The demagoguery surrounding last week’s Alabama Supreme Court ruling involving in vitro fertilization (IVF)—incendiary rhetoric being pushed by Democrats to stoke a new fear while making political hay over abortion—deserves refutation. It also deserves an honest look at the incoherence of U.S. law caused by the distortions of almost 50 years of Roe v. Wade.
As some commentators have noted, this case was not brought by pro-life advocates trying to create fetal personhood. It was brought by clients of the clinic who tried to get pregnant through its “services.” Apparently, “a patient wandered into the facility where the clinic stored embryos and dropped several of them.”
So, what happened to those embryos? They ceased being embryos. They were now dead tissue (not unlike the dead tissue we put into coffins).
So, what happened?
Did they “die?” You can’t “die” unless you previously “lived”–and that proposition would make pro-abortionists go ballistic.
Were they “damaged?” Clearly, irreparably.
But do we want to say they’re “damaged?” Damage usually happens to things. I drop a vase and it’s “damaged,” i.e., broken. Do we want to classify embryos as just “things,” not essentially different from–say–the damaged wedding pictures caused when the postman ignores the “Do Not Bend” stamp on the envelope and wedges them into your mail slot?
Things get damaged. Persons get injured. In either event, something happened that shouldn’t have happened, and somebody else might have a claim for compensation. Damages usually can be replaced (e.g., the photographer can reprint the warped wedding pictures). Injuries—not so much: rarely can an injury be repaired “as good as new” and, if that injury is lethal, it can’t be repaired at all.
Those are the questions the Alabama Supreme Court ruling had to face and address.
Some stored embryos were not “gently hurt” (as the pretty euphemism for breaking things goes). So, were they “damaged?” Or “injured?” The aggrieved parents/would-be parents/wanna-be parents (see how our pretending that when life begins is an insoluble question leads to many other questions?) sought compensation. For what did they want compensation? “Damaged” embryos? “Injured” embryos?
Those parents brought suit under Alabama’s Wrongful Death of a Minor Act. Why? Most charitably, they wanted to be parents and their embryos were gone. Least charitably, compensation for injuries is, in general, more generous than compensation for goods.
The clinic knew that, too, which is why they contended the Act was inapplicable. The Court had to decide: does that law apply or not?
It said it did. In this narrow set of circumstances.
There are all sorts of narrow sets of circumstances where similar laws have come into play. In 2017, a gunman entered a church in Sutherland Springs, Texas. He went on a shooting spree that resulted in mass murder. A similar question arose back then: how many victims were there? Crystal Marie Holcombe was in her eighth month of pregnancy. When she died, so did her male baby/fetus/clump of tissue. So, were there 25 victims? Or 26?
Could the family of Carlin Holcombe make a claim on his behalf? Sue the gunman or his estate civilly? Sue the gun manufacturer? Claim insurance? Crystal Holcombe didn’t want an abortion. She considered Carlin her baby. Can the law? Or did the law have to pretend he was a “non-person” so as not to upset the “balance” of Roe?
Last summer, in the course of a confrontation in a Columbus, Ohio suburb, police shot and killed a 21-year-old pregnant black woman. She was accused of shoplifting alcohol from a store and had gotten into her car’s driver’s seat. Police, with guns drawn, ordered her to get out of the car. She did not. Police claim she put the car in gear, which could have run over the policeman standing in front of her hood. He shot. The case is being investigated. Did police react appropriately or was Ta’Kiya Young another racial victim? For our purposes, was her baby/fetus/blob of tissue also a victim? Would the same politicians complaining about Alabama dare tell Ms. Young’s family: “that baby was not part of the case?” Would they dare say that, rather than find a workaround, even after they ensconced an abortion-on-demand amendment into the state constitution last November?
These questions–and the confusion they cause–comes precisely from the refusal to grapple with when does human life begin and in what circumstances does it acquire legal protection from society?
The Alabama Supreme Court only addressed the question: could the people who were/wanted to be/hoped to be “parents” through those now lost embryos able to claim “injuries” under a Wrongful Death law? The Court said yes.
Are in vitro clinics in a panic? Well, yes—Big Fertility is largely unregulated because politicians, already burned by abortion, did not want to get into regulating IVF when it emerged in the late 1970s, not many years after Roe. Allowing for damages for “injuries” as opposed to plain old “product damage” (AKA “products of conception”) cuts into profits and poses substantially more financial risk … to Big Fertility.
These questions need discussion. I fear, however, that many politicians are again beating a big retreat because Democratic demagogues want to beat political drums.
But let’s follow the pretzel-twisting legal logic that comes from our refusal to grapple with these questions to its conclusion.
If the Alabama Supreme Court had decided in this case that Wrongful Death Act did not cover the parents/would-be parents/wanna-be parents/embryo-owners’ claims, what other outcomes were possible? Two:
- They could have been told, “oops, sorry. That’s the way the embryo crumbles!” and gotten nothing. Cruel to them but an outcome abortionists would have loved: no resolution of the status of the unborn child—even for purposes of injuries/damages—in law. So much for the advocates of “choice.”
- They could have then pursued a damages claim. But that suggests their “property” was damaged, in this case irreparably. That would require redefining the aggrieved litigants not as “parents” but as “owners.” A Virginia judge faced that conundrum a while back and resolved it by looking to precedents from the Old Dominion’s slave code as it pertained to “chattel property.” Does 21st century America really want Confederate, once slave-holding Alabama to go there?
When IVF came into the picture when parents divorced, similar conundrums arose. Are frozen embryos “children” to whom custody laws apply, or “property” to be divided along with the car, the house, and the furry babies? Faced with those Solomonic challenges, most courts punted, leaving the embryos literally on ice.
