The Alabama Supreme Court’s ruling declaring frozen embryos human beings set off an uproar in the state and around the nation. But one group has remained largely silent on the issue.
The Alabama Reflector reached out to judicial candidates at all appellate levels, including chief justice, about the Feb. 16 ruling. Nearly all declined comments or did not return messages.
State primary voters will choose nominees for judicial positions and other political offices on March 5.
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Chris McCool, an associate justice for the Alabama Court of Criminal Appeals, was the exception, responding to questions related to his personal history and issues he believes important to the court as part of a personal profile.
McCool, along with Sarah Stewart, an Republican associate justice on the Alabama Supreme Court and a candidate for chief justice, have declined to answer questions on the grounds that any statement they give could violate judicial ethics rules.
Stewart, who joined the majority opinion in the IVF ruling, wrote in an email to say the “case is not final” and that the canons of judicial ethics state that judges may not talk about pending cases.
Greg Griffin, the Democrats’ nominee for chief justice, also declined comment.
The one exception is Bryan Taylor, a former state senator running for the Republican nomination for chief justice.
“As a pro-life conservative, I have fought abortion clinics in court and marched for life in front of Planned Parenthood,” Taylor wrote in a statement released on X, formerly Twitter. “And I believe we can uphold the sanctity of life without subjecting IVF clinics to lawsuit abuse. That’s within the purview of the legislature, and I hope they act quickly with the dual aim to protect life and support families.”
Taylor could not be reached for additional comment.
The Alabama Supreme Court on Feb. 16 ruled that frozen embryos are children, and allowed a lawsuit brought against a Mobile fertility clinic over the destruction of embryos to proceed. The justices said an 1872 law allowing parents to file civil lawsuits over the wrongful death of children covered fertilized eggs and embryos.
The decision sparked national criticism and led many IVF programs in the state to shut down their programs. Sen. Tim Melson, R-Florence, filed a bill on Tuesday that would protect IVF programs from civil or criminal lawsuits. House Minority Leader Anthony Daniels, D-Huntsville, filed a bill last week that would declare that a fertilized egg or embryo outside the body is not a person.
Judges as a rule are not supposed to create conflicts of interest when dealing with the public, though they may have latitude for discussing their views generally, without delving into how they might rule in a specific case.
“The general rule used to be that judges cannot discuss ‘disputed legal issues’ when running for office,” said Steven Lubet, an emeritus professor at Northwestern’s Pritzker School of Law. “The U.S. Supreme Court, however, found that was unconstitutional in a case called Republican Party of Minnesota v. White, and said that in elections, the First Amendment gives voters the right to know what the candidates stand for.”
In Republican Party of Minnesota v. White, Gregory Wersal, a candidate for Minnesota Supreme Court, challenged a provision of the state’s judicial ethics forbidding candidates from announcing their views on disputed legal or political issues, known as an “announce clause.”
In a 5-4 decision in 2002, the justices reversed a decision of the U.S. Eighth Circuit Court of Appeals and declared that the announce clause violated the First Amendment of the U.S. Constitution.
In a Wisconsin Supreme Court race last spring, Wisconsin Supreme Court Justice candidate Janet Protasiewicz said she believed the state’s legislative maps were gerrymandered.
Republicans in the Legislature demanded Protasiewicz recuse and threatened impeachment, but eventually backed down.
A model code of judicial ethics on the American Bar Association’s website states that judges shall not “make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court;”
It goes further to state that they should not, “in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.”
“Every state has adopted some model of the code of judicial conduct,” Lubet said. “Alabama, has I know, because every state has, but there are differences.”
Alabama’s Canon of Judicial Ethics bans judges from making“any promise of conduct in office other than the faithful and impartial performance of the duties of the office; shall not announce in advance the candidate’s conclusions of law on pending litigation; and shall not knowingly misrepresent his or her identity, qualification, present position, or other fact” the rule states.
“As far as I know there is no pending IVF litigation in Alabama right now, right,” Lubet said. “And ‘conclusions of law,’ to me it means something settled or determined rather than a philosophical view or a general view legal approach. So, I would say there is plenty that a candidate could say about the embryo ruling so long as it does not cross the line into a ‘conclusion of law’ on pending litigation.”
Stewart wrote in her email that the case is not over because the parties can file to have the case heard once again. Should they file one, the justices will consider whether to rehear it again.
McCool was cautious as well.
“I will say this, judges, the Supreme Court particularly, must follow the law,” he said. “We don’t need outcome-based decision making at any level, but especially at the supreme court level. The only allegiance the Supreme Court should have is to whatever the law is.”
McCool added that, “any public policy decisions about things like that must come from the Legislature.”
Updated at 8:46 a.m. to add that Greg Griffin, the Democratic nominee for chief justice, had no comment.
