As part of the coverage of a major league baseball game being played in the former Negro League venue Ridgewood Field in Birmingham, Alabama, Hall of Fame baseball star Reggie Jackson was asked how emotional it was to return to the field. — Read the rest

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The U.S. Supreme Court ruled Thursday that the due process rights of two Alabama women were not violated when they both had to wait over a year for a court hearing to challenge the police seizure of their cars.

In a 6–3 decision, the Court's conservative majority held in the case Culley v. Marshall, Attorney General of Alabama that property owners in civil asset forfeiture proceedings have no due process right to a preliminary court hearing to determine if police had probable cause to seize their property.

"When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitution requires a timely forfeiture hearing," Justice Brett Kavanaugh wrote in the majority opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. "The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court's precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing."

Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is never charged or convicted of a crime. Law enforcement groups say it is a vital tool to disrupt drug trafficking and other organized crime.

Civil liberties groups across the political spectrum argue that the process creates perverse profit incentives for police and is unfairly tilted against property owners, who bear the burden of challenging the seizures in court. 

Those criticisms have been echoed in the past by not just the Supreme Court's liberal justices but also Justices Clarence Thomas and Neil Gorsuch, giving forfeiture critics hope that a skeptical majority on the Court would clamp down on civil forfeiture.

However, despite writing in a concurrence that "this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution's promise of due process," Gorsuch, joined by Thomas, both agreed with the majority opinion.

Today's ruling is a disappointment, then, for groups such as the Institute for Justice, a libertarian-leaning public-interest law firm that filed an amicus brief on behalf of the petitioners. Kirby Thomas West, an Institute for Justice attorney, calls the ruling "a big loss for private property rights."

"Today's decision will mean many more property owners will never get their day in court when it could do them some good—shortly after the seizure of their vehicle or other property," says West. "Instead, civil forfeiture cases will languish for months or years before they are resolved. Meanwhile owners of seized vehicles will scramble to find a way to get to work, take their kids to school, run errands, and complete other essential life tasks."

The Supreme Court agreed to hear the case—two consolidated cases both involving Alabama women whose cars were seized by police for offenses they were not involved or charged with—last year.

In the first case, Halima Culley's son was pulled over by police in Satsuma, Alabama, while driving Culley's car. He was arrested and charged with possession of marijuana and drug paraphernalia. The City of Satsuma also seized Culley's car. It took 20 months, during all of which Culley was bereft of her vehicle, before a state court ruled that she was entitled to the return of her car under Alabama's innocent-owner defense.

In the second case, a friend of Lena Sutton took her car to run an errand in 2019. He was pulled over by police in Leesburg, Alabama, who found methamphetamine in the car and seized it. Sutton also eventually was granted summary judgment on an innocent-owner defense, but not until more than a year after the initial seizure of her car.

Culley and Sutton both filed lawsuits claiming that the towns violated their Eighth and 14th Amendment rights by depriving them of their cars for months when a pretrial hearing to establish probable cause for the seizures could have quickly determined that they were innocent owners.

Those long waits are not unusual. Last year, the U.S. Court of Appeals for the 6th Circuit ruled that Detroit's asset forfeiture scheme violated residents' constitutional rights by making them wait months for court hearings to challenge the validity of seizures. One of the plaintiffs in that lawsuit waited two years for a hearing.

However, the 11th Circuit rejected Culley's claims, finding the state's civil forfeiture process satisfied the requirements for a timely hearing under the speedy trial test, a balancing test created to resolve allegations of Sixth Amendment violations. However, every other circuit that has weighed in on the issue used a different balancing test established in the 1976 Supreme Court case Mathews v. Eldridge to determine due process violations.

The Supreme Court's conservative majority sidestepped the question of which test to use altogether, ruling that the existing requirement for a timely court hearing in forfeiture cases satisfied constitutional requirements.

"A timely forfeiture hearing protects the interests of both the claimant and the government," Kavanaugh wrote. "And an additional preliminary hearing of the kind sought by petitioners would interfere with the government's important law-enforcement activities in the period after the seizure and before the forfeiture hearing."

