Alabama’s IVF decision has fully annihilated the separation of church & state

The First Amendment’s “Establishment Clause” of the U.S. Constitution specifically bars the government from making any laws “respecting an establishment of religion.” This not only prohibits the government from establishing an official religion, but it also forbids any governmental action or policy that favors one religion over another.

This month, the Alabama Supreme Court violated this Constitutional protection in its in vitro fertilization (IVF) decision by seriously restricting the handling of fertilized embryos prepared for IVF procedures.

Related:

Congressional chaplains prove the separation of church & state has always been a sham

“There is no country in the world where the Christian religion retains a greater influence over the souls of men than in America.”

The case stemmed from a wrongful death lawsuit by couples who claimed their frozen embryos were destroyed in a mishap at a fertility clinic. The court’s ruling that embryos have the same rights as children now makes it a prosecutable offense for anyone to destroy a fertilized embryo, whether accidentally or intentionally. Those who do could be charged with murder.

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“Unborn children are ‘children’… without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority ruling by the all-Republican court.

Alabama’s Supreme Court Chief Justice, Tom Parker, drew on passages from the Christian Bible to justify his position: “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” he wrote in a concurring opinion that invoked the Book of Genesis and the prophet Jeremiah 1:5. He also quoted at length from the writings of 16th- and 17th-century theologians.

“We believe that each human being, from the moment of conception, is made in the image of God,” the opinion read, “created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you, Before you were born I sanctified you.’ Jeremiah 1:5 (NKJV 1982).”

“Even before birth,” added Parker, “all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.”

All of this was made possible when the United States Supreme Court disregarded the issue of precedent in 2022 by overturning Roe v. Wade (1973), unraveling the legal right to abortion for nearly the last 50 years in its Dobbs v. Jackson Women’s Health Organization decision. The Court left it to the states to decide whether they would grant reproductive rights.

Since Dobbs, many state legislatures have banned abortion procedures as well as the safe and effective drugs used in medication abortions, mifepristone and misoprostol. The national drugstore chain Walgreens was the first to ban the drugs, even in states where abortion remains legal.

As the ripple effects of Dobbs continue, civil rights advocates throughout the nation now fear that other freedoms are in jeopardy, such as marriage equality and the sale and use of contraception.

Have church & state ever been separate?

Historian Amanda Tyler defines Christian nationalism as “a political ideology and cultural framework that seeks to merge American and Christian identities, distorting both the Christian faith and America’s constitutional democracy.” She said Christian nationalism relies on the mythological founding of the United States as a “Christian nation,” singled out for God’s providence to fulfill God’s purposes on earth. Christian nationalism demands a privileged place for Christianity in public life, buttressed by the active support of government at all levels.

Anthea Butler distinguishes more specifically the definition of white Christian nationalism. Simply put, it is the belief that America’s founding is based on Christian principles, white protestant Christianity is the operational religion of the land, and that Christianity should be the foundation of how the nation develops its laws, principles, and policies.

Following the deadly attacks on September 11, 2001, by Islamic extremists, several right-wing Christian state governors, as well as state and national legislators, fueled further fear and hatred toward Muslims in the United States by falsely alerting their constituents of a so-called sorted and highly organized plot to impose Sharia Law upon the nation.  

Sharia (or Shariat) constitutes the range of religious laws that comprise part of the Islamic tradition representing Allah’s absolute and unchanging divine law. It originates from the religious foundations of Islam and is based on the sacred texts of Islam, most notably from the Quran and the Hadith (the words, actions, and the silent approval of the Islamic prophet Muhammad transmitted through the narrators).

Though no such Sharia Law conspiracy was ever unearthed, several states and municipalities passed legislation prohibiting the application or implementation of Sharia law in the courts or any civil (non-religious) jurisdiction. Other states passed ballot measures that “prohibit the state’s courts from considering foreign, international or religious law.” These states included Alabama, Arizona, Kansas, Louisiana, North Carolina, South Dakota, and Tennessee.

If we are to believe the First Amendment’s Religious Establishment Clause of the United States Constitution, these laws would be redundant since no religious tradition can be established as the basis for any laws that apply to the people at large.

If we were to ask some of the early founders of the United States whether the country is a “Christian nation,” they might voice the opinion that the United States is not a Christian nation.

They would point to what has come to be called “The Treaty of Tripoli” (Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary) in advance of the first war fought between the United States and Muslim states (1801-1805). The Treaty was signed in 1797 to ensure commercial rights and to protect U.S. ships in the Mediterranean from Barbary pirates.

The U.S. Congress ratified the Treaty on January 3, 1797, and then it was signed by President John Adams. Article 11 is often referenced when discussions of the role of religion in the United States government arise.

Article 11 states that “the Government of the United States of America is not, in any sense, founded on the Christian religion.” It was worded to put at ease the delegates in Tripoli (Libya) that the U.S. did not hold animosity against member states in the Muslim world.

But if we know our U.S. religious history, we must acknowledge that the supposed “wall of separation between church and state” discussed by our founders has all these years been a mere illusion. If any barrier exists, it blows in the wind as a sheer and tattered white sheet with no substance or weight.

From the moment Christopher Columbus and his crew stepped onto the sands of what would become the mighty United States of America, an overarching Christian tone, tenor, and substance has overridden the very foundations of our civil law forming the basis over who can engage in the civil and professional life of the community and nation and to what extent.

