On Feb. 20, the Alabama State Supreme Court issued a ruling that deemed fertilized eggs, or embryos, as children under state law. The case involved a lawsuit brought by couples whose embryos were unintentionally destroyed at a Mobile hospital — and who wanted the alleged perpetrator prosecuted under the state’s wrongful death statutes. In an 8-1 decision, the justices ruled in favor of the couples, effectively giving the embryos the same legal status as people and throwing the state’s and the country’s reproductive health services into disarray.
Because in vitro fertilization (IVF) typically requires the production and transfer of multiple embryos, several Alabama hospitals and clinics have already halted IVF procedures, and experts say the ruling could make the reproductive treatment impossible. Since then, Republicans across the United States have been scrambling to assure Americans that IVF is not under assault. Donald Trump came out and said he supports the procedure “for couples who are trying to have a precious little beautiful baby” — but only after taking a string of broadsides from the White House.
Like the former president, legal scholars have just begun to wrestle with the implications of a ruling that equates fertilized eggs with flesh-and-blood children. But other parts of the decision are raising eyebrows for different reasons — most notably a concurring opinion by Chief Justice Tom Parker defending the decision in explicitly Biblical and Christian theological terms.
In a system that values the separation of church and state, the injection of religious language into a court decision is stunning.
Here’s just one snippet: “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.”
In a system that values the separation of church and state, the injection of religious language into a court decision is stunning. “The substance of the ruling is not a surprise at all,” says University of Colorado Law Professor Jennifer Hendricks. “But the language he used, it’s completely out of bounds — unusual to an extreme degree.” And all the more so in a pluralist society where not everyone believes in the Bible.
But even if we set that giant problem aside, it turns out that Parker — who repeatedly quotes Christian scripture in his speeches and publications — is not only a problematic judge. He’s also an inept amateur theologian who is either willfully or truly ignorant of the religious sources he is quoting.
Here’s his argument in brief: Genesis 1 states that God “created man in his own image.” (I’ll follow Parker in quoting the King James Version of the Bible even though there are many more recent, and accurate, translations.) That man is created in God’s image seems to grant him special protection from harm. As the Biblical author writes in Genesis 9:6, “Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man.” Because embryos are also made in the image of God, we are to presume, people who destroy them also deserve severe punishment.
And yet here’s where the problems begin. As Robert Alter writes in his magisterial new translation of the Hebrew Bible, Genesis 9 seems to refer very specifically to the sin of murder. Because the thing being spilled is blood — and not the liquid nitrogen in which embryos are normally suspended. Further, the punishment for murder is not “the wrath of a holy God” but rather reciprocal bloodshed. In sum, this is likely a passage about the death penalty as just punishment for homicide, and it’s definitely not about IVF.
Parker is not only a problematic judge. He’s also an inept amateur theologian who is either willfully or truly ignorant of the religious sources he is quoting.
But that’s not the only issue with Parker’s heavy reliance on all this image-of-God language, because when the very theologians he cites pick up this same theme, they use it for purposes that directly contradict his own.
Take as one example the most important Catholic thinker, Thomas Aquinas, whom Parker quotes repeatedly. Aquinas believes — rather infamously, at least for anti-abortion Christians — that life begins not at conception but rather at least 40 days after. And he does so at least in part because of his reading of Genesis 1.
You see, Aquinas’s thinking about human life is shaped by his theory of hylomorphism. In simplest terms, a human being is both matter and form. Sperm and egg are the stuff of the human, but they are not the shape — or image! — of the human. And it’s not until you have both that you get a full-fledged person, which for Aquinas happened at around 40 days of pregnancy. (For more on all of this, read medieval philosophy scholar Fabrizio Amerini’s work.)
In other words, when Parker brings in Aquinas, the Church Father pokes a big old hole right in the side of his argument.
Or consider St. Augustine, whom Parker also quotes, and who also has quite a lot to say about man — but only men — being created in God’s image. In De Trinitate, Augustine interprets Genesis 1:27 very literally to suggest that women are explicitly not created in God’s image. (He goes on to argue that this is why women are required to cover their heads. I will await Judge Parker’s legal defense of headscarves.)
Are we to believe that the Alabama ruling only applies to male embryos? I doubt it, but I also doubt Parker cares that much — because his readings of scripture and theology are by turns dishonest, selective and ignorant.
And they have no place in our legal system.
