The Alabama Supreme Court ruled last week by a vote of 8 to 1 that frozen embryos in IVF clinics are children, at least in Alabama, or, to use the language of the decision, “extrauterine children” in “cryogenic nurseries. Chief Justice Tom Parker concurred with the majority, but he used the opportunity to discuss the meaning of the phrase “sanctity of unborn life”.

Below is a lightly edited excerpt from Parker’s concurrence in the judgement.

PARKER, Chief Justice (concurring specially). A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb. Our state Constitution contains the following declaration of public policy: “This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life” (sometimes referred to as “the Sanctity of Unborn Life Amendment”).

Meaning of ‘sanctity’
The Alabama Constitution does not expressly define the phrase “sanctity of unborn life.” The goal of constitutional interpretation is to discern the original public meaning, which is “‘the meaning the people understood a provision to have at the time they enacted it….’ ”

At the time § 36.06 was adopted, “sanctity” was defined as: “1. holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations, or rights.” Recent advocates of the sanctity of life have attempted to articulate the principle on purely secular philosophical grounds. Such advocates have preferred to use the term “inviolability” rather than “sanctity” to avoid what one scholar calls “distracting theological connotations.” But even though “inviolability” is certainly a synonym of “sanctity” in that the meaning of the two words largely overlap, the two words cannot simply be substituted for each other because each word carries its own set of implications. When the People of Alabama adopted § 36.06, they did not use the term “inviolability,” with its secular connotations, but rather they chose the term “sanctity,” with all of its connotations.

This kind of acceptance is not foreign to our Constitution, which in its preamble “invokes the favor and guidance of Almighty God,” and which declares that “all men … are endowed [with life] by their Creator.” The Alabama Constitution’s recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama. In his Commentaries on the Laws of England, Sir William Blackstone declared that “life is the immediate gift of God, a right inherent by nature in every individual.” He later described human life as being “the immediate donation of the great creator.” Only recently has the phrase “sanctity of life” been widely used as shorthand for the general principle that human life can never be intentionally taken without adequate justification. The phrase was first used in the modern bioethical debate by Rev. John Sutherland Bonnell as the title to his 1951 article opposing euthanasia: “The Sanctity of Human Life”. Glanville Williams later employed the phrase in his ground-breaking book, The Sanctity of Life and the Criminal Law, in 1957. The common usage of this phrase has continued into the 21st century, referring to the view that all human beings bear God’s image from the moment of conception….