Riddle: When is a frozen embryo actually a can of worms?

Answer: When the Alabama Supreme Court issues its ruling in LePage v. Mobile Infirmary Clinic, Inc., allowing the parents of several such embryos, created through in-vitro fertilization, to proceed with a wrongful death lawsuit after those embryos were accidentally destroyed.

You’ve probably heard at least two things about the ruling:

First, that it creates big issues for the continued use of IVF to help parents with fertility problems have children, with clinics fearing litigation or even prosecution if they offer the service.

Second, that the court includes religious sentiments and Bible citations on the santctity of life.

Both of those things are true, but they miss the point. The ruling doesn’t hang on those sentiments or citations. It hangs on the plain text of “black-letter law.” As the opening paragraph of the ruling’s “Analysis” section notes:

“The parties to these cases have raised many difficult questions, including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to such children, and the public-policy implications of treating extrauterine children as human beings. But the Court today need not address these questions because, as explained below, the relevant statutory text is clear.”

The justices’ hands were tied. The law said what it said, the law meant what it meant, and their job was to uphold it, not rewrite it or create exceptions to it: “Judges are required to conform our rulings ‘to the expressions of the legislature, to the letter of the statute,’ and to the Constitution , ‘without indulging a speculation, either upon the impolicy, or the hardship , of the law.'”

What — who — is a “person” or “child” deserving of particular rights and protections?

As a philosophical topic, that question quickly becomes interesting and highly debatable.

As a political and legal question, it’s likewise highly debatable and any answer produces controversial consequences.

LePage v. Mobile Infirmary Clinic, Inc. ain’t the first judicial rodeo on that question.

In Roe v. Wade, the Supreme Court decided to cut the baby in half — or, actually, in thirds — Solomon-style, allowing abortion on demand in the first trimester, regulation in the second, and prohibition in the third. It reversed that framing in Dobbs v. Jackson, leading inevitably to the current case.

But let’s look a lot further back to see how contentious the question is. Try this one on:

“[Black people were] a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

That’s from the Supreme Court’s 1857 ruling in Dred Scott v. Sandford, a ruling which was only subsequently and slowly modified.

Tough questions create hard cases, which in turn make for bad law — which then gets dropped in front of courts to make sense of … if they can.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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