In 2005, the Witherspoon School of Law and Public Policy held a conference in Virginia’s Blue Ridge Mountains. The school’s name was something of a misnomer: Rather than grant JDs, Witherspoon staged seminars and lectures offering lessons in what it summarized as “the comprehensive biblical foundation for our common law and constitutional government.” Its target audience was homeschooled young men. The school itself was a project of Vision Forum, a Texas-based ministry whose founder was also a leader in the Christian Patriarchy movement, which preaches, among other things, that husbands should vote for their wives.
Most sitting judges would go to great pains to avoid such a gathering. But Tom Parker, then a few months into his first term on the Alabama Supreme Court, gladly accepted an invitation to speak at that year’s Witherspoon retreat. Before his election to Alabama’s highest court, Parker had been an aide-de-camp to Chief Justice Roy Moore, whose installation of a granite Ten Commandments monument in the state judiciary building had touched off what became for Alabama both a considerable embarrassment and a genuine constitutional crisis. At Parker’s swearing-in, he made it clear that he had sought the bench to continue his old boss’s spiritual fight.
“The very God of Holy Scriptures, the Creator, is the source of law, life, and liberty,” he declared to an audience that included his eight unsmiling fellow justices.
The atmosphere at Parker’s Witherspoon appearance was far warmer, and his remarks there were even more candid. A DVD of the session shows him gripping the lectern, dressed in a gray suit and blue tie, as he railed against the perceived sins of jurists at every level. “It’s the judges who have legalized abortion and homosexuality ... They are shaking the very foundation of our society.” Parker made it clear that he had no intention of letting legal precedent get in his way. “We cannot fall under that trap,” he insisted. “We have to stand for what’s right.” The one thing he most wished for the young men before him was that they find a way to gain positions of influence and turn them to God’s purpose. No opportunity to do so should be shrunk from or wasted.
In the nine years Parker has now served on the court, he has made the most of his opportunities. Child custody disputes, for instance, have made good occasions to expound on the role of religion in parental rights. (“Because God, not the state, has granted parents the authority and responsibility to govern their children, parents should be able to do so unfettered by state interference,” he wrote in one case.) But Parker has been the most creative in his relentless campaign to undermine legal abortion. Again and again, he has taken cases that do not directly concern reproductive rights, or even reproductive issues, and found ways to use them to argue for full legal status for the unborn.
Those efforts have made Parker a pivotal figure in the so-called personhood movement, which has its roots in a loophole in Roe v. Wade. While that 1973 ruling was creating a broad new right to abortion grounded in a constitutionally protected right to privacy, an often-overlooked passage left an opening for those who would seek its undoing. During oral arguments, the justices had asked Roe’s lawyer what would happen if a fetus were held to be a person under the Constitution. “I would have a very difficult case,” she had replied. In his majority opinion, Justice Harry Blackmun noted that the Supreme Court could find no basis for such status, before adding, “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed.”
Roe’s fiercest critics immediately took up the challenge, launching a push for a constitutional amendment affirming that life begins at conception. But that first effort fizzled, and it’s only in recent years that a new wave of pro-life activists—many of them born after Roe and educated in fundamentalist Christian settings—have once again seized on personhood as a way not just of weakening Roe, but of overturning it. In state after state, they have been pushing to have their beliefs enshrined in policy. This November 4, in Colorado, voters will cast ballots on Amendment 67, an initiative that would include unborn human beings under the definition of “person” and “child” throughout the state’s criminal code. North Dakotans, meanwhile, will decide on Measure 1, which would alter the state constitution to recognize the “inalienable right to life” at every stage of human development.
Even if both initiatives fall short, others will follow. The first one to pass doubtlessly will then be challenged in court, igniting the potentially decisive battle that personhood advocates really want. Their goal is to get to the U.S. Supreme Court—as quickly as possible, while conservatives still dominate.