In a dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote that the majority opinion's reasoning was "deeply flawed" and, rather than resolve the question of which test lower courts should apply, creates a universal rule that "hamstrings federal courts from conducting a context-specific analysis in civil forfeiture schemes that are less generous than the one here."

The post Supreme Court Rules No Due Process Right to Preliminary Hearings in Civil Asset Forfeiture Cases appeared first on Reason.com.

In February, police officer John Barton arrested Twyla Stallworth in Andalusia, Alabama, because she refused to give him her photo identification. The only problem? Barton had no legal basis to demand Stallworth fork over her I.D. 

Stallworth's arrest is just the latest in a series of false arrests in Alabama that have stemmed from a misinterpretation of the state's 2006 "stop and identify law," which allows police, when they have reasonable suspicion that a crime is taking place, to demand individuals provide their name, address, and an explanation of their actions—but not their photo I.D.

It's not entirely clear how Barton ended up at Stallworth's home on February 23. A lawsuit filed by Stallworth earlier this month does not provide background on the incident, and video filmed by Stallworth's 18-year-old son Jermari starts after Barton had come to Stallworth's door. According to USA Today, Stallworth's lawyers say that the confrontation started when she called to complain about a neighbor's loud music.

However, even if Barton had some reason to believe Stallworth might have been committing a crime—something that is possible but seems unlikely given Stallworth was in her own home—he still wouldn't have been able to demand her I.D.

"Give me an I.D. or go to jail," Barton told Stallworth, who incredulously responded, "I'm going to jail for not providing my I.D."

In the video of the incident, Barton is seen pushing Jermari away and attempting to handcuff Stallworth.

"Don't push my son! What's wrong with you? You will not push my son!" Stallworth yelled.

A struggle ensued, during which Barton "physically assaulted Ms. Stallworth by shoving her down on a couch," according to the lawsuit.

After Stallworth had been arrested, video shows Jermari asking Barton to see the statute he claims Stallworth violated: "I actually want to see this law in play," he says. 

The statute, which Barton pulled up on his phone, allows police to "stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."

"I don't see where it says anything about an I.D.," Jermari says. "It says your name, address, and an explanation."

"She failed to identify," Barton replied.

"I mean it doesn't specifically, you know, say an I.D.," Jermari added before Barton cut in: "I know, but I'm not going to argue with you either."

Despite Stallworth's son pointing out the obvious—that Stallworth hadn't broken the Alabama identification law—she was still charged with "obstruction, resisting arrest, and eluding," according to the lawsuit. The charges have since been dropped.

On March 8, Mayor of Andalusia Earl Johnson issued a formal apology to Stallworth, saying, "I would like to apologize to Twyla Stallworth for her arrest in February. All charges against Ms. Stallworth are being dropped." Johnson noted that Barton "has been disciplined for failing in his duty to know the law."

This is far from the first time that Alabama cops have misinterpreted the state's "stop and identify" law, wrongfully arresting individuals for not forking over their photo identifications. A man who was watering his neighbor's plants was arrested after refusing to give an officer his I.D. in May 2022. Last October, a federal court refused to grant qualified immunity to police officers who arrested a mechanic who refused to provide a government I.D. in 2019.

"The police are free to ask questions, and the public is free to ignore them," wrote 11th Circuit Court of Appeals Judge Charles R. Wilson in that last case. "Any legal obligation to speak to the police and answer their questions arises as a matter of state law."

The post Alabama Woman Arrested for Refusing To Give a Cop Her I.D. appeared first on Reason.com.

Less than a month after the Alabama Supreme Court ruled that frozen embryos created for in vitro fertilization treatment are children, Alabama Gov. Kay Ivey has signed a law protecting access to IVF treatment in the state. 

In February, the Alabama Supreme Court handed down a controversial ruling, deciding that frozen embryos would count as children under a 19th-century Alabama wrongful death statute. Justice Tom Parker used extensive quotes from the Bible and Christian theology to justify his decision. "The doctrine of the sanctity of life is rooted in the Sixth Commandment," which prohibits murder, Parker wrote. "All human beings bear the image of God," he continued, "and their lives cannot be destroyed without effacing his glory."

