This is an opinion column.

Boring. Predictable. That’s how Greg Cook —Harvard Law School classmate with former President Barack Obama—described himself a couple of years ago while running for a seat on the Alabama Supreme Court. Or, rather, the two words described his take on how judges should interpret the law.

“Judges should not legislate from the bench,” he said then, “but should apply the plain meaning of the law. It may sound boring and predictable, but it’s who I am.”

Plain meaning, Plain. Simple

But boring? Boring? Not in Alabama.

Predictable? Sometimes.

Cook won the Republican primary and general election and took his seat on the nine-person court in January 2023. Little more than a year later, the avid outdoorsman, former Air Force Captain, and active Boy Scout leader was the lone fully dissenting voice of reason on a ruling that gutted the plain meaning of a 152-year-old law and is reverberating across a nation grappling with the meaning—and beginning—of “life.”

A previous judge threw out the case with three couples seeking to sue a Mobile hospital where a wandering patient destroyed their frozen embryos. Upon appeal, the Supreme Court said the plaintiffs could take action under the 1872 Wrongful Death Act of a Minor Act because the frozen specimens were “children.”

That’s what Reverend, I mean, Chief Justice Tom Parker said, citing scriptures, theologians, and former Judge Roy Moore’s friend to justify the cataclysmic call.

That’s what he said even though there was no way on God’s Earth the law’s originators could have defined an unfertilized embryo as a “minor child” since it would be another 102 years before Louis Brown of England became the world’s first “test-tube” baby and decades more for in vitro fertilization a viable pregnancy option. Today it accounts for about 2% of births.

Boring? Not here.

Almost immediately following the ruling, fertilization clinics across the state slammed shut over concerns of legal liability if frozen embryos, for any reason, are destroyed. Suddenly, couples already struggling to become parents were thrust into limbo hell—unable to undergo in vitro treatments and worried they may have to store unused frozen eggs forever, at an almost incalculably high cost.

Or risk going to jail.

Predictable?

Cook called it.

In a thoughtful, exhaustingly researched, and supported 56-page dissent, he wrote: “No rational provider would continue to provide services for creating and maintaining frozen embryos, knowing they must continue to maintain such frozen embryos forever, risk the penalty of a wrongful death claim for punitive damages.”

Additionally, he saw the awful impact of the ruling on Alabama couples.

“There’s no doubt that there are many Alabama citizens planning to be parents who will no longer have that opportunity. And there is no doubt that there will be fewer babies born.

“Ending the creation of frozen embryos will undoubtedly cause significant consequences that will affect the future lives of thousands of Alabama citizens for years to come,” he added. “And the babies who will not be born.”

Pro-life? Not here.

“I respectfully dissent,” is how Cook began. He acknowledged the dilemma the case presented at a time when the nation is embroiled in debates over abortion, over a woman’s right to choose, over life. Yet the justice remained steadfast to his pre-election words, writing that the court should eschew the rhetoric and stay within the bounds of the law.

Even facing “difficult moral questions, our court must stay within the bounds of our judicial role,” he wrote.

In support of this view, he cited Dobbs v. Jackson, when the U.S. Supreme Court overturned Roe v. Wade and a woman’s right to choose an abortion. Cook wrote that SCOTUS ruled, “…respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance…. Courts do not substitute their social and economic beliefs for the judgement of the legislative bodies.”

Cook concurred with the lead opinion on at least one front. “Although I agree with much of what Chief Justice Parker so eloquently states … “regarding the ‘sanctity of unborn life,’ I do not agree with his distinction of the ‘effect of constitutional policy.’ I believe he is mistaken when he asserts that the people of Alabama explicitly told ‘all three branches of government what they ought to do.’

“There is no language in the constitutional amendment mentioning private causes of action or money damages for frozen embryos or IVF.

“[T]he main opinion,” he added, “violates this fundamental principle—that is, that the legislative branch, not the judicial branch that updates laws—by expanding the meaning of the Wrongful Death Act of 1872 without an amendment by the Legislature.”

That’s the core of Cook’s dissent. The 1872 law allows the parents of a deceased child to, within six months of the death, seek punitive damages “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person.”

The original law, however, did not define “minor child.”

Cook cited DeKalb County LP Gas v Suburban Gas in 1998, in which the court ruled: “Substituting our own meaning ‘turn[s] this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers’.”

Cook wrote: “…I believe the main opinion overrules a recent Wrongful Death Act case law that required ‘congruence’ between the definition of ‘person’ in Alabama’s criminal homicide statutes and the definition of ‘minor child’ in the Wrongful Death Act.”

Not even the couple seeking the claim wanted to catapult in vitro fertilization into chaos, Cook wrote: “The plaintiffs themselves explained in oral argument, ‘We are supporters of in vitro fertilization.’ The notion that they will do anything to hinder or impair the right or access to the treatment therapy is flat wrong.”

Cook also acknowledges disagreement with a portion of the defendants’ argument that “the trial court properly dismissed the plaintiffs’ negligence and wantonness claims because the frozen embryos each represent ‘a life’. I’m deeply troubled by this argument and the consequences that could result from adopting this position.

“It’s not my role to judge whether ending this medical procedure is good or bad – but the main opinion doubtless will have a huge impact on many Alabamians,” Cook also wrote. “And it underscores the need to have the legislature—not the court—to address these issues through legislative process.”

Indeed, both the Alabama Senate and House are scurrying to clean up this mess—if they can do so without requiring an amendment to the state constitution, as Dem. Chris England has stated.

Cook noted that the original 1872 law was codified in 1876 but still did not define “minor child.” He cited the 1974 case Eich v Town of Gulf Shores, which ruled that parents of an eight-and-a-half-month-old still born fetus had a right to seek a wrongful action. Cook added, however, thoughts on wording in that court’s order. “It is not our role to ‘breathe life’ into a statute by updating it or amending it.”

The essence of the original law, Cook wrote, “has remained unchanged from the act’s initial inception in 1872, and no changes ever been made to it bearing on the meaning of the term ‘minor child’. “

Cook asked: “So what did the common law indicate in 1872? There is no doubt that the common law did not consider an unborn infant to be a child capable of being killed by the purpose for the purpose of civil liability or criminal homicide liability. In fact, for 100 years after the passage of the Wrongful Death Act our case law did not allow a claim for the death of an unborn infant.

It’s a commitment to get through the full dissent, but it’s worth it. You may find it here. Cook’s dissent begins on page 75.

Near its conclusion, Cook wrote: “No court—anywhere in the country—has reached the conclusion the main opinion reaches and the main opinions holding almost certainly ends the creation of frozen embryos through in vitro fertilization in Alabama.”

All too predictable. Never boring.

I’m a member of the National Association of Black Journalists Hall of Fame and a Pulitzer Prize finalist for commentary. My column appears on AL.com, as well as the Lede. Tell me what you think at [email protected], and follow me at twitter.com/roysj, or on Instagram @roysj