Christian-educated lawyers have been preparing for that day, churning out articles published by Christian law journals, which are then cited in briefs submitted to courts by Christian-right legal organizations. But given their provenance, the impact of those arguments has been limited. Parker, a graduate of Dartmouth and Vanderbilt who counts Clarence Thomas as a role model, has the imprimatur of his office behind him, and he has used it to build a body of reasoning that can be cited and re-cited, helping to frame and refine the thinking of other lawyers and judges in the battles ahead. “Now, it’s not just an obscure law-review article making these arguments,” said Glen Halva-Neubauer, a Furman University political scientist who studies anti-abortion activism. “It’s not just some treatise that twenty-five of your right-to-life friends know about and nobody else. The mainstream effect is not inconsequential.”
And that, of course, was the idea all along. “What Justice Parker has done,” said Lynn Paltrow, executive director of the nonprofit National Advocates for Pregnant Women, “is explicitly lay out the roadmap for overturning Roe v. Wade.”
The Human Life Amendment, as personhood advocates’ first big push was commonly known, was ahead of its time. In the wake of Roe, pro-choice groups—which then included many centrist Republicans—had the momentum. Personhood proponents hoped in vain that Ronald Reagan’s election and the GOP’s capture of the Senate in 1980 would turn the tide, but the comparatively moderate pro-life mainstream favored a strategy of regulating and restricting access to abortion, rather than betting on repeal. By the time the Supreme Court reaffirmed a fundamental right to abortion in the landmark 1992 case Planned Parenthood v. Casey, the movement had shifted to its own incremental approach. Targeting legislatures in conservative states, it sought tougher penalties for fetal homicides, and, later, birth certificates for stillborn babies. The revised approach alarmed abortion-rights advocates because it was so emotionally resonant—and effective.
The basic holding of Roe obviously remains in place, and more than one million legal abortions are performed in the United States every year. Yet the personhood movement has made significant inroads. Today, 38 states have fetal-homicide statutes that make it a crime to cause the death of an unborn child during an act of domestic violence, for example, or while driving drunk. At least 15 have laws that make the pregnancy of a homicide victim an aggravating factor that can lead to the death penalty. And more and more jurisdictions have begun policing pregnant women themselves. In almost every state, women have been arrested or detained for exposing their fetuses to illegal drugs; in more than half of them, mothers can lose some or even all of their custody rights if they or their newborn tests positive for controlled substances. In some places, legislators have written laws expressly authorizing such steps. (Tennessee’s new statute goes the furthest, allowing pregnant drug-users to be charged with criminal assault.) More commonly, it’s constables and prosecutors who’ve taken the initiative, reinterpreting existing laws to detain and arrest mothers. “One clever thing about using drug cases this way,” said Sara Zeigler, a feminist scholar and dean at Eastern Kentucky University, “is that the average person is not going to be at all sympathetic” to a pregnant woman who gets high. Thanks to moves such as these, the idea that a fetus has rights separate from its mother’s has taken root in the law and flourished, even when the more controversial subject of fetal personhood is not directly invoked.
A big reason that these piecemeal personhood triumphs haven’t translated into something more sweeping is because courts haven’t been willing to explicitly take up the issue. “If you are a careful, strict constructionist kind of judge, you don’t necessarily connect the dots,” Halva-Neubauer said. Parker not only connects the dots, “he uses a rocket launcher to go after these cases and say, Hey, this is a case that could be used to overrule Roe, and I’m going to show you how.” In 2011, for example, Parker and his fellow justices heard a case involving a wrongful death lawsuit brought by a woman who blamed her miscarriage on the negligence of her doctors. Under Alabama precedent, such suits weren’t allowed unless the fetus had developed to the point where it could survive outside the womb. But in Hamilton v. Scott, the court voted to strike down that limit. Parker wrote the majority opinion.
Then he wrote some more. As a judge, Parker has developed the decidedly unusual habit of authoring concurring opinions to his own majority rulings in cases that hold particular interest for him. In his concurrence to Hamilton, he cited advances in medical and scientific technology as part of a larger, painstaking argument asserting that a centerpiece of Roe—that states cannot ban abortion before the point of viability—was “arbitrary,” “incoherent,” and “mostly unsupported by legal precedent.”
