Rekubit Exchange:Alabama justice invoked 'the wrath of a holy God' in IVF opinion. Is that allowed?

An Alabama Supreme Court's ruling has torn open a long-simmering and Rekubit Exchangeemotionally charged debate about whether some aspects of in vitro fertilization represent a form of abortion and should be banned under religious principles.

Christian opposition to abortion has long driven the debate over reproductive rights. Abortion opponents say life begins at conception, and even a handful of cells deserves the same legal protections as a person.

In his concurring opinion last week, Chief Justice Tom Parker, an elected Republican, invoked similar reasoning.

"In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human 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."

But legal scholars say invocating religion is an unusual step for a judge. And IVF advocates are concerned about injecting religion into what they see as a medical decision to have a family.

“The substance of the ruling is not a surprise at all. But the language he used, it’s completely out of bounds ‒ unusual to an extreme degree,” said Jennifer Hendricks, a law professor and family law expert at the University of Colorado Boulder.

IVF has faced religious opposition from some Christians

It all comes down to a small cluster cells.

On one side of the battle are millions of Americans who used in-vitro fertilization to have desperately wanted children who could otherwise not have been born.

On the other are Christian religious conservatives who argue humans should not be playing God in a laboratory, and that life begins at conception. The Catholic Church in particular opposes IVF, though some religions, including Buddhism and Hinduism, have no hesitations about the procedure.

Several Alabama facilities, including the provider that was sued in the initial case, announced this week that they are pausing their IVF programs.

Although the ruling itself affects only embryos in Alabama, word of the decision has spread quickly across the nation and already is reverberating in Washington. Opinions are highly polarized.

President Joe Biden weighed in with a statement Thursday saying voters should re-elect him if they wanted a different approach to reproductive rights. "The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable," he said.  Vice President Kamala Harris also slammed the court's decision, saying it sets a dangerous precedent for "robbing women of the freedom to decide when and how to build a family."

But Republican presidential candidate Nikki Haley said she agrees with the court's contention that frozen embryos created through IVF are children. “Embryos, to me, are babies,” Haley told NBC News. “That's a life."

Ruling again pits theology against reproductive rights

Some conservative states have passed laws specifying that life begins at conception, and the Alabama court leaned heavily on Christian faith and the Bible to make its case. The court referred to the embryos as "embryonic children ... kept alive in a cryogenic nursery."

Rachel Laser, president and CEO of Washington D.C.-based nonprofit Americans United for Separation of Church and State, said citing the Bible in this manner is like “giving the middle finger to a foundational promise of our country.”

Alabama’s top court ruling on IVF is part of a larger movement to “impose religious theology," Laser said, in conflict with the constitutional promise of separating church and state. She saw the verdict in Alabama as part of a larger Christian nationalist movement – the idea that America was created by and for Christians an its laws should reflect that.

“The agenda doesn’t stop with reproductive rights. It’s much, much bigger,” Laser said. “And that should concern every American, because America wouldn’t be America without the separation of church and state.”

Laser noted that moral arguments put forth by lawmakers and judges often impose a singular definition of morality on everyone, including people of other faiths and Christians who don’t align with the same set of values or believe they should be imposed by law.

Along with jeopardizing access to IVF and abortions, Laser said the ruling could affect access to contraception, as some forms work by blocking embryos from implanting in the uterus.

“That’s what could come next,” she said.

IVF was a polarizing issue from the start

In 1979, a year after the world's first IVF baby was born, a coalition of anti-abortion groups denounced the new technology as "morally abhorrent" and persuaded the federal government to block funding for any research in which embryos were destroyed. But the number of what were then referred to as "test tube" babies continued to rise as desperate families turned to IVF to conceive children. Today, about 2% of all babies born in the U.S. annually are conceived through IVF.

"Over the years, the anti-abortion movement gradually accepted some reproductive technologies, as long as no embryos were destroyed during their use," said Margaret Marsh, a historian and professor at Rutgers University. "But the peace it made with the new technologies was always an uneasy peace.”

Marsh co-wrote a 2019 history of IVF with her sister, a gynecologist.

Because IVF was developed after Roe became the law of the land in 1973, embryos have typically been treated as private property that donors could implant, give away or have destroyed without consequence. But newly passed "personhood" laws pushed by conservatives and some religious groups are changing that.