IVF is an infertility treatment involving the fertilization of multiple eggs with the goal of inserting them afterward in a woman's uterus, where they may hopefully implant and grow into a healthy baby. As Reason's Ronald Bailey put it shortly after the ruling was released, "Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy." Parents often have to choose whether to leave their remaining frozen embryos in storage (at a cost) or to have the IVF clinic discard them.

The ruling caused near-immediate chaos, with three IVF providers in the state shutting down operations, citing confusion over the legal implications of the court's decision. The ruling quickly garnered widespread outrage, even among many who are avowedly pro-life.

"We want to make it easier for people to be able to have babies, not…make it harder….And the IVF process is a way of giving life to even more babies," Texas Gov. Greg Abbott told CNN in February. "What I think the goal is is to make sure that we can find a pathway to ensure that parents who otherwise may not have the opportunity to have a child will be able to have access to the IVF process."

Soon after the ruling was handed down, Alabama legislators moved quickly to introduce bills that would protect access to IVF treatment in the state. Senate Bill 159, which Ivey signed Wednesday, ultimately passed with a large bipartisan majority. 

"No action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization," the bill states. "No criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos."

"The overwhelming support of [the bill] from the Alabama Legislature proves what we have been saying: Alabama works to foster a culture of life, and that certainly includes IVF," Ivey said in a statement on March 6. "I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately."

After the bill's signing, two of the three closed clinics announced that they would restart IVF treatments.

Alabama's IVF protection bill will likely assuage fears that access to fertility treatments could be seriously impacted by state-level court rulings. Even in a state where abortion is banned from conception, attacks on IVF remain incredibly unpopular—and stridently pro-life legislators still recognize the importance of safeguarding fertility medicine. 

The post Alabama Governor Signs Bill Protecting IVF Treatments appeared first on Reason.com.

Very rarely do you see anyone prevail in court when any form of forfeiture is in play. The forfeiture litigation deck is firmly stacked in favor of the government, which rarely needs anything approaching actual proof to walk off with someone’s property.

It’s even more rare to see someone awarded damages in a civil lawsuit against law enforcement officers. In most cases, qualified immunity terminates the lawsuit. If qualified immunity is not awarded, agencies and governments are often swift to offer plaintiffs no-fault settlements that allow the accused to walk away from the lawsuit without having to admit any wrongdoing, much less pay out of their own pockets for their misdeeds.

This case contains both rarities. Not only does it involve regular people securing some sort of justice for their violated rights, but the underlying set of rights violations included officers walking out the home they’d raided without a warrant with all the valuables they could get their hands on, including $4,000 in cash.

Here’s how the raid went down, as recounted by C.J. Ciaramella for Reason back in 2019.

On January 31, 2018, a Randolph County sheriff’s deputy showed up at the home of Greg and Teresa Almond in Woodland, Alabama, to serve Greg court papers in a civil matter.

Greg, 50, wasn’t home, but his wife Teresa told the deputy he would be back before long. About two hours later, after Greg had returned home, he heard loud knocking on the door. He remembers shouting “hang on” and walking toward the door when it suddenly flew open. The next thing he knew he was on the floor—ears ringing, dazed, wondering if he’d just been shot.

Several deputies from the Randolph County Sheriff’s Department had kicked in his front door and thrown a flashbang grenade at his feet. The officers handcuffed and detained the couple at gunpoint, then started searching their house. The deputy from earlier had reportedly smelled marijuana, and so a county drug task force was descending on the Almonds’ home, looking for illegal drugs.

The supposed odor of marijuana eventually led the deputies to a small marijuana plant, a few scattered leaves, and a single prescription pill that was not located in its bottle. The home invasion also led deputies to other stuff they wanted, but had no legitimate reason to take. They took the cash they found in the house, a wedding ring, some guns, a coin collection, and a couple guitars.

To the Sheriff’s Office, the $4,000 probably seemed insignificant. But it was pretty much all they had. They were in the middle of refinancing an agricultural loan to ensure their chicken farm remained solvent. Thanks to being forced to spend most of two days in jail, they missed their refinancing deadline. That ultimately resulted in the couple losing their house. They were residing in an insulated shed by the time the court took up their lawsuit.

