You wouldn’t know it from most of the media coverage, but what the Alabama supreme court actually ruled in LePage v. Center for Reproductive Medicine is that Alabama law allowed parents to pursue a wrongful-death suit for the negligent destruction of their IVF embryos. I’ll address in my next post the rush to conclude that this victory for parents using IVF is a defeat for parents who want to use IVF. Here I will refute a much more brazen distortion—the utterly unfounded claim that there is a link between the U.S. Supreme Court’s decision in Dobbs and the Alabama court’s ruling.
To take but two examples: New York Times columnist Jamelle Bouie, in a piece titled “Samuel Alito Opened the Door to Reproductive Hell,” asserts: “It should be said here that the majority’s decision was possible only because of Dobbs, since to free states to outlaw abortion is also to free them to touch an even larger set of rights and freedoms.” Jacqueline Howard of CNN likewise has published an article titled “How the reversal of Roe v. Wade led to the Alabama Supreme Court ruling that frozen embryos are children.”
But years before Dobbs was decided, Alabama (and, if this report from a personal-injury law firm has the specifics right, 14 other states) allowed a wrongful-death suit for the death of an unborn child from conception forward. The legal issue in LePage, as the majority opinion put it, was whether Alabama law “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.”
In criminal laws enacted years ago, Alabama and several other states also extended their homicide laws to a third party’s killing of an unborn child from conception forward.
Why would anyone think that the Roe regime prevented a mother from pursuing a wrongful-death claim against someone who caused the death of her unborn child?
Roe failed to recognize the biological reality that the life of an unborn human being begins at conception. But it did not rest its misguided holding on any alternative theory of when a human life begins. (It did not make the crazy claim that the life of a human being begins at viability.) Nor did it in any way purport to prevent states from protecting the lives of unborn human beings outside the abortion context. In reversing Roe, the Court in Dobbs likewise did not address the question of when a human life begins.
It’s politically convenient for abortion supporters to contend that anything they object to is a result of Dobbs. But here, as in many other instances, that contention is unfounded.