The Truth about Alabama’s Ruling on IVF


Published February 28, 2024

First Things


During the George W. Bush administration, Americans were repeatedly warned about Christian fascists or theocrats threatening to take over America. Now we’re told Christian Nationalists will be running the second Trump administration and imperiling all we hold dear as Americans.

Ruth Marcus opened a recent Washington Post column with a “welcome to the theocracy.” She was referring to an opinion by Alabama Chief Justice Tom Parker on a state constitutional amendment regarding “the sanctity of unborn life” as applied to IVF embryos. Justice Parker had cited various sources in the Jewish and Christian traditions to explain the roots of “sanctity.”

Meanwhile Heidi Przybyla wrote last week in Politico on how “Trump allies prepare to infuse ‘Christian nationalism’ in second administration.” She later explained what makes “Christian Nationalists” so dangerous: What “unites them as Christian nationalists, not Christians because Christian nationalists are very different, is that they believe that our rights as Americans and as all human beings do not come from any earthly authority. They don’t come from Congress, from the Supreme Court, they come from God.”

Theocracy is rule by religious authorities. Alabama doesn’t have that. But the idea that rights come from God, not government, is the basic American creed, etched into our founding document by no less secular a figure than Thomas Jefferson: “We hold these truths to be self-evident, that all men are created equal and endowed by their Creator with certain inalienable rights.”

The same idea inspired our greatest social reform movements. The Reverend Martin Luther King Jr. advocated for what he called the brotherhood of man under the fatherhood of God. His “Letter from Birmingham Jail” cited Saints Augustine and Aquinas to explain that an unjust law is no law at all and that a law is just if it accords with the natural law and the eternal law of God.

That was okay, Przybyla explains: “In the past, that so-called ‘natural law’ . . . has been used for good in social justice campaigns. Martin Luther King evoked it in talking about civil rights.” The difference now, Przybyla says, is that “you have an extremist element of conservative Christians, who say that this applies specifically to issues including abortion, gay marriage, and . . . the ruling in Alabama.” But it cannot be that appeals to religion and natural law are acceptable when they support causes Przybyla likes but illegitimate when they support causes Przybyla opposes. 

More broadly, the institutional separation of church and state does not entail a separation of politics and religion, or law and morality. All law is based on morality, and all moral systems, secular or religious, rest on ideas about the ultimate source of meaning and value. That’s inevitable for everyone—secular or religious. Saying that our rights—and dignity and sanctity—come from God isn’t spooky “Christian Nationalism.” And it would be odd—indeed unjust—to say that all non-religious worldviews have a seat at the table, while religious ones don’t. 

Przybyla tried clarifying on X: “I said men are making their own policy interpretation of natural law. . . . You’re welcome to as well but you don’t speak for all Christians & certainly not for God.” Well, yes, trying one’s best to interpret the natural and eternal law is all anyone can do. As Abraham Lincoln put it during the Civil War, “Both read the same Bible and pray to the same God and each invokes His aid against the other.” So too in our debates. On all sides, we find citizens reading the same Bible and praying to the same God—and different holy texts and gods, and none. We disagree about natural law and God, yes, but also about Kant and Mill, about deontological ethics and utilitarianism. American pluralism isn’t a reason to exclude any voices, but to hear out everyone’s best effort to interpret the moral law.

The American tradition is one of democratic contestation. Sheer appeals to religious authority may or may not persuade, but they pose no threat. You may not be moved by appeals to the Bible or John Calvin. But then your neighbor may be unmoved by appeals to Kant or Rawls. Some rationales are better, because truer, than others, but deliberation is the way to test them. None is ruled out by fiat.

Which brings us back to Alabama. The media didn’t just overreact to a judge’s mentioning God as the source of the sanctity of life. They falsely claimed IVF was about to be banned—and Republicans fell for the claim. In reality, the Alabama civil (not criminal) case was brought by the parents of IVF children, not opponents of IVF. The clinic keeping their embryonic children in cryopreservation had not provided adequate protection, so a patient managed to wander in and remove several embryos, causing their deaths. The parents sued to hold the clinic accountable for the wrongful death of their children. And the Alabama Supreme Court held that a statute protecting minors (including, as precedent held, embryos in the womb) contained no exception for embryos outside the womb. Far from attempting to ban IVF, the parents who brought this lawsuit were trying to protect frozen embryonic children, and rightly so.

The media’s manipulations would be risible if IVF weren’t so morally and emotionally fraught. Many couples experiencing infertility ache to start a family. Doctors don’t always impress on them the human costs of IVF. For one birth, doctors might create ten to twenty embryos, transfer several of the “most promising,” freeze the rest, and if more than one implants, abort the others. So the typical IVF cycle results in multiple dead and frozen embryos. And unlike in European nations, there are almost no laws in America regulating how many embryos can be created or destroyed, or how frozen embryonic human beings can be treated. 

To some, this casual disregard is no accident, because IVF itself treats children as products of technical manufacture. It thus fails to respect the equal dignity of human beings in their very origins. Or as some have put it, persons should be begotten, not made. They are to be welcomed as the fruit of an act of marital love. Relating to a child instead as a producer relates to a product is the seed of all the abuses of the IVF industry—the causal creation and destruction of “spares,” the filtering out of “defectives,” the selection for sex (boys) and other specs (eye color), the commodification of (often poor) women’s bodies as incubators. Nor are the fundamental moral concerns about IVF sectarian. While today the Catholic Church most prominently teaches that IVF itself is wrong, the three most prominent moral thinkers who opposed IVF’s introduction in the 1970s and ’80s were non-Catholic: The University of Chicago’s Leon Kass (Jewish), Princeton’s Paul Ramsey (Methodist), and Oxford’s Oliver O’Donovan (Anglican). 

The arguments stand or fall on the merits, not the religious identity (or lack thereof) of those making them. But Republicans should not fall for the left’s trap here. They should not hesitate to say that America’s best social and political reforms were suffused with religious conviction. Or that the deepest reasons for our laws lie in God’s eternal law. Nor should Republicans follow pollsters selling them on new government entitlements to IVF and other assisted reproductive technologies. There is no political appetite for bans on these procedures, and the GOP should call out the media’s lies suggesting there is. But our current state of unregulated embryo fabricating, freezing, and destroying does need fixing. The medically superior alternatives to IVF warrant promotion. And at the very least, embryos created through IVF deserve legal protection.

The Alabama ruling was legally and morally correct. And if Republicans would speak up, more Americans could learn the truth about it.


Ryan T. Anderson, Ph.D., is the President of the Ethics and Public Policy Center.

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