More than four years after the raid, the couple has finally secured some form of justice. The $1 million in damages awarded by the jury will likely be appealed by the sheriff’s department, but for now, that’s what a jury has said the couple is entitled to.

The judge overseeing the case issued an order [PDF] along with the directed verdict, stating that the “rarity” of a directed verdict in a civil rights lawsuit necessitates some explanation.

The explanation reveals just how much of a blatant violation of rights this raid was. Deputy Kevin Walker had no excuse for his actions.

During trial, Judge Amy Newsome testified that she never issued a telephonic warrant to Defendant Walker, or to the drug task force, on January 31, 2018, for a search of the Plaintiffs’ home. She also testified that she did not tell Walker that he had a warrant. In addition, Defendant Walker testified that Judge Newsome did not tell him that he had a telephonic search warrant, although she did tell him that he probably had enough for a warrant.

He also acknowledged that the requirements for a telephonic warrant were not satisfied, that he did not have a search warrant, and that it was a warrantless search. Given this undisputed testimony, even when considered in the light most favorable to Defendant Walker, the search of the Plaintiffs’ home was without a warrant, even a defective one, and therefore violated the Fourth Amendment. No reasonable jury could have concluded otherwise as there was no question of fact on this issue.

Yeah. That’s inexcusable. And yet, Walker had an excuse: good faith. He attempted to avail himself of the good faith warrant exception. But, as the judge points out, good faith relies on someone believing a valid warrant has actually been issued, not just thinking they could probably obtain one at some point in the future. On top of that, the good faith exception invoked by the deputy only applies in criminal trials, not civil trials. Even if it did apply in this content, Walker would still lose. (Emphasis in the original.)

But even if the good faith exception to the exclusionary rule can apply in the civil context, the good faith exception still would not apply in the circumstances of this case. First, per Judge Newsome and Defendant Walker, there was no warrant, telephonic or written, and thus there was nothing upon which Walker could rely in good faith. In other words, because Defendant Walker knew that he did not have a warrant at the time of the incident, the good faith exception does not apply.

And the cases Walker cites are inapplicable to the facts here: Taylor, Moorehead, Henderson,
and Ganzer all involved situations where written warrants were issued, not situations where a warrant was never issued in the first place. And secondly, as a matter of law, given the undisputed facts concerning the non-existence of a warrant, it was objectively unreasonable for an experienced law enforcement officer to believe that he could search an occupied home when no warrant existed, when no judge told him that he had a warrant, when he was merely told that he had enough for a warrant, and when none of the formalities or requirements associated with a telephonic or written warrant were followed.

As the court notes in this order, it fully expects Walker to raise the other form of good faith in a future motion, indicating that while a jury has already said the couple is owed $1 million in damages, the court has yet to issue an order blessing that payout. Hopefully, if nothing else, this utter failure to salvage a blatantly unconstitutional search will urge Walker’s employers to cut a check, rather than continue to embarrass itself in court.

The sorry history of anti-miscegenation and forced sterilization laws in the U.S. provides ample evidence that preemptive government interference in the reproductive decisions of its citizens should be strongly rejected. In a free society, the default should be that individuals are best situated for weighing the costs and benefits, moral and material, with respect to how, when, with whom, and whether they choose to become parents.

The now infamous Alabama Supreme Court decision earlier this month essentially outlawing the use of in vitro fertilization (IVF) by would-be parents highlights the consequences of unwarranted government meddling in reproductive decisions all too well. At its most basic, IVF is a treatment for infertility involving the fertilization of eggs in a petri dish with the goal of installing them afterward in a woman's womb where they have a chance to implant and hopefully develop into a healthy baby. Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy.

Some 12 to 15 percent of couples in the U.S. experience infertility. Fortunately, since 1981 many infertile folks have been able to avail themselves of IVF and assisted reproduction techniques with the result that more than 1.2 million Americans have been born using it. Currently, about 2 percent of all babies in the U.S. are born through assisted reproduction. A 2023 Pew Research poll reported that "four-in-ten adults (42%) say they have used fertility treatments or personally know someone who has." Given the wide public acceptance and ubiquity of IVF, it is no surprise that a new Axios/Ipsos poll finds that two-thirds of Americans oppose the Alabama court ruling that frozen IVF embryos are the equivalent of born children.

