The Alabama House of Representatives voted 94-6 on Thursday morning to pass HB237, a blatantly unconstitutional bill attempting to establish that IVF clinics are permitted to destroy embryos, and 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 goods or services related to in vitro fertilization."
The bill is an attempt to overturn the sanctity of life provision in the Alabama Constitution which provides that, "This state further acknowledges, declares, and affirms that 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." Rather than protecting unborn children, HB237 expressly permits in vitro fertilization (IVF) clinics to intentionally destroy embryos.
Attempting to undo the most egregious aspect of HB237, Rep. Ernie Yarbrough introduced an amendment which would have added to the bill, "Subsection (a) shall not provide immunity to a person who intentionally causes the death of an unborn child."
Yarbrough's amendment would have prevented IVF clinics from intentionally discarding embryos, a practice common to IVF. Statistics from the British Department of Health indicate that 30 embryos are created through IVF for every one that survives to birth. Those who don't survive are discarded as "low grade embryos," donated to scientific research, selectively reduced (ie. aborted), fail to implant, fail to survive after implantation, or are kept long-term in storage freezers.
Speaking in favor of his amendment, Yarbrough argued, "My conscience is absolutely on fire about this issue...If we're giving immunity, we need to be sure that what we're giving immunity to or for is not the death of children."
The Alabama House voted down Yarbrough's amendment 65-26.
Rep. Ben Harrison then offered an amendment that would have created a committee to study whether "current fertility clinic protocols related to in vitro fertilization are consistent with the public policy of this state, including Section 36.06 of the Constitution of Alabama." The House voted 71-21 against studying the issue further.
After the defeat of Johnson's amendment, the vote was called and the bill passed 94-6.
Nullifying Roe Tom Parker
As we wrote last week, the Alabama Supreme Court recently ruled 8-1 that IVF clinics could be sued for the wrongful death of embryos. Chief Justice Tom Parker's concurrence was of particular interest as it cited the Alabama Constitution, John Calvin, and Thomas Aquinas as he contended that the "sanctity of life" referred to in the Alabama Constitution meant that the destruction of embryos was prohibited and even invited God's wrath.
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory."
The ruling does not outlaw IVF in Alabama but does prevent IVF clinics from being able to intentionally destroy embryos. But because the destruction of embryos is part and parcel to standard IVF practice, Alabama's IVF clinics shut down.
In response, leading Republicans including former President Donald Trump, Senate Minority Leader Mitch McConnell, House Speaker Mike Johnson, Congressman Matt Gaetz, and dozens of other Republican leaders and elected officials condemned the Alabama court's ruling and called on the State legislature to defy the State Constitution by permitting the destruction of embryos created through IVF.
The Alabama House was quick to oblige and the Senate could very well follow, but they face one problem: Tom Parker and the Alabama Supreme Court. Statutes passed by the legislature must be in accordance with the Constitution and the State Supreme Court just clearly ruled that the State Constitution establishes that embryos are due the same rights and protections as everybody else. HB237 should be struck down if lawyers in Alabama are able to challenge this law and bring it before the State Supreme Court.
Nonetheless, the comparison between the actions of Alabama Republicans in this case is shocking when compared to their submission to the Supreme Court's ruling in Roe v. Wade. In 2019, when Alabama passed the Human Life Protection Act, Governor Kay Ivey was sure to clarify that Alabama was fully in submission to the Supreme Court's precedent: "No matter one’s personal view on abortion, we can all recognize that, at least for the short term, this bill may similarly be unenforceable. As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions."
In this instance, we see no such obsequious boot-licking and judicial supremacy. We see Republican officials eager to ignore the (excellent) ruling of the Alabama Supreme Court and perhaps the only unqualified policy victory for the sanctity of life in decades. But that's what Republicans have always done: concede to the left, snatch defeat from the jaws of victory, and throw preborn children under the bus.
For anyone unfamiliar with the horrors of in vitro fertilization, this sermon from Pastor and Senator Dusty Deevers is a great place to start learning.
