[Previous: Embryos are people in Alabama, but women aren’t]

In the wake of Alabama’s anti-IVF ruling, the American religious right belatedly realized that they’d overstepped. Even many people who consider themselves anti-choice saw this as a gross intrusion on their rights. (I was surprised to learn that 2% of American babies born each year were conceived through IVF. That’s more than I would have guessed.)

After a firestorm of criticism, the Alabama legislature hastily passed a law to shield IVF clinics from liability. This allowed fertility treatments to resume in the state.

However, the religious right can’t hide from their record. One of the first things Republicans did after taking over the House was to introduce a “Life at Conception Act” that would make single-celled embryos count as people in the eyes of the law. That’s exactly the logic that shut down IVF facilities in Alabama. An earlier draft of the House GOP bill contained a special exception for IVF, which has since been removed.

What’s more, Alabama’s fix sidesteps the question at the heart of this debate: Is a frozen embryo a person or not?

While the new law protects IVF providers from lawsuits and prosecution, it’s silent on this issue. It does nothing to contradict the Christian dominionist judge’s ruling that kicked off this furor. This means that, bizarrely, in Alabama, frozen embryos are legally considered people, yet it’s okay to kill them.

Do embryos have rights?

Anti-choicers frame this as a human rights issue. They’d have us believe that single-celled embryos and undeveloped fetuses are like every other oppressed minority in history.

However, they’re not like every other oppressed minority. Black people in slave societies, Jewish people in antisemitic societies, women in patriarchal societies, and others had an inner humanity which the dominant majority refused to recognize. They suffered and felt despair, rejoiced and felt joy, had dreams and aspirations for the future.

This isn’t true for embryos and fetuses. Carl Sagan and Ann Druyan’s classic essay on abortion explains the evidence:

By placing harmless electrodes on a subject’s head, scientists can measure the electrical activity produced by the network of neurons inside the skull. Different kinds of mental activity show different kinds of brain waves. But brain waves with regular patterns typical of adult human brains do not appear in the fetus until about the 30th week of pregnancy – near the beginning of the third trimester. Fetuses younger than this – however alive and active they may be – lack the necessary brain architecture. They cannot yet think.

It’s not a heartbeat or movement that makes a human body into a person. Even brain-dead bodies have those. What makes someone a person is thought: the complex inner life of a conscious being with a functioning brain. Before an embryo possesses that, it’s not a person, whatever else it is.

In fact, Sagan and Druyan further point out that many past legislators and theologians – including Roman Catholics – didn’t consider a fetus to be human, either:

Neither St. Augustine nor St. Thomas Aquinas considered early-term abortion to be homicide (the latter on the grounds that the embryo doesn’t look human). This view was embraced by the Church in the Council of Vienne in 1312, and has never been repudiated. The Catholic Church’s first and long-standing collection of canon law (according to the leading historian of the Church’s teaching on abortion, John Connery, S.J.) held that abortion was homicide only after the fetus was already “formed” – roughly, the end of the first trimester.

Unitarian Universalist minister William McLennan echoes this point:

For most of the history of the Catholic Church, one did not become a human being or a person until well after conception. Saint Augustine in the fourth century adopted the Aristotelian belief that the human soul didn’t enter the fetus until forty to ninety days after conception. In roughly the same era Saint Jerome emphasized human shape: “The seed gradually takes shape in the uterus, and it [abortion] does not count as killing until the individual elements have acquired their external appearance and their limbs.” The Apostolic Constitutions of the late fourth century allowed abortion if it was done both before the human soul entered and before the fetus was of human shape. Saint Thomas Aquinas of the thirteenth century followed Augustine in not considering the abortion of a non-ensouled fetus to be murder. Pope Innocent III, earlier in the same century as Aquinas, emphasized that the soul enters the body at the time of quickening – when a prospective mother first feels movement of the fetus. When Pope Gregory XIV affirmed the quickening test for ensoulment in 1591, he set the time for it as 116 days into pregnancy, or the sixteenth week.

The Catholic opposition to abortion only began in the late 1800s. What’s more, it was founded in a mistaken belief that dates back to the early days of microscopy: the idea that sperm cells contained a “homunculus”, a tiny but fully formed human being.

The modern anti-choice argument, which insists on personhood from the moment of fertilization, is the most extreme position on abortion that’s ever existed in history. It’s more radical than the prevailing beliefs of eras when women weren’t seen as autonomous people with their own rights. In every sense, it’s a cult of embryo worship.

An acorn is not an oak tree

An embryo or a fetus is a potential person. That is to say, it contains the necessary components to grow into a human body with a human mind. If a long and complex process of development is allowed to occur without interruption, it will become a person in the fullness of time.

But potentiality isn’t the same as actuality. An embryo isn’t a person, just as an acorn isn’t an oak tree, an apple seed isn’t a fruit, a sheaf of wheat isn’t a loaf of bread, and a spool of yarn isn’t a sweater. It’s a basic category error to mistake the preconditions of a thing for the thing itself.

There’s no dispute, even among anti-choice Christians, that an embryo doesn’t possess the bodily structure for human experience. The way they justify themselves is by resorting to the hypothesis of “ensoulment”. This belief holds that at some point, God grants the embryo a supernatural element of consciousness, and that this alone is the source of personhood and moral value.

No test or experiment can detect the soul, so this is an unevidenced assertion. Even if souls existed, when does a fetus acquire one? At the moment of conception? The first trimester? The moment of birth? Theologians through history have postulated different answers, but there’s no way to know. It’s purely a matter of faith.

Such ethereal beliefs can’t be the basis for law in a secular democracy. We have to stick to the facts that everyone can check for themselves.