The moral intuition that embryos are not people implied by these poll results reflects what research has revealed about the fraught and complex biology of uterine implantation and pregnancy. In both IVF and natural conception most embryos will not become babies. Research estimates that between 50 to 70 percent of naturally conceived embryos do not make it past the first trimester. In other words, one foreseen consequence of conception through sexual intercourse is the likely loss of numerous embryos.

In his 2012 Journal of Medical Ethics article, University of Illinois Chicago philosopher Timothy Murphy argued that the moral good of the birth of a child counterbalances the unwanted but nevertheless foreseen loss of other embryos in both natural and IVF conception. Again, polling suggests that most Americans endorse this moral reasoning.

In another 2012 article speculating on the metaphysical ramifications of endowing embryos with souls, Murphy basically recapitulates the line of reasoning in my 2004 article asking, "Is Heaven Populated Chiefly with the Souls of Embryos?" There I suggest that "perhaps 40 percent of all the residents of Heaven were never born, never developed brains, and never had thoughts, emotions, experiences, hopes, dreams, or desires."

Murphy similarly concludes, "Since more human zygotes and embryos are lost than survive to birth, conferral of personhood on them would mean—for those believing in personal immortality—that these persons constitute the majority of people living immortally despite having had only the shortest of earthly lives."

Metaphysical conjectures aside, former President Donald Trump clearly knows where most Americans stand on IVF. "We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America," he posted on Truth Social. He's right.

Now, the 124 denizens of the House of Representatives (all Republicans) who cosponsored just over a month ago the Life at Conception Act are scrambling to explain that, no, they did not really mean that every frozen IVF embryo is a "human person" entitled to the equal protection of the right to life. As a butt-covering move, Rep. Nancy Mace (R–S.C.) is circulating a House resolution "expressing support for continued access to fertility care and assisted reproduction technology, such as in vitro fertilization."

More substantially, Sen. Tammy Duckworth (D–Ill.) is pushing for the adoption of the Right to Build Families Act that states, "No State, or official or employee of a State acting in the scope of such appointment or employment, may prohibit or unreasonably limit…any individual from accessing assisted reproductive technology."

The post Parents, Not the Government, Should Make IVF Decisions appeared first on Reason.com.

Enlarge / An electron micrograph of norovirus. (credit: Getty| BSIP)

Officials in Alabama have shut down an elementary school for the rest of the week and are conducting a deep clean after 773 of the school's 974 students were absent Wednesday amid an explosive outbreak of gastrointestinal illness.

Local media reported that only 29 students were absent from Fairhope West Elementary School on Tuesday. However, the situation escalated quickly on Wednesday as word spread of a stomach bug going around the Gulf Coast school. A spokesperson for the county school district told AL.com that 773 students and 50 staff were absent Wednesday. It's unclear how many of the absences were due to sickness or precaution.

Health officials are now investigating the cause of the gastrointestinal outbreak, collecting specimens for testing. So far, officials are working under the assumption that it is norovirus, a highly infectious gastrointestinal bug that can survive hand sanitizer and transmit easily from surfaces, food, and water. The symptoms of the unidentified illness align with norovirus: vomiting, diarrhea, abdominal cramps, and nausea.

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Enlarge / Nitrogen tanks holding tens of thousands of frozen embryos and eggs sit in the embryology lab at New Hope Fertility Center in New York City on December 20, 2017. (credit: Getty | Carolyn Van Houten)

The University of Alabama at Birmingham (UAB) health system is halting in vitro fertilization treatment in the wake of a ruling by the state's Supreme Court on Friday that deemed frozen embryos to be "children," The ruling opens up anyone who destroys embryos to liability in a wrongful death lawsuit, according to multiple media reports.

The announcement—the first facility to report halting IVF services—is the much-feared outcome of Friday's ruling, which was widely decried by reproductive health advocates.

"We are saddened that this will impact our patients' attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments," UAB said a statement to media. The statement noted that egg retrieval would continue but that egg fertilization and embryo development are now paused.

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Frozen embryos are "children" under Alabama law, the state's Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.

Frozen embryos are "unborn children" and "unborn children are 'children,'" Justice Jay Mitchell wrote in the court's main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.

