Give an inch, take a mile
Via Dispatches from the Religious Left, an analysis of the Alabama Supreme Court’s IVF ruling explaining how the judges scooped up this ball and rasn it in for a fringe-right touchdown.
Chris Geidner writes:
I’d like to focus instead on the majority opinion from Justice Jay Mitchell, which is extreme in its own ways — and highlights the dangerous faux-jurisprudence that the U.S. Supreme Court has encouraged.
In order to reach its ruling, the court needed to ignore its own past precedents that congruence between the state’s criminal-homicide statute and wrongful-death statute was needed. This is important because the state’s Wrongful Death of a Minor Act was passed in 1872. The court had justified expanding that civil law to fetuses in utero based on an expansion of the criminal law to include fetuses in utero and the claimed need for congruence between the two laws. Now that the court wanted to go further than the criminal law, it just ignored those rulings — overruling them without saying so, as Justice Greg Cook stated in his dissenting opinion.
Or, as Justice Will Sellers wrote more bluntly, “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.”
The court also went far afield of what was necessary for its ruling. After claiming that “[t]here is simply no … ambiguity” about the word “child” in the Wrongful Death of a Minor Act, the court then got into what ordinarily would then not have been a part of the opinion at all: An extended discussion of the “Sanctity of Unborn Life’ provision of the Alabama Constitution: Article I, Section 36.06.
Of that, Mitchell wrote for the court, “Even if the word ‘child’ were ambiguous, however, the Alabama Constitution would require courts to resolve the ambiguity in favor of protecting unborn life,” claiming that Section 36.06 “operates in this context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children, whenever such construction is ‘lawful and appropriate.’“
This is dicta — a statement that is unnecessary to the ruling — and yet, as a statement in a majority opinion from the state’s Supreme Court, it was a chance for this court to establish this new rule, which undoubtedly will now be applied by lower courts in Alabama.
As Sellers wrote in dissent, “Respectfully, § 36.06 neither operates in such a fashion nor commands this Court to override legislative acts it believes ‘contraven[e] the sanctity of unborn life’“ — a quote from Parker’s even further-reaching concurring theocratic opinion.
Finally, and perhaps most telling, the court — in the closing paragraphs of Mitchell’s opinion — makes clear that it did not need to reach either the statutory or constitutional issues here.
“[T]he defendants pointed out that all the plaintiffs signed contracts with the Center in which their embryonic children were, in many respects, treated as nonhuman property,” Mitchell wrote. “If the defendants are correct on that point, then they may be able to invoke waiver, estoppel, or similar affirmative defenses.”
In other words, if this is true, the court could have issued a ruling that avoided all of the IVF issues — instead ruling that, even if the plaintiffs could bring such lawsuits, they would be barred from doing so here. This is an ordinary practice of courts to avoid reaching more complicated or extensive rulings than necessary for the case in front of it.
But, this court wanted to reach its broader ruling in this case. So, it refused to rule on that pivotal question, with Mitchell instead writing for the court, “[T]hose defenses have not been briefed and were not considered by the trial court, so we will not attempt to resolve them here. We are ‘a court of review, not a court of first instance.’”
Ignoring precedent, going further in its rulings than necessary, and reaching issues that it did not even necessarily need to reach — all in service of a ruling that restricts bodily, family, and reproductive autonomy to advance what Parker’s concurrence makes clear is a Christian nationalism goal.
A patriarchal theocracy
AOC has opinions, of course:
“If you don’t think this country is sliding toward theocracy, you’re not paying attention,” Charles Blow wrote this week. This is a subculture that’s been simmering just outside of the national public’s view for decades.
Janine Melnitz : Yes, of course they’re serious…
From weapons training for Jesus to pledging allegiance to the Christian flag, to worship services featuring AR-15s to purity pledges, and now to book bans, this is a subculture the rest of us could comfortably view with a smirk as an unserious fringe.
Don’t say you weren’t warned. “It’s hard to know what will happen if these people begin to exert even stronger influence over the Republican party in a time of great stress and transition in this country,” Digby wrote in 2010.
A friend this week said she’s less likely these days to admit being a Christian because of these people. That’s okay because they are unlikely to consider her one in their budding theocracy. Given a chance, the American Taliban will not tolerate ordinary Lutherans, Episcopalians, Methodists, etc. Freedom of religion will be guaranteed so long as it’s theirs.
Check between your shoulder blades for a target.
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