A TALE OF TWO COURTS AND THEIR RESPONSE TO ROE V. WADE'S DEMISE

For the past half century, state courts have largely toed the line and followed the U.S. Supreme Court’s Roe v. Wade (1973) decision creating a “right” to abortion and thereby invalidating the abortion laws of nearly all states.

But the U.S. Supreme Court has overruled Roe v. Wade in its Dobbs v. Jackson (2023) decision, so state and lower federal courts are no longer bound by that earlier decision. Join me as I tell a “Tale of Two Courts,” how two state supreme courts have addressed preborn human life since the Dobbs decision

ALABAMA

By many accounts, the Alabama Supreme Court, by its recent Aysenne v. Center for Reproductive Medicine decision, has transformed itself into a theocratic autocracy. They have created a right to life for embryos conceived in vitro out of thin air, many claim, effectively shutting down the practice of in vitro fertilization and thereby depriving countless would-be parents of the opportunity to have families.

In fact, the Alabama Supreme Court has faithfully followed the Alabama Constitution. In 2018, the people of Alabama ratified the Sanctity of Life Amendment, which reads:

“(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.

“(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.

“(c) Nothing in this constitution secures or protects a right to abortion or requires the funding of abortion.”

In keeping with this amendment, the following year (2019), Alabama adopted one of the strongest abortion laws in the nation.

Protecting unborn human persons, the Sanctity of Life Amendment makes no exceptions for children conceived in vitro. Children conceived in vitro are therefore “unborn children,” entitled to “the rights of unborn children, including the right to life.” Further, the Amendment establishes that Alabama’s public policy seeks to “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”

The Alabama Supreme Court therefore acted with judicial restraint and followed the doctrine of strict construction, interpreting the Alabama Constitution as written. Any other interpretation would have constituted judicial activism, twisting the Constitution to mean something it doesn’t say.

The case arose out of a lawsuit alleging that an Alabama clinic negligently allowed the destruction of frozen embryos. Ruling that these frozen embryos were unborn children under the Alabama Constitution, the Alabama Supreme Court sent the case back to the trial court for further adjudication. Fearing that they could be held liable for discarded frozen embryos, the University of Alabama at Birmingham Hospital suspended its in vitro program, and several other hospitals followed suit.

This prompted Alabama to adopt SB159. This new law does not dispute the court’s finding that frozen embryos are human persons, but it exempts IVF providers from liability for the destruction of frozen embryos. Now that SB159 is law, many IVF providers are back in business.

Alabama House Speaker Nathaniel Ledbetter says “IVF is as pro-life as it gets.” I might be inclined to agree – unless I were a discarded frozen embryo.

I sympathize with would-be parents who cannot conceive a child, and I understand their hope that IVF can enable them to have the family they so desperately want. And I would be less troubled if the bill provided immunity only for the unintentional destruction of frozen embryos, but it appears to protect their intentional destruction as well.

IVF clinics commonly produce multiple frozen embryos so the would-be parents can select one to be their child, while the others are either consigned to labs or discarded. But if the Alabama Constitution is correct – and I believe it is – these frozen embryos are human persons, and they have a right to live. Can we justify a practice that allows the killing of multiple preborn children so that parents can fulfill their dreams of raising families?

As medical science advances, the moral dilemma will become more difficult. At present, a frozen embryo can develop into a full-term baby only if it is implanted in a woman’s womb. But that will likely change.

Medical science is working on the development of artificial wombs, or possibly the wombs of animals such as sheep. Once medical science achieves ectogenesis (production of a baby outside the mother’s body), this frozen embryo may develop into a full-term baby, and then into a child and an adult, without ever being implanted in a mother’s womb. Can we doubt that such a person is a human being?

If we grant that this adult person who was conceived in vitro and was never implanted in a womb and never born is nonetheless a human being, when did that person become human? The answer must be at fertilization, for at that point the child has all the DNA largely determining his sex, skin tone, hair color, and so much about the adult person that child will become. And if so, that child at fertilization has the God-given right to life that the Alabama Constitution recognizes, and that the Alabama Supreme Court has affirmed.

Maybe medical science will provide a solution to this dilemma. As Chief Justice Parker pointed out in his concurring opinion, some countries already limit the number of frozen embryos that can be produced. But while we recognize the joy of parents that their hopes for a child can finally be fulfilled, we must also remember that each frozen embryo produced in vitro is a human person whose life must be protected.

Are we really certain that God wants us to venture along these uncharted, trackless paths?

Let us proceed with caution.

ARIZONA

Can a “dead” statute be brought back to life? The Arizona Supreme Court seems to think so. In Planned Parenthood v. Kristin Mayes/Hazelrigg (2024), the Court ruled that Arizona’s 1864 abortion statute – consigned to the morgue in 1973 when the U.S. Supreme Court invalidated abortion laws by declaring abortion a constitutional right in Roe v. Wade – is now valid and enforceable because Roe v. Wade was overruled.

Many commentators, a few of whom may have read the Planned Parenthood decision, say the Arizona Supreme Court’s judicial activism is exceeded only by their political incorrectness. Taking a 160-year-old abortion statute thrown by the wayside back in 1973 and declaring that this statute is now back on the books, prohibiting all abortions except those necessary to save the life of the mother – why, that’s like breathing life into Ezekiel’s valley of dry bones (37:1-14)!

But what did the Court really do?