The ruling seems to represent a turn toward judicial activism among members of Alabama's Supreme Court, which for a long time held that the law's text could not justify reading it to include "unborn children"—let alone frozen embryos.

It also portends a creeping Christian conservatism into court decisions, with Alabama Supreme Court Justice Tom Parker citing the Bible in his legal reasoning. In a concurring opinion, Parker justifies prohibitions on murder not by invoking classical liberal principles, like natural rights, but rather on the basis of "Man's creation in God's image" and the "you shall not murder" edict of the Sixth Commandment. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Parker writes.

Embryos Destroyed 

The decision stems from suits brought by former patients of the Center for Reproductive Medicine in Mobile, Alabama. These patients—couples James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne—had used in vitro fertilization (IVF) to successfully have several children and still had some embryos stored in the Center's "cryogenic nursery." In December 2020, a patient at the Mobile Infirmary Medical Center (which the Center was a part of) entered the cryogenic nursery unauthorized and proceeded to remove and then drop some of their frozen embryos, destroying them.

The couples sued the fertility clinic and the hospital, citing Alabama's Wrongful Death of a Minor Act. This 1872 law lets parents sue for monetary damages "when the death of a minor child is caused by the wrongful act, omission, or negligence of any person."

The LePages and the Fondes brought a joint lawsuit, and a separate suit was filed by the Aysennes. Both suits alleged negligence and the Aysenne suit also alleged wantonness and breach-of-contract.

A trial court granted the Center's motion to dismiss all but the breach-of-contract claim. "The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "'child,'" the lower court held.

The three couples appealed, and their suits were consolidated for Supreme Court purposes.

No Exceptions for "Extrauterine Children" 

In a first-of-its-kind decision, the Alabama Supreme Court decided that frozen embryos are, indeed, children, rejecting the lower court's dismissal of the couples' wrongful death claims.

In the court's main opinion, Justice Jay Mitchell referred to frozen embryos in turn as "embryonic children" and "extrauterine children."

While the state's Wrongful Death of a Minor statute doesn't explicitly include "unborn children"—let alone "extrauterine children"—in its purview, "the ordinary meaning of 'child' includes children who have not yet been born," asserted Mitchell.

Furthermore, Alabama's Supreme Court "has long held that unborn children are 'children' for purposes of Alabama's that law," he wrote. The central question in this case, said Mitchell, is "whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed."

The couples in this case raised some truly ridiculous arguments for why such an "exception" shouldn't exist. They argued that a finding that the Wrongful Death of a Minor Act doesn't apply to unborn children (including frozen embryos) would mean partial-birth abortions are legal, since the baby would no longer be in utero but would also not be fully born. They also suggested it would OK murdering hypothetical toddlers entirely gestated in artificial wombs, since such children—no matter how old they got—would not technically have been born.

Amazingly, the majority lent credence to these crazy arguments. They are "weighty concerns," wrote Mitchell, albeit ones that needn't be resolved at this time since "neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude extrauterine children from the Act's coverage."

Dissent, Dissent, Dissent

Not all of the justices agreed with the majority's logic, and some offered quite scathing rebukes of it.

For instance, Justice Brady E. Mendheim—who concurred with the result of the main opinion but disagreed with some of its reasoning—doesn't think that it's so clear cut that "child" includes frozen embryos. For one thing, the wrongful death statute in question was written a century before IVF was even a scientific possibility. Furthermore, other parts of Alabama law, including the 2019 Human Life Protection Act, explicitly define an unborn child as a human being in utero.

Justice Will Sellers also rejected the idea that this is an easy and obvious call. "Any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of 'person,' much less the definition of 'minor child,'" he wrote. Rather, the inclusion of in utero children in certain statutes was there to allow for punishment of violence perpetrated against pregnant women. "To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain," Sellers added.

Meanwhile, Justice Greg Cook—who dissented in full from the main opinion—rejects the idea that the 1872 law meant to include fetuses and zygotes in its definition of children, even when they are in utero.

The main opinion suggested that the "leading dictionary of that time defined the word 'child' as 'the immediate progeny of parents' and indicated that this term encompassed children in the womb," notes Cook. But if you look at the full entry in the cited dictionary, it indicates the opposite, saying "the term is applied to infants from their birth."

