Author's Note
(I used a title to help United States Senator Tommy Tuberville—who prefers the title "Coach" to Senator—understand the issue (https://www.nbcnews.com/politics/congress/sen-tommy-tuberville-struggles-answer-questions-alabamas-ivf-ruling-rcna140073)
For now, I will ignore the issue of who the people of Alabama selected to represent them in the United States Senate, although it is hard to do so. Let's call it a fumble on the 1-yard line with 5 seconds on the clock, down by five points in the Championship game.
The Alabama Supreme Court in SC- 2022-0515 Lepage, et. Al. V. Center for Reproductive Medicine on an appeal from Mobile Circuit Court (CV-21-901607).
The gist of the decision ruled that an embryo—in this case, several fertilized and viable cryogenically frozen embryos harvested for In vitro fertilization (IVF)— is a child under Alabama law and subject to all protections offered under criminal and civil statutes.
The effect was to shut down the availability of IVF treatment in the State of Alabama.
(I encourage you to read Tuberville's response to his take on the decision; it would be almost comical if not so tragically idiotic. Were he still a football player, his academic standing—if there ever was such a thing—would be in jeopardy.)
Aside from the ramifications of the actual decision, the accompanying concurring opinion written by the Chief Justice of the Court, Tom Parker, troubles me the most.
In it, Judge Parker extensively references the Bible and other Christian writings to justify the ruling. He made much of the definition of the word, sanctity, as used in the Alabama Constitution regarding the "sanctity of unborn life."
Now, being guided by one's religious beliefs is one thing, but using religious texts and writings as legal justifications in secular matters is an entirely different thing. In arguing cases or rendering decisions, using established law, constitutional standards, precedents, and prior cases is how our appellate system—the penultimate being the Supreme Court—should work.
These elements are an actual and verifiable basis on which to render decisions. One can read the prior cases, look at the Constitution, and review the law independently with confidence in their actual existence.
When the Judge brings in Biblical texts—considering that there are thousands of versions translated from numerous language versions and the subject of ongoing and inconclusive debate about their origin—it removes the separation of church and state enshrined in the Establishment Clause.
The Judge is also guilty, as many adherents of religious doctrines are, of cherry-picking the bible quotes and definitions of keywords.
In defining the word sanctity on which the Judge places much of the justification of the decision, he focuses on a relatively modern interpretation. Here's the definition as the Judge writes,
"sanctity " was defined as: "1. holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations, or rights. Merriam-Webster's Collegiate Dictionary 1100 (11th ed.2003). (see decision at page 29)
He makes much of the root of sanctity in the English common law and equates this sanctity with a Christian foundation. But the word Sanctity has a much older origin than even the Christian epoch.
Derived from the Latin sancitatem (nominative sanctitas), meaning holiness and sacredness, the concept of the word existed long before the Christian adaptation of the word. Judge Parker would have us accept the word and its meaning as a solely Christian concept, thus binding on the law in Alabama.
What does it matter, one might ask, if the meaning is the same? It matters because Judge Parker is using a secular chamber to render a decision justified by Christian religious doctrine that affects millions of Alabama citizens, not all of whom are Christian.
The most troubling aspect is the conclusion, where Judge Parker goes beyond using specific Christian arguments to support the decision. In the last few paragraphs, Judge Parker invokes words from one of the versions of the Bible (NKJV 1982) as if it supports the decision without further debate.
"The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.
It is as if the People of Alabama took what was spoken of by the prophet Jeremiah and applied it to every unborn person in this state: "Before I formed you in the womb I knew you, Before you were born I sanctified you." Jeremiah 1:5 (NKJV 1982).
All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. 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. For these reasons, and for the reasons stated in the main opinion, I concur."
Judge Parker would have every citizen of Alabama—with the potential for such court decisions to have national ramifications—adhere to the law as determined by a Christian version of a god regardless of their religious faith.
This is precisely why the founders wrote the Establishment Clause: to prevent the government from establishing an official religion. All one must do is read the news and listen to the rallying cry of the Evangelicals and Christian Fundamentalists about this country being a Christian nation needing to return to this as the foundation of the nation to see the dangerous storm on the horizon.
Judge Parker's decision should be a clarion call for rationality to rise up and fight against the insidious nature of religious doctrine as guiding principles in secular matters.
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