It is clear from the “Doctrine of Discovery” (Papal decrees granting Christians the right to colonize previously non-Christian countries), to the Puritans establishing their religion as the only acceptable religion at the time, to the Salem Witch Trials, to the no sales on Sunday “Blue Laws,” to forced Christian conversion of enslaved Africans, to Congress passing the “Civilization Act” of 1819 providing U.S. government funding to subsidize Protestant missionary educators to convert indigenous peoples to Christianity.

Then from General Grant expelling “Jews as a class” from Tennessee, to the motto “In God We Trust” first appearing on US coins issued during the Civil War, to Congress officially declaring Christmas as a national holiday, to the Naturalization Act of 1870 revising the 1790 Law and Fourteenth Amendment so that naturalization became limited to white persons and “aliens of African nativity and to persons of African descent,” effectively excluding Chinese and other Asian immigrants of all religious faith backgrounds from naturalization.

Then from the “Chinese Exclusion Act” (renewed 1892, made permanent 1902, repealed 1943) prohibiting Chinese immigration for ten years, to President Franklin Delano Roosevelt signing Executive Order 9066 ordering the evacuation and mass incarceration of 120,000 persons of Japanese ancestry, many of whom were Buddhist and U.S. citizens or documented immigrants living on the West Coast.

Then to President Donald Trump’s attempt to “ban all Muslims from entering the United States,” up to and including the unprecedented Supreme Court ruling taking away reproductive health rights in Dobbs v. Jackson Women’s Health Organization (2022) reversing nearly 50 years of settled law in Roe v. Wade (1973).  

Yes, the Alabama and Dobbs v. Jackson Women’s Health Organization decisions have major implications in establishing Christian domination and hegemonic standards regarding what constitutes life – when life begins – in apparent violation of the “establishment” of religion clause in the First Amendment. This decision crossed that essential barrier in violation of the guarantee of religious freedom.

While no religious denomination or faith community can be viewed in monolithic terms, it must be emphasized that reproductive issues pose a complex and complicated issue when discussing any religious denomination. However, some general trends and policies often emerge.

Let us investigate two other monotheistic Abrahamic religions, Islam and Judaism, and review their stands on reproductive freedoms.

Islam

“[T]he majority of Muslim scholars permit abortion, although they differ on the stage of fetal development beyond which it becomes prohibited,” said American scholar Azizah Y. al-Hibri.

Islamic views on reproductive issues are shaped by Hadith, as well as by the opinions of legal and religious scholars. The holy Quran does not address chosen abortion directly, and there exists no explicit prohibitions on a person’s right to choose an abortion under Islamic law. Individual denominations and countries often set the parameters.

All Islamic denominations and sects recommend abortion when the life of the mother is endangered since the mother’s life is considered the highest priority.

The four Sunni Islam schools of thought — Hanafi, Shafi‘i, Hanbali, and Maliki (85-90% of Muslims) —hold their own standards regarding whether and when abortions are permissible in Islam.

The Maliki madhhab holds “that the fetus is ensouled at the moment of conception” and thus “most Malikis do not permit abortion at any point, seeing God’s hand as actively forming the fetus at every stage of development.”

On the other hand, several Hanafi scholars believe that abortion should be allowed before the 120th day following conception, though some Hanafi scholars teach that abortion within 120 days is makruh (disapproved, i.e., discouraged).  

Sahih al-Bukhari (book of Hadith) writes that the fetus is believed to become a living soul after 120 days of gestation.

In Shia Islam (10-15%), abortion is “forbidden after implantation of the fertilized ovum.” The leader of the Iranian Islamic Revolution, Ayatollah Khomeini proclaimed that shari’a forbids abortion without any reason “even at the earliest possible stage.” Many other Shiite scholars accept this dictum.

According to Islam scholar Sherman Jackson, “while abortion, even during the first trimester, is forbidden according to a minority of jurists, it is not held to be an offense for which there are criminal or even civil sanctions.”

Judaism

“The Torah, the Mishnah, the Talmud, and later rabbinic sources consider the woman’s physical and emotional health before that of the fetus. Until the baby is born, Judaism considers the fetus to be part of the woman’s body. She is never the villain when difficult choices need to be made,” said Rabbi Mara Nathan in a sermon titled, “The Right to Choose Is a Jewish Value.”

In Jewish law, life does not begin at conception. In the Talmud, the fetus is discussed as “mere water” before 40 days of gestation. After this time, the fetus is regarded as a physical part of the pregnant woman’s body. It is not seen as separate from the mother’s body until the birthing process begins and after the first breath of oxygen flows into the lungs, which allows the soul to enter the body.

Since Dobbs, several organizations sued the government for access to reproductive care, including abortion. Some of these organizations, including those that were Jewish and Muslim, sued on religious grounds since their respective faith traditions and communities allow abortion.

A press release from Muslim Advocates stated, “The Supreme Court’s radical decision to overturn Roe v. Wade represents a dangerous Christian nationalization of American law and kicks open the door to future reversals of the right to contraception, the right to marry whomever you want and even the right to teach your children a language of your choice. By upholding a law that defines life as beginning at conception, the U.S. Supreme Court has enshrined the religious doctrine of one minority religious community into law — violating the First Amendment principle of religious freedom…”

In addition, several Jewish organizations have filed suits challenging abortion bans in states such as Ohio, Florida, and Texas.

“There’s going to be a wave of religious freedom lawsuits,” Rabbi Daniel Bogard told Tennessee Lookout. “We’re going to find out if this country really believes in religious freedom, or whether this country believes in the freedom of a small minority to impose its will on the rest of us.”