IVF in Alabama

This is Joseph.

Alabama recently extended the abortion ban to include IVF, leading some providers to discontinue IVF in that state. The reasoning in at least of the concurring opinions drew on a broader tradition than much legal reasoning did:

But the court’s chief justice, Tom Parker, drew on more than the Constitution and legal precedent to explain his determination.

“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” he wrote in a concurring opinion that invoked the Book of Genesis and the prophet Jeremiah and quoted at length from the writings of 16th- and 17th-century theologians.

“Even before birth,” he added, “all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.”

The part of this that is interesting to me is that it ignores some obvious legal issues. For example, here is a very good test:

On a more serious note, it opens up a lot of questions. The easiest one is to ask how might this same reasoning apply to the death penalty. What about inheritance rights? Is a stored embryo eligible for a trust fund? Are they dependents on taxes?  

So what I think is really happening is that a court is playing politics. They well understand that this new definition will have a ton of legal ramifications and, if you want law to be consistent, it is a bombshell. So I think they are just doing it to make a point, and are confident that the Supreme Court will reverse it. But that is a bad way to do law. Law is about predictability and consistency -- not political sloganeering. Making the courts this abjectly political is not going to be a good development in the long run. After all, if the people of Alabama did not want IVF in their state, they could have asked their legislature to craft an appropriate law. But bootstrapping this policy preference on a purely legal fetal personhood argument seems like a poor way to run a court. 

It also illustrates that the death of Roe versus Wade was not a minor disagreement on how to regulate a set of medical procedures but rather seems to be encouraging rather draconian regulations instead. All in all, this is really kind of bad news for everyone.