In Frozen Embryos Case, Alabama Supreme Court Demonstrates Proper Method of Adjudication

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The Alabama Supreme Court’s recent 7-2 decision that a frozen embryo is a “child” under the state’s wrongful-death statute demonstrates once again that judges have to use the right method to make the right decisions.

Keeping this in mind prevents getting distracted by the politics and hysterics that often accompany decisions on such volatile issues.

In this case, three married couples used in vitro fertilization to conceive children. Some of the embryos were implanted and resulted in the birth of healthy babies. Other embryos were preserved in a cryogenic nursery located in the same building as the local hospital.

In December 2020, a hospital patient entered the nursery and removed several embryos. The patient accidentally dropped the embryos because the extremely cold containers freeze-burned the patient’s hands. The embryos were destroyed when they were dropped—essentially killing them. 

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The couples sued the nursery and hospital under the Wrongful Death of a Minor Act, a state law enacted in 1872 that allows the parents of a deceased child to sue “[w]hen the death of a minor child is caused by the wrongful act, omission or negligence of any person.” Although the statute does not define the term “minor child,” the Alabama Supreme Court previously held that it includes an unborn child, regardless of viability or stage of development.

This case, however, focused on the where, rather than the when, a minor child was killed. Alabama legislators knew about unborn children in the womb when they enacted the wrongful-death statute. However, in vitro fertilization produces unborn children outside the womb before they are implanted into the women for gestational purposes.

What is a judge supposed to do when the law is old, but the facts are new? This is where the method a judge uses to decide the case makes all the difference.

U.S. Supreme Court Justice Clarence Thomas has explained that judges should decide cases that involve written law such as statutes in two steps. Judges must first interpret the statute, or figure out what the legislature meant by the text it enacted, and then apply that interpretation to the facts of a particular case.

But how are judges supposed to put that theory into practice when, as with the Alabama wrongful-death statute, the law is more than 150 years old?

Joined by five other justices, Justice Jay Mitchell answered that question in his majority opinion. Courts begin by assuming that, in the absence of evidence to the contrary, legislatures use words in their “natural, ordinary, commonly understood meaning.” When the Alabama legislature enacted the wrongful-death statute in 1872, Mitchell explained, the word “child” was commonly understood to include the unborn.

The Alabama legislature has enacted a series of strong pro-life laws, and Mitchell observed that, in 2022, Alabama voters amended the state constitution to require that judges construe statutes in a way that protects the rights of the unborn and a born child equally. That reinforced the court’s previous conclusion that “child” in the wrongful-death statute included unborn children at any stage of development. And it supported the majority’s conclusion that the wrongful-death statute “applies on its face to all unborn children, without limitation.”

Criticism of the majority by three justices appeared based on what they thought the statute should have said.

Justice Brady Mendheim’s separate opinion, for example, agreed with the majority’s result, but thought it “problematic” that the majority had not considered that “IVF was not even a scientific possibility” when the legislature enacted the wrongful-death statute. Similarly, dissenting Justice Will Sellers emphasized the subjective “intent of the Act,” rather than objective meaning of the words that the legislature put in the statute.  

In other words, they used the wrong method by mixing interpretation and application, rather than keeping them separate. If a statute’s meaning is limited by how it could have been applied when the legislature enacted it, virtually every statute would rapidly become obsolete and have to be constantly reenacted.

Consider the chaos that using this method in constitutional cases would cause. The Fourth Amendment, which prohibits “unreasonable searches and seizures,” could not be applied to wiretaps because electronic communication methods did not exist in 1791. The First Amendment’s guarantee of “freedom of speech” would not apply to films or online publications, as they likewise didn’t exist in 1791. You get the point.

That’s why judges must start with a statute’s text, then figure out what the legislature meant by it, and then apply it to the facts of each case as it comes along. Using that method allowed the court in this case first to determine what the word “child” meant in the wrongful-death statute, even though it was enacted in 1872, and whether that included an unborn child without any limitation on the child’s location.

Justice Greg Cook’s dissent, which spanned 57 pages, appeared to take issue with the court’s previous decisions that the wrongful-death statute applied generally to unborn children. And he speculated about the impact of the majority’s decision, claiming that it “will mean that the creation of frozen embryos will end in Alabama.”

 Just four pages later, Cook himself noted that “because these appeals are at the motion-to-dismiss stage … there is no factual record at this point,” undermining any basis for his prediction. Whether that prediction is reasonable, however, is irrelevant because the legislature, not the courts, has the authority to consider such policy matters.  

Predictably, the media uniformly misreported what the court actually decided in this case. “Alabama Court Ruled Frozen Embryos Are Children,” reported CBS. Virtually identical headlines came from USA Today, National Public Radio, The Washington Post and many other outlets. The Post went even further, claiming that “the State Supreme Court ruled Friday that frozen embryos are people.” Using that broad a brush makes this decision appear, perhaps intentionally, radical rather than common sense.

The truth is that the court looked at the wrongful-death statute for what it says and refused to see a location restriction that the legislature did not put there.

By using the proper method of interpreting the statute’s text and then separately applying it, the majority was able to settle this legal dispute and leave the policy speculation and issue politics to the legislature.

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