The US Supreme Court’s Dobbs v. Jackson decision that overturned Roe v. Wade left many issues undecided, beginning with when human life begins. A Mississippi law stating that human life begins at conception provoked the Dobbs decision. But Dobbs argues the issue is so complex that states should decide. In so doing, the court majority abdicated its legal responsibility and imposed a hidden religious interpretation on the Constitution. (See my Religious History of Abortion.)
In 2018, Alabama voters amended their state’s constitution to read: “(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” (Art. I, § 36.06(a)). This amendment is commonly referred to as the “Sanctity of Life Amendment.”
Anticipating that Roe v. Wade would be overturned, the Alabama legislature passed a total ban on abortion, with a single exception for “serious health risk” to a pregnant woman. The amendment made no exceptions for pregnancies resulting from rape or incest.
On February 16, 2024, the Alabama Supreme Court ruled that embryos kept in a cryogenic facility are not only “extrauterine children” (3), but their “parents” can sue in case of harm to embryos. The court ruled that, for purposes of Alabama law, there is no difference between a twelve-year-old and “embryos kept in a cryogenic nursery” (2), humanizing an elaborate refrigerator.
Immediately after the decision, the University of Alabama at Birmingham Health System paused all in vitro fertilization (IVF) procedures. While the Alabama ruling only affects Alabama, other states with such restrictive laws must now consider this issue. States will have to act quickly because four million births in the US result from IVF. Carving out an exception will be difficult given the Republican position, but Republican legislator are scrambling to find a way.
The Alabama Supreme Court pursued a strategy like that of the US Supreme Court in its Dobbs decision. Rather than answering difficult questions or even raising them, it ruled narrowly and legalistically. The court employed simplistic reasoning. The Alabama Constitution recognizes and requires the support of unborn “life” in its “Sanctity of Unborn Life Amendment.” Since human life begins at conception, they argued, a frozen embryo is a human life, a child, under the law and deserves protection and support. Therefore, the destruction of a frozen embryo is covered by Alabama’s 1872 Wrongful Death of a Minor Act, allowing the embryo’s parents to sue for damages. Case closed! (See Joelle Boxer, Harvard Law, Bill of Health Blog for a succinct and trenchant analysis of the Alabama decision.)
The majority opinion pretends that its ruling follows the logic of Alabama law, freed from the constraints of Roe v. Wade’s acknowledgement of a woman’s constitutional right to an abortion. Fetal lives, not actual, living women, have all the rights. This reasoning follows the strategy of the pro-life movement.
In a long concurring opinion, Tom Parker, the chief justice of the Alabama Supreme Court, rips away the legalistic pretention and exposes the religious roots of Alabama’s position:
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 the prophet Jeremiah and applied it to every unborn person in this state: “Before I formed you in the womb I knew you, Before (sic) you were born I sanctified you” Jeremiah 1:5 (NKJV 1982). (p. 48)
In his opinion, Parker admits that sanctity of life is a modern concept, dating only to the late 1950s (31), but he tries to shore up the argument by stating that human beings are made in God’s image, referring to Genesis. “The common usage of this phrase [the sanctity of life] has continued into the twenty-first century, referring to the view that all human beings bear God's image from the moment of conception” (31).
Parker engages in classical proof texting. By lifting a scripture passage out of its original context, one can make it fit almost any desired context. Jeremiah does not refer to the union of sperm and ovum, but to the prophet’s call. The text employs hyperbolic language to claim that God called the prophet from the beginning of time; that Jeremiah was a prophet even before he was born. Such exaggerated language characterizes prophetic discourse. Jeremiah makes no general statement about humanity, much less conception, a process about which the ancient Hebrews were profoundly ignorant.
“Created in God’s image” has a fascinating lineage. Genesis contains two creation stories that work on different principles. This first one lacks a narration of creation. It is a poetic expression.
So God created humans [adam] in his image,
in the image of God he created them [him];
male and female he created them. (Genesis 1.27 NRSVUE)
The Hebrew presents a triplet, with each phrase building on the previous one. The NRSVUE translates adam as “humans” which is correct, but adam is a wordplay on the Hebrew word adamah, meaning earth or soil.
The man Adam does not appear in this story but in the second one (Genesis 2), which anthropomorphizes God creating Adam by breathing into his nostrils, making a living, breathing being. Significantly, in the little poem of the first creation story, the image of God is not “a human,” a male, Adam, but the totality of humanity, male and female. The duality of humanity represents the oneness of God.
Proof texting works because you can ignore what a verse really means, and make it mean anything you want. It happens so fast that it appears as common sense. On the other hand, understanding what a passage means in context requires hard work, even learning and studying ancient languages and cultures. For many, it’s too much work. Centuries of preaching based on proof texting have convinced audiences that proof texting is the right way to interpret scripture. Even more, sola scriptura, a fundamental principle of the reformation, requires the Bible’s meaning to be clear and simple. Proof texting delivers that clear and simple meaning. It implies that scripture is always about now, not the past.
The State of Alabama’s ”Sanctity of Life Amendment” that “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” represents a modern, religious belief. It is not ancient or even traditional but a late twentieth-century religious belief. Even more, it is the belief of evangelicals and biblical fundamentalists with no deep basis in the Christian tradition, much less the Jewish or Islamic traditions.
Despite judge Parker’s proof texting argument, both science and the history of Christian thought stand against the position that human life begins at conception. Augustine and Thomas Aquinas argued that the soul went through stages of development—first a vegetable soul, then an animal soul, and finally a human soul. This understanding represented the traditional Christian position until modern times. Augustine and Thomas Aquinas would be shocked by the modern Christian aberration that fails to account for human development. The traditional medieval analogy still holds: an acorn is not an oak tree. An acorn possesses that potential but its potential has not yet been actualized. The same holds true for the zygote. Potentially it is a human being but not actually. No scientific, biological, or medical evidence points to human life beginning at conception. Catholics, Evangelicals, and biblical fundamentalists espouse this novel argument to serve other religious and political purposes. (For a fuller argument see my Religious History of Abortion, chapter 9).
Judge Parker correctly stated, “We believe (emphasis added) that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.” Since the Enlightenment, the Christian faith has encouraged an anti-scientific viewpoint. Faith or belief allows a person to believe things not otherwise knowable, or even things that are contrary to the evidence. (See my “The Trouble with Faith” blog post.) “That each human being, from the moment of conception, is made in the image of God” falsely takes on an aura of truth because the people of Alabama believe it. And because they accept it as true, they can impose it on all citizens of Alabama, whether or not they share that belief or religious affiliation. In Alabama, belief has become law, a major step toward theocracy.
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