Let’s look at the facts:

• The Arizona statute was passed by the Legislature in 1864 and was in keeping with abortion laws adopted in states across the country, which recognized developments in medical science proving the preborn child is a living person.

• That statute was effective until the Supreme Court fabricated a supposed “right” to abortion in Roe v. Wade (1973), enjoining the enforcement of the Arizona abortion law. However, the Legislature never changed the law nor removed it from the books.

• The U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson (2022), holding that, because there is no right to abortion in the U.S. Constitution, states are free to regulate abortion as they deem appropriate.

• Because the Roe decision is no longer in effect, there is now no federal reason Arizona cannot enforce its abortion law. The Arizona abortion law is therefore in effect once again.

Two questions are worthy of consideration:

• If a court decision invalidating a state law is overruled, is that state law “resurrected,” or does the Legislature have to pass it again? Courts and legal scholars are unclear; suffice it to say, the Arizona Supreme Court’s position is within the mainstream of jurisprudence.

• Did the Arizona Legislature effectively repeal the 1864 statute by passing a new statute prohibiting abortion later than 15 weeks after conception? The Court considered that question and noted that nothing in the new statute repealed the old statute; in fact, the new statute specifically stated that the act does not “create or recognize a right to abortion” or “repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.”

Just as the Alabama Supreme Court rightly concluded that the Alabama Constitution’s protection of preborn children includes frozen embryos, so the Arizona Supreme Court rightly concluded that the 1864 law is still in effect. Deciding otherwise would have been judicial activism in the extreme. It is the responsibility of legislators, not judges, to determine whether laws are too old and need to be replaced. The 10 Commandments with their prohibitions against murder and theft are 3,400 years old, but they are hardly outdated.

How should we respond these decisions?

First, we should thank God that courageous Christian jurists like Justice Alito at the U.S. Supreme Court, Chief Justice Parker at the Alabama Supreme Court, and Justice Lopez at the Arizona Supreme Court had the insight and courage to follow the Constitution and to protect the preborn right to life.

Second, we should consider the practical consequences of their decisions. Dobbs led to a backlash, partly among those misled to think the Supreme Court outlawed abortion. (It didn’t; it left the issue to the states where it belongs.) Pro-abortion measures were passed and pro-life measures were defeated in legislatures and in popular referenda, even in conservative states. The Alabama LePage decision and the Arizona Planned Parenthood decision threaten even greater backlashes. If we overrule Roe v. Wade (the worst constitutional atrocity since Dred Scot) but the result is the defeat of pro-life legislators and other candidates across the board, along with the enactment of abortion-demand laws in every state, have we really scored a victory for the pro-life cause and the lives of the preborn?

I’m still thinking about this. But I’m starting to conclude that, when enacting righteous laws and policies, legislatures and courts cannot get too far in front of public opinion. Otherwise, the people will dig in their heels and rebel.

E. C. Wines, a great Bible scholar whose “Commentaries on the Laws of the Ancient Hebrews” (1853) is a classic, observed that a literal application of the Mosaic Law “overlooks a material distinction – the distinction between laws intrinsically the wisest, and laws which are the wisest only when viewed as relating to times and circumstances.” He continued:

“Civil laws, whatever be their source, to be adapted to the wants of any given community, must arise out of circumstances, and be relative to certain specific ends; which ends, under other circumstances, it might be the height of folly to pursue. When Solon was asked whether he had given the best laws to the Athenians, he replied: ‘I have given them the best that they were able to bear.’ Sage response! Is it not of much the same nature with that declaration of divine wisdom to the Jews, which has so perplexed biblical inquirers, ‘I gave them also statutes that were not good,’ [Ezekiel 20:25] that is, laws not absolutely the best, though they were relatively so. Montesquieu, with that penetration which belongs to all his philosophical reflections, has observed, that the passage cited above, is the sponge that wipes out all the difficulties, which are to be found in the law of Moses. …

“A wise legislator, whether divine or human, in framing a new code of laws for a people, will give attention to considerations of climate, of religion, of existing institutions, of settled maxims of government, of precedent, of morals, of customs, and of manners. Out of all these there arises a general tone, or habit, of feeling, thinking, and acting, which constitutes what may be called the spirit of the nation. Now, a lawgiver shows himself deficient in legislative wisdom, who makes laws which shock the general sentiment of the people, laws which are at war with prevalent notions and rooted customs, which strip men of long-established and favorite rights. …

“The principle that laws must be relative to circumstances, that they must grow out of the state of society, and be adopted to its wants, is founded in reason, and confirmed by experience.”

Does this mean we give up our legal and political struggle for the civil rights of the preborn? Absolutely not!

But while we litigate and legislate, we must also educate. We must impress people with the personhood of the preborn -- an easy task, because biblical testimony and scientific evidence are both clear. The New Testament tells us that John the Baptist “leaped for joy” in his mother’s womb when Mary, who was carrying Jesus in her womb, entered her presence (Luke 1:41). Modern medicine tells us that from the moment of fertilization the preborn child has a DNA all its own, different from its father, mother, and every other person.

The battle for preborn life did not culminate with the Dobbs v. Jackson decision. It now enters an intensified stage – the battle for the hearts and minds and souls of men. But it is a winnable war, so let us press on to victory!

Col. Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He may be contacted for speaking engagements at eidsmoeja@juno.com. Portions of this column are excerpted from Col. Eidsmoe’s columns for 1819 News.