By Frederick S. Lane

Image credit: www.cdc.gov

For millennia, childless couples were told that their nurseries were empty because of “God's will,” or that it was “all in God’s plan.” Similarly, empty condolences were offered when infants or children died of preventable diseases, unsanitary conditions, unhealthy foods, or foreseeable negligence.

Over the past couple of centuries, we’ve made significant progress in lessening the cruelly capricious nature of “God's will,” particularly with respect to infectious diseases. In 1796, for instance, English physician Edward Jenner developed a vaccine for smallpox, a particularly vicious infection estimated to have killed 300 million people in the twentieth century alone. Thanks to Jenner’s discovery and a worldwide consensus sadly under attack right now, the World Health Organization declared that smallpox had been fully eradicated in 1980. Similarly significant progress has been made on other viral diseases that have plagued humanity, including polio, measles, rubella, tetanus, and so on.

At roughly the same time that the battle against smallpox was coming to a close, scientists announced a remarkable breakthrough for childless couples. After decades of research, two British doctors, Patrick Steptoe and Robert Edwards, successfully combined a human egg and sperm in a Petri dish in their lab, a process they described as “in vitro fertilization” (IVF). They implanted a fertilized egg in the womb of a patient named Lesley Brown, and nine months later, on July 25, 1978, Louise Joy Brown, the world’s first “test tube” baby, was born.

It would be a gross understatement to say that IVF has been a popular advance in medical care. In February 2024, CNN reported that roughly 2% of all children born in the US get their start in a glass container. That translates into more than 8 million IVF babies since Louise Brown was born nearly forty-six years ago.

CNN’s decision in February to write about the popularity of IVF was no accident. Like a lot of news outlets, CNN’s interest was sparked by a decision issued by the Alabama Supreme Court on February 16, 2024.

The question before the Court was whether an embryo stored in a cryogenic nursery at an IVF facility qualified as a “child” for the purposes of a claim under Alabama’s Wrongful Death of a Minor Act (first adopted in 1872). The plaintiffs had sued over the destruction of several embryos that allegedly resulted from the facility’s negligence: a door to the cryogenic nursery was left open, an unauthorized person walked in, picked up several embryos, and then promptly dropped them due to the freezing temperature of the containers. A trial court dismissed the case, and the plaintiffs appealed.

The opinion issued by the Court is easily one of the most theocratic judicial decisions in recent memory. The author, Associate Justice Jay Mitchell, begins his analysis of the WDMA with an unequivocal declaration of conservative Christian belief:

All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a “human life,” “human being,” or “person,” as those words are used in ordinary conversation and in the text of Alabama’s wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child’s development, regardless of viability.

That is a fairly stunning and profoundly unconstitutional proclamation by a state supreme court. Yes, the WDMA was passed by the state legislature, and it was interpreted by an elected state court, but a majority of a state’s population, even in a predominantly conservative Christian state like Alabama, is prohibited by the US Constitution from imposing its religious beliefs on everyone in that state. There are, of course, any number of people who do not believe that a six-day-old frozen embryo is a “child” as that term is generally used. The world’s major religions, all of which are represented in the United States and in Alabama, have a range of beliefs regarding the significance of conception (and the appropriateness of abortion). Few are as absolutist on that issue as the white evangelical Christians who dominate the Alabama legislature and that state’s highest court.

But with an uncompromising Christian worldview as its starting place, it comes as no great surprise that the Court concluded that “the phrase ‘minor child’ means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: ‘an unborn or recently born’ individual member of the human species, from fertilization until the age of majority.” The Court also found that given the text of the WDMA, there was no reason to distinguish between embryos in utero and those stored in vitro. Plaintiffs can now pursue their claim for wrongful death.

Whatever joy Christian nationalists may have taken from the Court’s opinion, however, was swiftly tempered by harsh political reality. Ever since the US Supreme Court opened the floodgates to misogynistic state action by reversing Roe v. Wade in June 2022, the political cost for Republicans has been steep. Virtually every pro-choice initiative on the ballot has passed, even in solidly red states like Kansas and Ohio. When three out of the four IVF facilities in Alabama promptly announced that they were shutting down in the wake of the Court’s decision, Republicans in Alabama (and beyond) quickly realized that they had taken a bad situation and made it markedly worse. A national poll released at the beginning of March 2024 underscored the potential damage: 86% of Americans believe that IVF should be legal. Given our polarized society and the relentless culture battles of the last several decades, it is exceedingly rare to find any issue on which 86% of Americans agree.

Hoping to staunch the looming political wounds, the Alabama state legislature quickly passed a law purporting to provide civil and criminal protection for facilities that provide IVF services. However, at least one facility has not restarted its program, arguing that the new law is not sufficiently protective. Some legal experts also question whether the new law would survive a court challenge, since it does not address the core finding of “personhood” for embryos that exposed IVF facilities to liability in the first place.

The speed with which the Alabama legislature moved to fix the IVF debacle offers a clear illustration of the bind in which Christian nationalists find themselves. The crusade to reshape the US Supreme Court that I wrote about in The Court and the Cross has largely succeeded (thanks in no small part to one of the nation’s least virtuous presidents); religious activists have little reason to fear a vigorous enforcement of the Establishment Clause against even the most overtly religiously-inspired legislation. But so long as we remain a nominally democratic nation, the dominionist project can be stymied by outraged voters who enjoy the benefits offered by scientific progress.

Unfortunately, for aspiring autocrats and an inherently autocratic movement like Christian nationalism, voting is seen more and more as a “bug” than a feature of a functioning, multi-ethnic society. If “the will of the voters” is stymying God’s plan, they argue, then it is voters (and voting) that should yield. This is a political and social battle that has been brewing for half-century, one that is at the core of the ongoing national election. Last voter out, please leave the Enlightenment on.

About the Author 

Frederick S. Lane is an author, attorney, educational consultant, and lecturer based in Brooklyn, NY. He is a nationally-recognized expert in the areas of cybersafety, digital misconduct, personal privacy, and other topics at the intersection of law, technology, and society. Lane has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. He has written eight books, including Cybertraps for Educators. Find him online at FrederickLane.com and on Twitter (@fsl3).