Nationally, about 100,000 births a year involve IVF, an emotionally and physically exhausting process by which multiple eggs are harvested, fertilized and implanted to bring about a pregnancy. In most cases, doctors create more embryos than are implanted, allowing patients to store those embryos in liquid nitrogen at -321 degrees for future use, donation or destruction.

In the IVF procedure, a three- to five-day-old fertilized egg, known as a blastocyst, is implanted in a woman's uterus. At this point it contains between 70 and 200 cells.

Those tiny clusters of cells can only develop inside a womb, and officials estimate there may be as many as 1 million frozen embryos stored nationwide.

IVF families have often struggled for years to get pregnant and undergoing expensive IVF treatment typically requires the administration of powerful fertility drugs and invasive medical procedures for the chance to have a baby. People turn to IVF for many reasons, including fertility loss after cancer treatments, or military members heading out on long-term deployments who want to delay having children.

Is it OK for a judge to invoke the Bible?

In a commentary attached to the Alabama ruling, Parker leaned heavily on the religious foundation of American laws, connecting them to longstanding Christian tenets such as the 10 Commandments' prohibition against murder. Parker noted that other countries have adopted IVF policies that reduce the number of unneeded embryos and suggested that IVF regulations in the United States are little better than "the Wild West."

"The Alabama Constitution's recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama," Parker wrote.

"All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence," he continued. "Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image."

The Catholic Church in 1987 issued an opinion setting out its opposition to IVF, arguing in part that it was immoral because it "does violence to human dignity and to the marriage act," by replacing the act of conception between a married couple with a procedure by a laboratory worker.

"Human beings bear the image and likeness of God. They are to be reverenced as sacred. Never are they to be used as a means to an end, not even to satisfy the deepest wishes of an infertile couple," the church said. "The marital act is not a manufacturing process, and children are not products."

Lael Weinberger, a nonresident fellow at Stanford Law School and attorney who previously clerked for U.S. Supreme Court Justice Neil Gorsuch, appointed by former President Donald Trump said the court's decision did not invoke religion and Parker was simply musing about the history and theology of law in his concurring opinion.

“It can't be the case that the First Amendment prohibits our courts from grappling with the history of law,” Weinberger said.

Weinberger said the new ruling gives the couples who originally sued another chance to file a wrongful death suit. A lower court had dismissed their claims on the basis that embryos were not considered children.

But Nicole Huberfeld, a law professor at Boston University School of Law, said Parker's opinion stands out because it references Christian beliefs so significantly.

"The thing is that's unusual is how overtly this concurrence is relying on Christian sanctity of life reasoning," she said.

The First Amendment's Establishment Clause typically limits the role religion can play in government, but the U.S. Supreme Court in 2022 changed the longstanding process by which it reviewed conflicts between government and religion. The decision to change that process was written by Justice Gorsuch, who said the court needed to rely more heavily on "reference to historical practices and understandings." Parker, the Alabama judge, specifically referenced Gorsuch in his concurrent opinion.

Past Supreme Courts might have objected to Parker's reliance on religion, but Huberfeld said she's not sure whether the current conservative majority ‒ which overturned the right to abortion two years ago ‒ would find it problematic.

"Judges are not supposed to rely on religious principles for legal reasoning," Huberfeld said. "The Alabama Constitution does use the word 'God.' But so does the Declaration of Independence."

Professor Ian Farrell of the University of Denver’s Sturm College of Law said Parker’s opinion is “certainly problematic” because it invokes cherry-picked portions of the Christian faith.Like other experts, he said the judge’s opinion may run afoul of the First Amendment’s Establishment Clause because it so clearly draws from Christian faith to reach a conclusion.  “The Bible tells people to do a lot of crazy stuff,” Farrell said. “It doesn’t strike me as legitimate legal reasoning.”

Religion has always affected the way people interpret the law and played a role in the life of Americans, said Hendricks of UC Boulder. But legal standards have typically kept one specific religion, such as Christianity, from imposing its values on everyone.“The concern a lot of people have is that we’re on a path to theocracy here."

Lindsay Heller, an IVF mom and attorney, said she thanks "whoever is up there" every day for her two kids. But she believes IVF decisions should be between families and doctors ‒ not courts and religion.

"IVF might fall by the wayside if you're going by someone's religious values about how life is created," she said. "A doctor isn't going to put their license on the line to help someone get pregnant."

Elizabeth Weise contributed to this report.