On March 6, 2024, Alabama Governor Kay Ivey signed a GOP-proposed bill to protect in vitro fertilization after weeks of backlash prompted by a controversial state Supreme Court ruling that embryos are considered children. (NBC News online. Alabama governor signs bill to protect IVF treatments into law)
The enacted legislation doesn’t define or clarify whether under state law frozen embryos created via IVF have the same rights as children. Rather, the narrowly tailored bill is designed to protect doctors, clinics and other health care personnel who provide IVF treatment and services by offering such workers civil and criminal “immunity.” (Alabama governor signs bill to protect IVF treatments into law)
The bill says that “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.” (Alabama governor signs bill to protect IVF treatments into law)
However, companies that provide items that are integral to the IVF process could still face civil suits — but not criminal prosecution — if their products are determined to damage or destroy embryos. (Alabama governor signs bill to protect IVF treatments into law)
But why was Legislative action needed....
There are at least three reasons: Supreme Court Justice Alito's conservative religious ideology; Alabama's Conservative Laws; and the Moral, Social, and Professional Concerns of Physicians in the 1800s.
Supreme Court Justice Alito's conservative religious ideology:
The obvious reason is the Dobbs (Dobbs v. Jackson [Miss.] Women's Health Org.) decision that overturned Roe v. Wade and returned abortion law to the states. One of the factors used by Justice Alito when writing the primary opinion was the 34 anti-abortion laws written in the 1800s by States and Territories that became States. (Each of the 34 enacted anti-abortion laws are stated in Appendices A & B of the Dobbs Decision. Refer to the "Dobbs Decision" page or "History of Abortion in U. S." page of this website.)
I read the article "The Originalist Jurisprudence of Justice Samuel Alito" by J. Joel Alice (Harvard Journal of Law & Public Policy, Spring 2023; https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2023/04/Alicea-Joel-vFF.pdf). The article indicates that while Justice Alito sees himself as a "practical originalist", "his opinions tend to rely non-originalist arguments." The article also reported that Justice Alito will (1) rely on precedent unless one of the parties has asked. and (2) try to determine " [h]ow..the terms of a statute" would "have been understood by ordinary people at the time of enactment".
Comment:
According to the Harvard Journal of Law & Public Policy article, originalist ... core beliefs are: (1) the meaning of constitutional provisions is fixed the moment they are ratified, and (2) the outcomes of constitutional controversies must be consistent with the original meaning (though originalists disagree about the role of precedent with respect to this latter proposition).
Dobbs involved the "Mississippi Gestational Age Act' that provided that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform ... or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” The "petitioners defend the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review."
The petitioners, therefore, specifically requested that precedent be reviewed and reversed. This is exactly what the Dobbs decision did.
In Dobbs, Alito wrote "The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments."
The Dobbs opinion referenced the number of anti-abortion laws in effect during the 1800s. The Appendices within Dobbs chronologically list those laws. I discuss the history behind the 1800 anti-abortion laws below. (Moral, Social, and Professional Concerns of Physicians in the 1800s section)
But, if we think about the period in which the Constitution was written, African Americans were viewed as 3/5 of a person while women's rights were never mentioned. The Women's Suffrage movement started in 1869 and it wasn't until the 19th Amendment was ratified in August 1920 that women gained the rights and responsibilities of men. (Women’s Suffrage. History.com. https://www.history.com/topics/womens-history/the-fight-for-womens-suffrage)
Catholic and Protestant Churches were silent on the issue of abortion in the 1800s. The early anti-abortion laws resulted from white, native-born, Protestant doctors' moral conflict between their training to save lives and performing abortions to terminate pregnancies; their desire to eliminate competition from the midwives who performed most abortions at the time; and, their misogyny against women's desires to abandon traditional roles. (A Social History of Christian Thought on Abortion: Ambiguity vs. Certainty in Moral Debate article. Full citation at Moral, Social, and Professional Concerns of Physicians in the 1800s section)
Therefore, I believe that Justice Alito's opinion in Dobbs v. v. Jackson [Miss.] Women's Health Org. was rather disingenuous and appeared to have been based primarily on his conservative religious leanings. The first anti-abortion laws, enacted during the 1800s, were enacted to eliminate competition from the midwives who performed most abortions. It wasn't until the 19th Amendment was ratified in August 1920 that women gained the rights and responsibilities of men. Finally, Catholic and Protestant Churches were silent on the issue of abortion in the 1800s.
