The recent ruling by the Alabama Supreme Court that frozen embryos are “children” reveals the growing importance of state supreme courts in the wake of the U.S. Supreme Court’s Dobbs decision, overruling Roe v. Wade.
So far this year, at least 14 states have introduced fetal personhood legislation — extending not only to fetuses, but also embryos and eggs. Two-thirds of pregnancy criminalization arrests are now coming from Alabama, Oklahoma, and South Carolina — whose highest courts have defined “children” to include fetuses, fertilized eggs, and embryos. If you suffer a miscarriage, you could potentially be arrested for homicide or manslaughter. State courts have become the scenes of a growing number of reproduction criminalization trials.
Contraceptives and abortion pills may be the next targets. This month, the two largest pharmacy chains in the United States will start dispensing the abortion pill mifepristone.
The Alabama ruling also reveals the growing political influence at the state level of Christian fundamentalists who believe that human life, as Alabama Chief Justice Tom Parker wrote in a concurring opinion, “cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”
And the ruling epitomizes the Christian right’s ever-more vehement attacks on science.
We’ve been here before. In the early twentieth century, some state legislatures relied on the Bible to dictate what their citizens could and couldn’t do — resulting in notorious trials such as Tennessee v. John Thomas Scopes, which began July 10, 1925 in Dayton, Tennessee.John Scopes was a high school biology teacher. He was charged with violating Tennessee’s Butler Act — passed at the behest of Tennessee Representative John Washington Butler, head of the World Christian Fundamentalist Association — which made it illegal to teach human evolution in Tennessee schools.
William Jennings Bryan, the populist three-time presidential candidate and former secretary of state, argued for the prosecution; Clarence Darrow, for the defense.
The presiding Tennessee judge, John T. Raulston, quoted Genesis at the outset of the trial — just as did Alabama Chief Justice Tom Parker in the recent Alabama case.
Bryan opened for the prosecution by criticizing the theory of evolution and the notion that human beings were descended "not even from American monkeys, but from old world monkeys.”
Darrow argued that the Bible should be limited to the realm of theology and morality and had no place in high school science courses.
After six days of trial, Judge Raulston declared that all the defense testimony that Darrow had presented on the Bible, much of it from Biblical scholars, was irrelevant and could not be presented to the jury (which had been excluded from the courtroom during the defense).
Darrow then thought he might be able to use Bryan to make his points in a way that could command the nation’s attention. Bryan was eager to oblige.
In shirtsleeves and his trademark suspenders, Darrow began his interrogation of Bryan with a quiet question: "You have given considerable study to the Bible, haven't you, Mr. Bryan?"
Bryan replied, "Yes, I have. I have studied the Bible for about fifty years.” Bryan then claimed "everything in the Bible should be accepted as it is given there.”Darrow asked Bryan whether he believed that a whale swallowed Jonah, that Joshua made the sun stand still, that Noah survived the great flood by putting the males and females of every species into his arc, that Eve had been created from Adam's rib, that Eve had tempted Adam in the garden of Eden, and the six days of creation according to Genesis.
Bryan finally conceded that the words of the Bible should not always be taken literally, and explained that "I do not think about things I don't think about.” Darrow then asked: "Do you think about the things you do think about?" To the derisive laughter of spectators, Bryan responded, "Well, sometimes.”
Bryan charged that the purpose of Darrow's questioning was "to cast ridicule on everybody who believes in the Bible.” Darrow responded that his purpose was to prevent “bigots and ignoramuses from controlling the education of the United States.”
Bryan then accused Darrow of attempting to "slur at the Bible,” and agreed to answer Darrow's further questions because "I want the world to know that this man, who does not believe in God, is trying to use a court in Tennessee …" Darrow interrupted, saying, "I object to your statement" and to "your fool ideas that no intelligent Christian on earth believes."
Raulston promptly ordered the court adjourned, and the next day ruled that Darrow could not put Bryan back on the stand and that Bryan’s testimony from the previous day must be stricken from the record.
Darrow did not summarize his defense. Bryan's summation, which was distributed to reporters but not read in court, provides an insight into the beliefs of the religious right even today:
Science is a magnificent force, but it is not a teacher of morals. It can perfect machinery, but it adds no moral restraints to protect society from the misuse of the machine. It can also build gigantic intellectual ships, but it constructs no moral rudders for the control of storm-tossed human vessel…. Sience has made war so hellish that civilization was about to commit suicide; and now we are told that newly discovered instruments of destruction will make the cruelties of the late war seem trivial in comparison with the cruelties of wars that may come in the future. If civilization is to be saved from the wreckage threatened by intelligence not consecrated by love, it must be saved by the moral code of the meek and lowly Nazarene. His teachings, and His teachings alone, can solve the problems that vex the heart and perplex the world.
After eight days of trial, it took the jury nine minutes to find Scopes guilty. He was ordered by Judge Raulston to pay a $100 fine (the equivalent of about $1,900 today). The Tennessee Supreme invalidated the decision on a technicality.
Bryan died suddenly five days after the trial's conclusion.
In his autobiography, The Story of My Life, published in 1932, Darrow predicted that “it will be only a few years before the senseless [Butler] statute will be wiped from her books either by repeal or the decision of a final court.” The Butler Act was not repealed in Tennessee until 1967.
Darrow also wrote that “there is now reason for feeling confident that no more states will permit their fanatics to place them in the position of Tennessee.” Darrow’s biographer Irving Stone went so far as to declare in Clarence Darrow for the Defense that Darrow had “dealt a deathblow to fundamentalism.”
In 1968, the U.S. Supreme Court ruled in Epperson v. Arkansas that bans on teaching evolution contravene the Establishment Clause of the First Amendment because their primary purpose is religious.
Those were the days when the U.S. Supreme Court was a bulwark against the fundamentalist right and could be counted on to buttress the wall between church and state.
But there seems little chance that the current Supreme Court will deem unconstitutional the pregnancy criminalization prosecutions coming from states whose highest courts have defined “children” to include fetuses, fertilized eggs, and embryos.
Robert Reich is a professor at Berkeley and was secretary of labor under Bill Clinton. You can find his writing at https://robertreich.substack.com/.