Legal Jenga 2

Dear Readers, You may have heard of a “slippery slope argument,” where a result leads to an undesirable end down the line. It is often used by lawyers to cast aspersion on the other’s side argument as a step-by-step guerilla legal campaign towards a sinister conclusion.

There is also the “law of unintended consequences,” commonly used outside the legal field, but also the recognition that a statute or judicial ruling might cause an unintended disruption.

The soundness of judicial interpretation crumbles when you take away a legal leg from the “chair” of a principle; it all comes crashing down – legal jenga. Legislatures have to craft laws and courts interpret them with precision. They have to be very careful that a law (or its interpretation) is structured soundly enough to successfully withstand scrutiny.

Our Constitution has been remarkably resilient. Yes, it might be considered more of a suggestive guide than a tight legal framework, subject to the whims of an epoch’s judicial philosophy. Yet, it still stands in some reasonable facsimile as conceived with only a few subsequent actual amendments and Supreme Court gloss largely consistent on points of intrigue.

The “flip-flops” stand out. Slavery was legal, until we passed the Civil Rights Amendments after the active conflict. Prior to that, in a horrible decision, even a black man living a life of a freed man in “free” state could be hunted down and placed back in shackles.

Sixty (60) years after the end of Reconstruction Era, the law of the land was that “separate but equal” public accommodations, passed Constitutional muster. Another, horrible result ushering in the “Jim Crow” Era of legal discrimination.

As we worked through our Great Depression, and our government grasped at tools to revive our moribund economy, the Supreme Court robbed Congress of the ability to do so in the so-call “Sick Chickens” case. It held that Congress had no regulatory power over local poultry unless directly passing through inter-state commerce. Within three (3) years, the “switch in time, saved nine” reversed this quaint idea after Franklin Roosevelt threatened to expand (and pack) the Court with New Deal proponents.

With the Dobbs’ decision, the Supreme Court took the unprecedented step of directly killing a constitutional right. More importantly, it reversed decades of other opinions premised on the idea that we have a right to privacy found in the “penumbra” of the other rights of the Constitution. In doing so, the constitutional right a woman had held for five decades, to make medical decisions about her own body, was not the only one felled, as undoing a right to privacy is having unintended consequences – legal jenga.

One such right in Alabama is for a family to have the right to use In Vitro Fertilization (IVF) to conceive a child through science. Some women undergo intense cancer treatment, which, unless embryos are frozen, will result in loss of fertility. Some women cannot naturally implant a fertilized embryo in their uterus. Some men are not virile enough to fertilize an embryo through natural means.

Science has solved these problems. Doctors can “freeze” embryos, fertilized or not, and then they can be unfrozen and implanted into a woman’s womb at a later date. The miracle and blessing of life through artificial means.

Proponents of banning abortion have long argued that a fetus is a person. They indirectly won that argument with Dobbs. Many states, including Georgia, have adopted laws functionally banning most abortions.

Alabama has taken it a step further, thanks to a staunch Christian “Seven Mountains” adherent, the Chief Justice of the Alabama Supreme Court, Tom Parker. This is a philosophy we are a Christian nation and Christian values are supreme. In other words, he reads the law through the lense of Christianity, as opposed to the laws as written.

What he has done is authored an opinion that even a woman’s embryos are nascent human beings and “extrauterine children.” Mind you, an embryo is just a cell and even a fertilized one just is a collection of a few cells.

Legally, this has a host of ramifications – legal jenga. It means that any form of contraception (short of maybe condoms) are a form of murder and could be banned. Negligent transportation of frozen embryos could raise wrongful death liability, as could negligent storage.

Pro-family supporters are aghast. How could this be, a Court legislating from the bench an anti-family result? Well, that’s the danger of pulling a liberty plank out of our Constitution. Legal jenga.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

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