Alabama's Conservative Pro-Life Laws:
When deciding that destruction of embryos in cryogenic state qualified as a "child" or "person", the Alabama Supreme Court relied on decisions in 2 prior Court cases as well as 2 State laws. The Court decisions were in 2011 and 2012 while law was enacted in 1872 and the other in 1997. A review of these prior decisions as well as each law revealed that the Supreme Court's decision was correct.
Ergo, a specific law was required. Unfortunately, this law only addressed liability when embryos in cryogenic state were destroyed. It did not address either the State's 1872 "Wrongful Death of a Minor Act" or equating embryo's in cryogenic state as a "child" or "person". This more than likely explains why 2 of the clinics maintaining embryos in cryogenic state have not re-opened.
The Court cases relied upon were Mack v. Carmack (2011) and Hamilton v. Scott (2012). In both cases, the Alabama Supreme Court held that the term "child" includes children who have not been born, whether the "child" was viable or not. However, the State's 1872 "Wrongful Death of a Minor Act" does not define the terms "child" or "minor".
The "Wrongful Death of a Minor Act" permits "parents of a deceased child to bring a claim seeking punitive damages '[w]hen the death of a minor child is caused by a wrongful act, omission, or negligence of any person' provided that they do so within six months of the child's passing".
A Justia Law internet search for Alabama Code 1975, Section 26-23-3 identified the Alabama Partial-Birth Abortion Ban Act of 1997. Section 26-23-3 states "[a]ny physician who knowingly performs a partial-birth abortion within this state and thereby kills a human fetus shall be guilty of a Class C felony and upon conviction thereof shall be punished as prescribed by law."
Moral, Social, and Professional Concerns of Physicians in the 1800s:
Source:
A Social History of Christian Thought on Abortion: Ambiguity vs. Certainty in Moral Debate
The American Journal of Economics and Sociology (JSTOR); https://www.jstor.org/stable/45129365
Ignacio Castuera
Vol. 76, No. 1, More Than Two Sides: Abortion in Historical Perspective (JANUARY, 2017), pp. 121-227 (107 pages)
Published By: Wiley
Hypocrisy of "Regular" Male Physicians in 1800s.
...In the United States, early-term abortions were generally legal in the 18th and early 19th centuries, although they were also probably rare, given the limited means of performing them. Common law often forbade abortion only of a "quickened" fetus, which was determined by the woman to be the time she first felt movement of the fetus inside her..... In 1800..., the law was silent about abortions performed before quickening....
...By the 1830s or 1840s, abortion had become a much more common procedure. This situation became intolerable to the "regular" male physicians, the ones who formed the American Medical Association (AMA) in the 1850s. The law not only tolerated early-term abortions, but there were also few convictions for late-term abortions. Doctors were offended on moral grounds, not so much because of their Protestant affiliations, but because they were trained to save lives....
...Based on this logic, some doctors came to view all abortion as a form of murder. Since the majority of Americans did not see the issue in the same categorical terms, the AMA launched a campaign in 1857 to persuade the public and another one in 1860 to influence state legislation (Dyer 2006). As they did so, the doctors inadvertently revealed that their high-minded moral concern for unborn children was tinged with self-interest, racism, and misogyny....
...The statements by AMA doctors in the 19th century that life begins at conception and that all abortion is murder have been cited as evidence that "science" supports the Catholic position that a fertilized egg is a full human being, not merely a potential human. But there are many reasons to doubt that doctors were motivated purely out of concern for the life growing inside a woman....
...The AMA's history of indifference to contraception reveals a lack of sincerity about responding to the medical needs of women. Since contraceptives could have helped women avoid the necessity of an abortion, a genuine desire to end the "murder" of fetuses would have entailed an active program to promote contraception....
"Regular" Doctors v. Midwives
...For centuries, a birthing woman oversaw her birth process. She chose the people who would assist her, and that normally meant a midwife. The same choice would have been true for any problems during pregnancy. Men were not invited....
...[T]hat changed...in the 19th century as male doctors, known as "regulars," came to see that their survival depended on entering the domain of obstetrics. At that point, their jealousy of women's medicine became a political crusade....
...The "regulars," primarily treated patients by bleeding them or by poisoning them with calomel (mercury), laudanum, and similar drugs. Although doctors were trying to heal their patients, not kill them, the latter was often the outcome.... In the United States, in 1881, the death rate from abortion was 6 percent; in 1900, the death rate from giving birth was over 8 percent, 25 percent higher than abortion....