The problem is: the Alabama clinic had a premature defrosting, and the question became: how is responsibility to be assigned? Do we really want a Solomonic sword?
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This is an excellent analysis of a complex issue. I have been debating with people online about this and he is right, the incendiary rhetoric about it is over the top. Dr. Grondelski, as usual, brings clarity to exactly what occurred and its implications.
Dr. Grondelski surveys whether the terminated embryo is the victim of Wrongful Death, or instead only Damaged Property, or simply a non-event like any other casual accident or “oops” (something like a “couple” receiving a blessing that’s rhetorically not a non-blessing?).
So, as media talking heads–wedged between weather reports and advertisements–deflect reality from their market-share audiences, we might also consider the word games of yesteryear, linking the abortion industry/culture itself to its own historical parentage:
“I know of not a single case where anyone came out of the chambers alive” (Auschwitz commandant Rudolf Hoess on the destructive capacity of Zyklon B gas, 1947) and “It never ever results in live births” (an experienced abortionist on the merits of dissection and extraction, 1981);
“The subjects were forced to undergo death-dealing experiments ‘without receiving anesthetics’” (Dachau freezing experiments, 1942) and “the fetuses are fully alive when we cut their heads off, but anesthetics are definitely unnecessary” (Fetal researcher Dr. Martti Kekomaki, 1980);
“No criticism was raised” (conference of German physicians to the Ravenbrueck death camp sulfanilamide experiments, Berlin, May 1943) and “no one ever raised an eyebrow” (meeting of American pediatricians to an experiment involving beheading of aborted babies, San Francisco, 1973); and
“What should we do with this garbage” (Treblinka, 1942) and “an aborted baby is just garbage” (fetal researcher Dr. Martti Kekomaki, 1980).
In “Mein Kampf” (1925) Adolf Hitler referred to Jews as “a parasite in the body of other peoples”; fifty years later, the year of Roe v. Wade, a radical feminist group branded the unborn as “a parasite within the mother’s body” (an early edition of “Our Bodies, Ourselves: A Book By and For Women”).
(From William Brennan, The Abortion Holocaust: Today’s Final Solution [St. Louis: Landmark Press, 1983], Chart 6, and 100-102.)
How remarkable a similarity. Although evil has a common signature.
So to prove your point:
Go into your bathroom and flush an embryo/fetus down the toilet..
Next force your two yr. old under the water in the bathtub and watch her die.
Exactly the same..
The actions look different because of the methods & disparity in ages, but either action has the same end result: the ending of a human life.
The emotional response may be different, but by now you should understand that the emotional response is not the substance of the action. A killer with reduced empathy for his victim is not guilty of a lesser crime on that account. On the contrary, if there is any difference, we usually consider the cold-hearted, emotionless killer to be worse, or at least more dangerous to society and less available for redemption.
An excellent article by Mr. Grondelski on the Alabama case, and on IVF issues in general.
Everyone must read the actual decision. Both the majority opinion and the chief justice’s concurring opinion are absolutely brilliantly pro-life:
Alabama IVF Decision Case No. SC-2022-0515 IN THE SUPREME COURT OF ALABAMA
This might bring light to the Solomonic decision:
The North Pole argument and slavery
Pro-abortion argument:
Imagine a dying rich old man who kidnaps a woman and connects her 24/7 as an artificial kidney and forced blood donor for 9 months. Shouldn’t she have the right to disconnect, even if that would mean a sure death to him?
No one, no matter whom they might be to the world, to God or to the woman in whose body a conception has occurred, can tell the woman that someone else now owns her body and can use it against her will.
There are, at least in my mind, absolute, fundamental principles and the ultimate evil and unacceptability of slavery, reproductive or otherwise, is one of them.
Make all the arguments you like, but it ultimately comes down to that: are you willing to enslave women on your behalf or someone else’s or are you not? “
Prof. Fred Nazar’s answer:
It’s not about slavery of the mother, but about due mercy. Imagine a female scientist in the North Pole living alone. A chopper leaves her the supplies.
Now, the little daughter of the scientist, who was staying with her father back home, had sneaked in the chopper and then into the base. The divorced father had custody because the scientist preferred to focus on her career, but the girl missed her mom. The chopper left. No way it could return until 9 months.
1. Does the scientist have a right to kick her daughter out of the base, causing her sure death, just as a mother would kick her baby out of the womb-base?
In the analogy, the child is not viable to survive outside the base, just as the unborn baby is not viable to survive outside the womb-base.
2. Would keeping her daughter until the chopper’s return mean that she is a slave of her daughter? or of the father or grandparents or government?
3. Why is it that in every single country of the world, the scientist would be guilty of murder by abandoning her daughter, because abandoning anybody to death is a crime everywhere in the world and even worse if the person is a relative, and worst of worse, if the abandoned is a relative where you have obligation to care for, like a daughter or mother?
The analogy is good enough to show that abortion has nothing to do with slavery but everything to do with abandonment of a helpless person causing his/her death.
4. A definition of slavery is to treat a living human being like a thing.
Isn’t abortion a type of slavery, where the mother decides that a living human being is a thing and that she has the right to ask someone to stop the heart of the “thing”, which, by the way, is her own daughter/son?
There no such thing as a “thing”, when in time, the “thing” has a beating human heart, which could be transplanted to keep alive another human being!
So, in fact, being pro-abortion means being pro-slavery, and the real abolitionists are the pro-lifers. Pro-choice means choosing slavery, murder and genocide, in that order.