A version of the following was originally posted February 23, 2024, on the blog of Edward Mechmann “Stepping Out of the Boat.” It is reprinted with permission.

The recent decision by the Alabama Supreme Court on frozen embryos has gotten a lot of attention. Not all of the reactions, commentaries, and analysis have been well-founded. The result is more confusion about how the law works, what that means for unborn children, and what we as pro-lifers need to do.

What the Case is Not About

Let’s be perfectly clear about what this case is not about and is not going to do. This is not “the case that will end abortion in the United States.” The case cannot be appealed to the U.S. Supreme Court because it was entirely based on state constitutional and statutory grounds. There is no federal question involved, which means that the U.S. Supreme Court has no jurisdiction over the case.

The case arose from a very particular set of facts. A person wandered into the freezer area of an IVF clinic through an unsecured door. They took some embryos out of storage, but dropped them on the floor, killing them. The parents sued the clinic, arguing that it was negligent in protecting the embryos.

Here is how the Alabama Supreme Court framed the issue and stated its ruling:

The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether [Alabama’s Wrongful Death of a Minor 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. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.

To make it even clearer that it was ruling on the application of a specific state statute, the Court went on to note that even though the parties raised the federal question of the status of frozen embryos under the federal 14th Amendment:

the Court today need not address these questions because, as explained below, the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.

 The court also stressed that its decision was the logical conclusion of a very important pro-life provision in the state constitution that governs the interpretation of state laws, which reads:

it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life… [and] it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.

Because the Alabama court’s decision was based solely on its unique state law, it will not have any effect on the laws of any other state. Nor will it have any impact on abortion in Alabama, which is already totally banned. It is only an interpretation of one particular statute, for one very unusual situation.

So we can’t read too much into this decision as a matter of law and practice relating to IVF or embryo storage.

What About Other States?

Any time a court or legislature recognizes any legal rights for unborn children in any condition or location, that is a major victory for the cause of life.

The Alabama case demonstrates how various state laws can work together to have a very positive effect on the cause of life. But it also calls to mind how incoherent our laws are when it comes to defending the rights of pre-born human beings.

Even apart from the huge state-by-state differences about abortion, laws that protect unborn children are a messy patchwork of constitutions, statutes, and court decisions that govern specific circumstances but don’t apply to other circumstances. In most cases, these laws were all enacted at different times to serve immediate and particular purposes. Many go back to the last century or even further. And they don’t necessarily make much sense.

Alabama is not the only state that has a law that requires general protection of unborn children. At least nine other states have some kind of constitutional or statutory provisions like that. The constitution of Arkansas, for example, says:

The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.

Those are excellent laws, although they fall short of full personhood for unborn children. Their specific application to particular situations and laws will always be an open question to be resolved by courts.

When you get down to those specific laws, the states are all over the place. The great majority of states, for example, have some kind of wrongful death law, like the one in Alabama, that permits a cause of action for an injury to an unborn child. But many of those states only permit that kind of action if the unborn child is viable – even states that would otherwise permit an abortion for a viable unborn child. And some of the pro-abortion states also have Unborn Victims of Violence Acts that permit prosecution for an assault on an unborn child, even if they are not yet viable and can be aborted for any reason.

A few states, like New York, still cling to the old common law “born alive” rule that you can’t be a victim of a crime or tort unless you’ve been born alive. But because of our inheritance laws, that unborn child can be a plaintiff for the wrongful death of her father – even while she’s still in utero.

It’s a confusing mess.

The situation of frozen embryos is even worse. Even IVF advocates recognize that our laws are totally incoherent and inconsistent. In general, states treat embryos in three different ways: (1) as persons, with at least some of the rights that are enjoyed by people who have been born; (2) as property, with their disposition governed by laws relating to contracts or marital property in the event of a divorce; or (3) as an uncertain combination of both.

New York, as usual, has the worst possible laws. The Court of Appeals has held that frozen human embryos are nothing more than property. Our statutes place them under the total control of their parents, disposable at will even to surrogate parents. But in some situations, frozen embryos that are implanted and born after a genetic parent’s death can inherit their property.

Louisiana, on the other hand, has adopted a comprehensive set of laws that recognize a frozen embryo as “a juridical person” (although the law uses the scientifically-nonsense term “fertilized human ovum”). They lay out a full set of rights enjoyed by the embryo that must be protected by the courts. That’s a remarkable accomplishment.

Arizona tries to be Solomonic. In the event of a divorce, the court shall “award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.” Its law also lays out ways that the court can resolve cases where both spouses, or neither of them, want to bring the child to birth. But it still fails to give full legal recognition to these frozen human beings.

Given all of this, I don’t know if it’s possible to predict how other states would come down on the same situation presented in the Alabama case. They would likely be all over the place.

So What Does It Mean?

We’ve seen since the Dobbs decision that it is very difficult in our current political climate to pass broad constitutional protections for unborn children through ballot initiatives. There will be more such referenda this fall, and it’s hard to be optimistic about their fate.

State legislatures have been more successful, both pre- and post-Dobbs, in expanding protections when it comes to abortion. But no state (except Louisiana) has even come close to adequately addressing the sad fate of the millions of frozen embryos, which is an injustice that cries out for some kind of resolution. And we continue to see our Black-Robed Platonic Guardian Rulers on state courts issuing result-driven rulings in favor of abortion rights and dismissive of the rights of the unborn.

All of this means that pro-life executives and legislators need to take a close look at their state’s laws to see if they make sense, are up to date, and are consistent in protecting unborn children to the maximum extent politically feasible. And we will continue to need top-level legal talent to defend these laws in court.

Alabama showed us one way forward. We all need to follow.