Last week, the Alabama Supreme Court ruled that embryos frozen in in vitro fertilization procedures are “children” under state law, and that a person responsible for their destruction can be held liable. The opinion is a staggering attack on every facet of reproductive health, including the freedom of people experiencing infertility who use assisted reproductive technologies. It represents the culmination of a movement to enshrine into law the unscientific and purely religious claim that life begins when a sperm fertilizes an egg, supplanting secular laws with supposedly “biblical” beliefs.
This theocratic dystopia is not an outlier, confined to a single state, but rather a roadmap should Donald Trump return to the White House. Recent reporting in Politico and The New York Times exposes further expansions of plans by Trump allies to Christianize the federal government, including the restriction and even criminalization of abortion.
There could scarcely be a better encapsulation of Christian nationalist jurisprudence.
At issue in the Alabama case was an 1872 state law allowing civil lawsuits for wrongful death of children and, more crucially, a 2018 anti-abortion amendment to the state constitution. The amendment, approved in a referendum, made it state law to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” In last week’s case, the court’s majority reasoned that Alabama law equally protects “children” and “unborn children,” including frozen fertilized eggs, which the court referred to as “extrauterine children.”
Even more astonishing than the majority opinion, though, was the concurring opinion of the court’s chief justice, Tom Parker, a longtime proponent of citing biblical law to undergird his jurisprudence. Parker is a protegé of former Alabama Chief Justice Roy Moore, who first rose to national prominence for his unsuccessful battle in the early 2000s to install a 5,280-pound granite replica of the Ten Commandments inside the courthouse. (In his failed campaign for U.S. Senate in 2017, multiple women accused Moore of grooming or sexually assaulting them, with most alleged incidents occurring when he was an adult and the women were teenagers.)
Parker, like Moore, holds Christian reconstructionist beliefs; in a dissent in a 2005 child custody case, for example, he asserted that only God is “the ultimate source of all legitimate authority” for government. When I saw him speak at a neo-Confederate gathering in 2011, he told the crowd, “When judges don’t rule in fear of the Lord, all the foundations of the earth are shaken.”
Parker’s 22-page concurrence in the IVF case cites four Bible verses (Genesis 1:27 and 9:6, Exodus 20:13, and Jeremiah 1:5) and spans a millennium-and-a-half of Christian theology, including Thomas Aquinas, Saint Augustine and John Calvin. Based on this expansive review, Parker concludes that, in passing the 2018 constitutional amendment, the people of Alabama adopted “the theologically based view of the sanctity of life” that “God made every person in His image;” that each person “has a value that far exceeds the ability of human beings to calculate;” and that no human life can be “destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.” There could scarcely be a better encapsulation of Christian nationalist jurisprudence.
Should Trump win in 2024, those staffing his administration will deploy the same philosophy for the same brutal outcomes. Politico reports that the Center for Renewing America, a think tank run by Trump’s former director of the Office of Management and Budget, Russell Vought, has developed a draft document that includes “Christian nationalism” as an explicit goal of a second Trump term. Vought is a key adviser to Project 2025, the plan released by a coalition of right-wing groups that, among other initiatives, proposes sweeping anti-abortion and anti-LGBTQ policies.
Trump and his allies know their goals are not only unpopular but probably appalling to a majority of Americans.
In a 2021 essay, Vought embraced the term “Christian nationalism” as “An orientation for engaging in the public square that recognizes America as a Christian nation, where our rights and duties are understood to come from God.” He acknowledged “an institutional separation between church and state, but not the separation of Christianity from its influence on government and society.” Politico also reports that Vought is close to former Trump administration official William Wolfe, who also has welcomed the term “Christian nationalist” and has argued that what government officials “need to recognize most fundamentally is that all authority in God’s creation is derivative from the Creator.” He, too, has called for ending abortion.
In other anti-abortion developments, the Times reports that Trump allies are quietly plotting the resurrection of the Comstock Act — a dormant 1873 federal law that banned “obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance” — to criminalize the transport of abortion pills. That ambition could be extended to the 19th-century law’s original target: contraceptives. Doing so would require overturning the U.S. Supreme Court’s 1965 decision in Griswold v. Connecticut, which struck down state bans on the sale of contraceptives. That ruling has long been a target of Justice Clarence Thomas and members of the theocratic right.
Trump and his allies know their goals are not only unpopular but probably appalling to a majority of Americans. That is why Project 2025, as the Times notes, only refers to the Comstock Act by its statutory citation (18 U.S.C. 1461 and 1462). These types of distortions are typical of anti-abortion rights activists. When Alabama’s constitutional amendment passed in 2018, advocates claimed it wouldn’t target IVF. Spearheading the push to use the Comstock Act is right-wing power lawyer Jonathan Mitchell, who worked on Texas’ S.B. 8, a draconian ban on abortions that also authorizes private citizens to sue anyone who “aided or abetted” an abortion. After publicity of cases in which women were denied medically essential abortions, Mitchell claimed to NPR that the bill he drafted was never intended to ban those procedures — even though it has been interpreted to ban virtually all abortions there.
Now Mitchell’s trying to repeat the deception. “I hope [Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” he told the Times. “I think the pro-life groups should keep their mouths shut as much as possible until the election.” No one should let secrecy and contortions, such as claims of Trump’s supposed moderation on abortion, lull them into complacency. When activists warmly embrace the Christian nationalist label, they are very loudly telling you exactly who they are.