Zeigler marvels at how Parker has used the concurrence to strategic effect. “It’s like he’s writing a law-review article without having to go through that process, plus he gets a much wider audience,” she said. And unlike a dissent, a concurrence conveys a certain legitimacy—the idea that the author is on the winning side. “It is much likelier to be noticed and captured and repeated in future cases.”
In 2013, a case even better suited to Parker’s cause landed on the Alabama Supreme Court docket. One of the plaintiffs, Hope Ankrom, from Coffee County south of Montgomery, had pleaded guilty after her son tested positive for cocaine and marijuana at birth. The other, Amanda Kimbrough, from rural northwestern Alabama, had used methamphetamine while pregnant, giving birth 15 weeks prematurely to a boy who soon died. Facing the possibility of life in prison, she opted for a plea deal and a ten-year sentence in the notorious Tutwiler state penitentiary for women. But no Alabama laws specifically authorized the women’s arrests and convictions. Instead, prosecutors had charged them under a felony “chemical-endangerment” statute enacted in 2006 to protect children from the noxious fumes and explosive chemicals that make home-based meth labs so dangerous.
Lawyers for Ankrom and Kimbrough argued that the state had grossly overreached, pointing out that legislators had debated—and rejected—expanding the meth-lab law to cover pregnant women. Parker, along with five other justices, didn’t buy it. He declared that the chemical-endangerment law did indeed apply to fetuses exposed to drugs in the womb. But again, Parker didn’t leave it at that. His main opinion in Ex Parte Ankron and Kimbrough ran 55 pages. His concurrence ran another 20.
This time, Parker’s goal was to establish the many ways that existing statutes recognize fetuses as persons with legally enforceable rights. The document is a kind of masterpiece of pro-life reasoning. “He’s someone who really takes time to read history and the development of jurisprudence,” said Mat Staver, the head of Liberty Counsel and a leading Christian legal theorist. “He’s not a surface thinker.” Step by step, Parker lays out his evidence: laws that give inheritance rights to unborn children, laws that ban pregnant inmates from being executed, laws that give fetuses legal guardians for the purposes of protecting their interests, laws that allow parents to sue for damages if fetuses are injured or killed as the result of negligence or some other wrongful act. Several pages of the concurrence consist almost entirely of lists of statutes from around the country conferring fetal rights. “Today, the only major area in which unborn children are denied legal protection is abortion,” he concluded, “and that denial is only because of the dictates of Roe.”
This past spring, as if to punctuate its reasoning, the Alabama Supreme Court confronted a virtually identical case, and, with Parker again writing the majority opinion, reached a virtually identical conclusion. In this concurrence, Parker called on the U.S. Supreme Court to resolve the matter of full fetal rights once and for all.
The Court will soon have its chances, if it wants to take them. The U.S. Court of Appeals just upheld a set of abortion regulations in Texas that have shut down most of that state’s abortion clinics, the appeal of which the justices could well agree to hear. Meanwhile, the National Advocates for Pregnant Women is putting together a lawsuit that would challenge Alabama’s chemical-endangerment prosecutions, which now number at least 130. Going to the Supreme Court on any issue that touches on abortion feels increasingly risky for pro-choice supporters. Anthony Kennedy remains the swing vote, and, on the one hand, he has argued that people must be allowed “to define one’s own concept of existence.” On the other, he has upheld almost every abortion restriction to come before him. Staver is hopeful that Kennedy’s concern for “the dignity of the individual,” a recent theme of his ever-unpredictable reasoning, may make him newly amenable to overturning Roe on personhood grounds.
Pro-choice advocates, not surprisingly, are deeply worried about any ideas that Parker’s writings could give the justices in Washington. “Parker is pointing out all the ways the law treats the fetus as a person already,” Zeigler, the feminist scholar, said. “The pro-choice argument, meanwhile, is that the personhood of the fetus hinges entirely on the women’s perception of it.” To the question of what constitutes life, she continued, “Parker has answers. The pro-choice side is more, It depends. ... People will really struggle with that.”
Correction: A previous version of this story said Justice Kennedy had upheld every abortion restriction to come before him. In fact, in Planned Parenthood v. Casey, he voted against a spousal notification requirement while upholding other limits in the Pennsylvania law.