Furthermore, interpreting the Wrongful Death Act to include unborn children is a recent phenomenon. "There is no doubt that the common law [in 1872] did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability," wrote Cook. "In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a 'minor child' who could be killed."

Thus, applying the wrongful death act to the loss of frozen embryos runs counter to the philosophy of originalism (the idea, common among libertarians and conservatives, that laws should be interpreted only as they were originally intended) and closer to the progressive idea of a malleable "living Constitution," suggests Cook. And he's not a fan. "It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it," Cook writes. If the legislature thinks the law needs expanding, it can do so.

Cook and Mendheim both object to characterizing the defense's position as seeking an "exception" for frozen embryos, because to declare it an exception to the state's protection of minor children assumes that embryos are minor children—a point that's far from a given. And they both pan the tacit acceptance of the out-there hypotheticals offered by the patients.

"The main opinion ignores the fact that it is not now—or for the foreseeable future—scientifically possible to develop a child in an artificial womb so that such a scenario could somehow unfold," writes Mendheim. Should that become possible, "the answer to this futuristic hypothetical is simple," writes Cook: "the Legislature can address future technologies and can do so far better than this Court."

Bibles and Broad Reach

Pointing out that no other state has interpreted wrongful death laws this way—and a number have specifically rejected it—Cook suggests that being "the sole outlier" should "cause us to carefully reexamine our conclusions."

He concludes the decision could end IVF in Alabama, since "no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages."

This fear was echoed by the defendants in this case, who told the court a finding that the statute includes frozen embryos could make IVF prohibitively expensive.

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, called the court's decision "terrifying" for people "who need in-vitro fertilization to build their families."

Chief Justice Parker's opinion suggests that their fears are not unfounded.

His opinion is chilling in the way is showcases the theocratic underpinnings on which he sees Alabama governance resting. Pointing to a 2018 amendment declaring it "the public policy of this state to recognize and support the sanctity of unborn life," he notes that the term sanctity can be defined as "holiness of life and character," godliness, and "the quality or state of being holy or sacred." He goes on to cite the King James Bible, noting that in Genesis man's creation was described as being "in the image of God." Its on these foundations that the legal treatment of frozen embryos should rest, he suggests.

According to Parker, this would not mean the end of IVF in Alabama. But it could mean changes that would seriously upend the IVF process.

In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women's bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman's body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.

Treating embryos as having the full legal rights of children could imperil all of these practices.

In Italy, "cryopreservation of embryos" is banned "except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation," writes Parker. He also points approvingly to countries with other stringent regulations, such as a rule limiting the number of embryos that can be transferred at a time.

"These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life," Parker concludes, writing that "certain changes to the IVF industry's current creation and handling of embryos in Alabama will result from this decision."

Even if the ruling doesn't end IVF in Alabama, it could pave the way for changes that make fertility treatments more difficult, time-consuming, expensive, and impractical.

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Enlarge / January 17, 2024, Berlin: In the cell laboratory at the Fertility Center Berlin, an electron microscope is used to fertilize an egg cell. (credit: Getty | Jens Kalaene)

The Alabama Supreme Court on Friday ruled that frozen embryos are "children," entitled to full personhood rights, and anyone who destroys them could be liable in a wrongful death case.

The first-of-its-kind ruling throws into question the future use of assisted reproductive technology (ART) involving in vitro fertilization for patients in Alabama—and beyond. For this technology, people who want children but face challenges to conceiving can create embryos in clinical settings, which may or may not go on to be implanted in a uterus.

In the Alabama case, a hospital patient wandered through an unlocked door, removed frozen, preserved embryos from subzero storage and, suffering an ice burn, dropped the embryos, destroying them. Affected IVF patients filed wrongful-death lawsuits against the IVF clinic under the state's Wrongful Death of a Minor Act. The case was initially dismissed in a lower court, which ruled the embryos did not meet the definition of a child. But the Alabama Supreme Court ruled that "it applies to all children, born and unborn, without limitation." In a concurring opinion, Chief Justice Tom Parker cited his religious beliefs and quoted the Bible to support the stance.

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