affordable health care.

Republicans were so freaked out about the possible political consequences of the Alabama Supreme Court decision that they promoted and approved a bill providing civil and criminal immunity for IVF providers and recipients. The Alabama legislature skirted the matter of fetal personhood. No way will Christian right extremists accept what the Alabama legislature did.

We can expect more lawsuits against IVF as many anti-abortion Republicans want more restrictions on IVF treatments such as having a process for dealing with embryos once households achieve their family goals. These Republicans believe a frozen embryo represents a life.

The Alabama case is not over. It has just begun. In this election year, Democrats and all who support women’s reproductive rights must make Republicans own their anti-IVF position.