Note:
...The disparity between male and female health workers became even wider by the 1920s and 1930s, when the male regulars had gained a near-monopoly over medical practice.....[t]he death rate of white women in childbirth attended by (white male) doctors in a hospital in Lexington, Kentucky from 1927 to 1935 was 800 to 900 per 100,000, whereas the rate in a clinic operated by the Kentucky Frontier Nursing Service (presumably staffed by female nurses) was 66 per 100,000 (66 v. 800 to 900 = 12.1x - 13.6x)....
...When the threat of midwives was finally out of the way in the 20th century, doctors would reverse themselves on questions of contraception and abortion, by insisting that they are purely medical issues, requiring the management of qualified physicians.... The AMA did not support teaching of contraceptive practices in medical school until about 1937...
...The AMA's crusade from 1860 to 1880 resulted in laws being adopted or amended in 34 out of 40 states and territories, making abortion a felony at any stage during a pregnancy. Since legislatures responded to the urging of the AMA, most laws included an exception for therapeutic abortions - ones that regular physicians deemed necessary. The laws were not completely ignored, but they were not fully enforced either.... [T]he percentage of pregnancies terminated by abortion rose from around 25 percent in 1860 to 34 percent in 1880 to 50 percent in 1921.
Misogyny of "Regular" Physicians in 1800s
...By the 1840s, industrialization, urbanization, and other social forces gave American women greater autonomy and greater confidence in making their own choices in the private sphere. One result was a dramatic increase in the number of abortions performed and a decline in fertility. Given an implicit choice in matters of childbearing, women chose quality over quantity....
... Even while state legislators were passing liberalized property and divorce laws, forcing some of the state universities to admit women, and debating women's suffrage in the 1860s and 1870s, most doctors were bitterly and stridently condemning . . . the unwillingness of American wives to remain in their "places" bearing and raising children...
...Another social factor that may have influenced many physicians in their 19th-century crusade against abortion was their attitudes about women's rights. Although women did not gain the right to vote in the United States or the United Kingdom until the early 20th century, the movement to gain equal rights for women began in the middle of the 19th century....
...Anxiety about "race suicide" was particularly acute for regular physicians because they were upper-class, native-born, white Protestants (of British & Northern European ancestry). ...Protestants' fears about not keeping up with the reproductive rates of Catholic immigrants played a greater role in the drive for anti-abortion laws in nineteenth-century America than Catholic opposition to abortion did....
Churches Provided Little Support for Anti-Abortion Effort in mid-to-late 1800s.
... Despite all of the racist, misogynist, and economic factors that motivated the doctors of the American Medical Association to launch a crusade against abortion in 1857, the nominal reason the AMA strongly opposed both early- and late-stage abortions was entirely on moral grounds: to protect the unborn. If that was the genuine motivation of the campaign, it remains something of a mystery why churches in the United States provided so little support for it. Neither Protestants nor Catholics were visibly involved in the anti-abortion programs of mid-to-late 19th-century America....
...The Catholic and Protestant theological differences on contraception and abortion were based on... views that regarded "natural" methods as moral. Where they differed was on the "social question." Protestants increasingly came to believe in the perfectibility of humanity through scientific intervention, whereas Catholics expressed skepticism, in large part because Catholic immigrants were the demographic groups defined as "imperfections" that needed to be phased out through eugenic breeding....
...The Old School Presbyterians and the Congregationalists (mostly in New England) adopted resolutions condemning abortion. But, for the most part, Protestants churches did not support the AMA's efforts, and those that did "appeared to be more worried about falling birthrates among their adherents than about the morality of abortion itself'....
Post Summary:
On March 6, 2024, Alabama Governor Kay Ivey signed a GOP-proposed bill to protect in vitro fertilization after weeks of backlash prompted by a controversial state Supreme Court ruling that embryos are considered children. The law was narrowly crafted to protect doctors, clinics and other health care personnel who provide IVF treatment and services; however, the legislation does not define or clarify whether under state law frozen embryos created via IVF have the same rights as children.
But why was the law necessary?
In this Post, I have provided detailed evidence for three: Supreme Court Justice Alito's conservative religious ideology; Alabama's Conservative Laws; and, the Moral, Social, and Professional Concerns of Physicians in the 1800s.
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