Columnist Ruth Marcus begins her latest Washington Post column, on the Alabama supreme court’s ruling last Friday on a wrongful-death suit involving frozen human embryos accidentally destroyed, this way:
Welcome to the theocracy.
I don’t use that word lightly, not about life in the United States.
Not lightly, no — she is in fact quite serious. But she does not use the word sensibly, or in a way corresponding to what “theocracy” has always meant. What has Marcus so exercised?
The state supreme court noted that its own precedents on statutory civil actions for the wrongful deaths of minor children have for decades included the unborn, in recent years including those before “viability” (the gestational age, arriving progressively earlier with medical advances, when a child may survive birth). It went on to reason that inasmuch as the only differences between unborn children in utero and unborn children in cryogenic storage are (1) their location and (2) the fact that the latter’s development has been arrested by freezing, there is no barrier in state law to suits for the wrongful death of unborn, so far unimplanted frozen embryos.
For Marcus this is intolerable. Intolerable that Chief Justice Tom Parker, in a concurring opinion, should refer to these embryos as “little people.” Intolerable that, as the main opinion of the court put it, “all parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” To this undeniable fact Marcus has the following incoherent response: “There’s vigorous debate, as much a matter of theology as of science, about when life begins — most relevantly, whether it begins at fertilization, before implantation in the uterus.”
Among scientists, however — specifically, embryologists — there isn’t any debate. Ed Whelan, on Twitter/X, pointed to a collection of quotations from standard texts in embryology, all agreeing that fertilization is the beginning of a new organism’s existence — in human fertilization, a new human organism. That is, a human being.
Perhaps Marcus is confused, or perhaps she is being deliberately obscurantist. There are some medical authorities that mark the beginning of pregnancy with the “implantation in the uterus” of the existing zygote. This has occasionally given cover to the apologists for allegedly “contraceptive” (but sometimes abortifacient) interventions that can work by preventing implantation. Their logical move is, “No implantation, no pregnancy, therefore there was never an unborn life and no abortion occurred.” But this is wordplay, not science. If what is prevented from being implanted in the uterus is a zygote, sometimes imprecisely or inaccurately called a “fertilized egg,” then a life was aborted, even if for some other purpose we would mark the start of pregnancy as implantation.
(I suppose we could be grateful that Marcus says that the nonexistent “vigorous debate . . . about when life begins” is a disagreement over whether it begins at fertilization or implantation. After all, she has always supported abortion long after implantation. I cannot recall whether she has ever called for any limits on it. If she is now ready to affirm that “life begins” at implantation, maybe she is ready to entertain the proposition — the fact — that it is a human life, indistinguishable at that stage from every other person ever born.)
But the other thing that has Marcus exercised — and it occasions her cries of “Theocracy!” — is that Chief Justice Parker wrote an extended reflection on the meaning of an amendment to the state constitution, adopted by the people of Alabama in 2018, declaring the state’s policy to “recognize and support the sanctity of unborn life.” Why “sanctity,” he asks? And the answer he gives is a perfectly sensible account of the religious basis for the people’s belief that all human life is precious. This is what gave rise to all of Parker’s references to Christian thinkers’ reflections on the moral significance of the “image of God” in which we are all made.
Marcus would have us believe that Parker is, as the saying goes, “imposing his religion” on the State of Alabama. To the contrary, he is explaining the religious basis of the moral convictions about protecting human life that Alabamians put in their state constitution six years ago.
Now, is the fact that Alabamians drew from a Judeo-Christian biblical well of moral conviction to declare the sanctity of human life enough for us to say that Alabama was thereby made over into a “theocracy”? Of course not. In every age and place of human history, “theocracy” has meant the fusion of priestly power with political power, and that does not describe Alabama. There is no established church there. Freedom of religion still prevails. Ministers of religion are not issuing decrees and fatwas with the force of law or the arm of the state behind them.
Let’s be clear once and for all: The commonest, as well as the most reliable, basis of any moral conviction that can animate the law is the religious conviction of the people governing themselves by that law. To notice that the law is an expression of morality (it is never not that), and to notice further that the people responsible for the law drew upon their religious beliefs for their moral convictions, is simply to notice that law has been made exactly as law has always been made — by human beings of the usual sort.
If you disagree with the law as written, and reject both the morality and the religion that undergird it, that does not mean you live unwillingly in someone else’s “theocracy.” It just means you’re in the minority in that community, and you have your work cut out for you to argue more persuasively than Ruth Marcus has.