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”. It appears a 2018 amendment to the Alabama Constitution.
This is a remarkably well-informed essay on, grounded in theology, philosophy and the common law. Below is a lightly edited excerpt from his concurrence.
By Tom Parker
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.’ ” Constitutional interpretation must start with the text, but it also must include the context of the time in which it was adopted.
Helpful sources in interpretation include contemporaneous dictionaries, but the analysis must also “draw from deeper wells” instead of relying “solely on dictionaries.” Such “deeper wells” include (1) the history of the period, (2) similar provisions in predecessor constitutions, (3) the records of the constitutional convention, inasmuch as they shed light on what the public thought, (4) the common law, (5) cases, (6) legal treatises, (7) evidence of contemporaneous general public understanding, especially as found in other state constitutions and court decisions interpreting them, (8) contemporaneous lay-audience advocacy for (or against) its adoption, and (9) any other evidence of original public meaning, which could include corpus linguistics.
The phrase “sanctity of unborn life” involves the same terms and concepts as the broader and more common phrase, “sanctity of life.” Thus, the history and meaning of the phrase “sanctity of life” informs our understanding of “sanctity of unborn life”.
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.
The meaning of the ‘sanctity of life’
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.
The phrase appeared only twice in our precedents before 2018. But the principle itself — that human life is fundamentally distinct from other forms of life and cannot be taken intentionally without justification — has deep roots that reach back to the creation of man “in the image of God.” One 17th-century commentator [Petrus Van Mastricht] has explained the significance of man’s creation in God’s image as follows:
“[T]he chief excellence and prerogative of created man is in the image of his Creator. For while God has impressed as it were a vestige of himself upon all the rest of the creatures … so that from all the creatures you can gather the presence and efficiency of the Creator, or as the apostle [Paul] says, you can clearly see his eternal power and divinity, yet only man did he bless with his own image, that from it you may recognize not only what the Creator is, but also who he is, or what his qualities are.
“… God did this: (1) so that he might as it were contemplate and delight himself in man, as in a copy of himself, or a most highly polished mirror, for which reason his delights are said to be with the children of men. (2) So that he might, as much as can be done, propagate himself as it were in man. … (3) So that he would have on earth one who would know, love, and worship him and all that is his, which could not be obtained in the least apart from the image of God …. (4) So that he might have one with whom he would live most blessed for eternity, with whom he would converse as with a friend …. Therefore, so that God could eternally dwell and abide with man, he willed him to be in some manner similar to him, to bear his image …. Therefore, the image of God in man is nothing except a conformity of man whereby he in measure reflects the highest perfection of God.”
Van Mastricht’s assessment of the significance of man’s creation in the image of God accords with that of Thomas Aquinas centuries earlier. Following Augustine, Aquinas distinguished human life from other things God made, including nonhuman life, on the ground that man was made in God’s image.
“As Augustine observes, man surpasses other things, not in the fact that God Himself made man, as though He did not make other things; since it is written, ‘The work of Thy hands is the heaven,’ and elsewhere, ‘His hands laid down the dry land,’ but in this, that man is made to God’s image.”
Further, Aquinas explained that every man has the image of God in that he “possesses a natural aptitude for understanding and loving God,” which imitates God chiefly in “that God understands and loves Himself.” Thus, man’s creation in God’s image directs man to his last end, which is to know and love God.
Man’s creation in God’s image is the basis of the general prohibition on the intentional taking of human life.
Finally, the doctrine of the sanctity of life is rooted in the Sixth Commandment: “You shall not murder” (the Fifth Commandment in the Catholic tradition). Aquinas taught that “it is in no way lawful to slay the innocent” because “we ought to love the nature which God has made, and which is destroyed by slaying him.” Likewise, Calvin explained the reason for the Sixth Commandment this way: “Man is both the image of God and our flesh. Wherefore, if we would not violate the image of God, we must hold the person of man sacred.”
These and many similar writings, creeds, catechisms, and teachings have informed the American public’s view of life as sacred.
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.
Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.
Tom Parker is the chief justice of the Alabama Supreme Court.
This article has been reprinted with permission and can be found at mercatornet.com/_created_in_god_s_image_the_meaning.