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How To Write A Counterclaim For A Successful Result

how to write a counterclaim

You might have probably heard about a counterclaim or written one that did not go well with you, which is why you are here. We understand your frustrations and anxiety about writing counterclaims, which is why we developed this comprehensive article.

Here is what to expect:

An in-depth explanation of what a counterclaim is The necessity of a counterclaim How to write a good counterclaim Characteristics of an excellent counterclaim Structure and formatting of counterclaims

After reading this post, you will have all the information you need to craft an award-winning paper. We will not leave anything to chance until you know how to write a counterclaim like a top-class student!

Table of Contents

What is a counterclaim in writing, why is a counterclaim necessary, how to write a counterclaim from scratch, detailed guide on how to start a counterclaim paragraph, how to write rebuttal, characteristics of a good counterclaim, example of a good counterclaim.

A counterclaim refers to an argument that opposes the author’s claim. The writer presents the claim and then refutes it, giving reasons why others should not take up the contrary view and agree with their initial stand.

The counterclaim opposes the thesis statement in your essay. So, this is how a counterclaim comes about:

  • You first introduce the topic in the introductory paragraph
  • Create a thesis statement in the last sentence
  • Write a counterclaim that rebuts the initial argument

Many students fail to appreciate the fact that there is a difference between a claim and a counterclaim. The claim demonstrates your position of argument or the assertion of a fact, whereas a counterclaim negates a specific claim by refuting it.

Any top-rated argumentative will always have a counterclaim which disagrees with and disapproves of a claim. Such a claim also provides reasoning that further clarifies a particular argument. The two main purposes of a counterclaim are as follows:

It enhances the credibility of the author: A strong argumentative essay will utilize the rhetorical appeal of ethos. With a counterclaim, a writer will prove that they researched extensively on the topic and are not trying to hide possible information from the audience. It also allows the writer to provide a rebuttal to the essay. The rebuttal is used to disprove the counterclaim within the writer’s argument.

For instance, if the claim is that the government should ban gun use, the counterclaim would be that it should not ban it because it infringes on human rights. There should always be reasons and evidence for you to have a successful counterclaim.

In the next few lines, we will provide all you need to know about starting a counterclaim and delivering the best! So stay tuned.

Every successful essay begins with thorough background research on the topic of discussion. Exploring all possible angles of your essay before embarking on the writing process is recommended—those who end up with a good counterclaim put in extra hours in research and extensive consultation.

You can read thousands of articles on how to write a counterclaim, but without the right background research strategies, that great essay might amount to nothing. So, if you want to crack your counterclaim paragraph like a guru, here are excellent tips for you:

Understand your topic Explore what previous authors have done on it Identify the knowledge gaps Seek facts to defend your claim

Once you have all the information needed for your topic, nothing will stand in the way of you writing a top-notch paper that will impress your professor. When you have factual proof of every statement you make in your essay, you will have a non-biased and credible paper. That means that the sources you use should always be credible and directly relevant to the topic of your essay.

After stating all the base knowledge you need about counterclaims, we now want to dive into the practical part of writing a counterclaim argument. Let’s explore how to write counterclaims by looking at the elements needed:

  • The main counterclaim: It states an opposing argument to the claim.
  • The evidence includes a previous position to show that others welcome the view.
  • An explanation entails providing reasons why people hold the particular view you presented.
  • A rebuttal: Here, you will explain the weakness of the counterclaim and present show why your original position is correct.

The process might be challenging initially, but with the right tools and expert advice, you will be up and running in minutes. A counterclaim is included in argumentative writing to address the opposite side of the argument and provide a rebuttal.

The process of writing an outstanding counterclaim in an argumentative essay is as follows:

Where do you put a counterclaim in an essay? Every top-ranking essay begins with a catchy intro comprising statistics or a rather dramatic intro to a particular problem. The thesis statement follows, and the then claim comes on stage. Therefore, the counterclaim comes after you have backed up your claims with evidence and further arguments. How long is the counterclaim? It depends on the number of counterclaims and the overall length of your essay. A typical counterclaim should be at least one paragraph long. Remember that you are not just stating it but explaining why it is so. That is why most guides on writing a counterclaim and rebuttal will recommend either writing them in one paragraph or separately. What different points of view do others hold? You should always understand all the possible points that may arise to counter your claim. Researching why people oppose your claim will give you room for a balanced and reliable paper. It requires a creative mind to determine how your claim goes against the common view. How to introduce a counterclaim now: The general rule is that you should present the contrary opinion fairly. You will only be ready to craft a brilliant counterclaim once you dive into the possible arguments that others who oppose your thesis make. Sincerely present the contrary opinion fairly.

Always remember to use transitions when moving on to present your counterclaim. Just like in a debate, the contrary side will come after the proposers have made their submissions. Therefore, you can begin your counterclaim paragraphs with the following:

  • On the contrary, side
  • Critics say that

Having presented the other side, you will detail why people also hold that view. It is where the evidence comes in to solidify your counterclaim.

It is advisable to have it in a similar paragraph where your counterclaim is, but if that is not possible, begin it in a new paragraph. However, always remember to keep it short while bringing out the following:

  • How the contrary position in your counterclaim is false or weak.
  • Presenting the advantages in the counterclaim but giving reasons why the opposite view may not hold water.
  • Describe how your main argument outweighs the risks in the counterclaim.

After introducing the counterclaim, you have to discuss why the counterclaim is incorrect. You can start the rebuttal in several ways, such as:

Despite this information Nevertheless However

It is your opportunity to prove why the contrary view is wrong.

You cannot achieve this milestone without considering all sides of the argument first. That is why most researchers in college and university take their time before beginning the writing process. It provides a base for the facts and opinions and saves the time one will spend completing the argumentative essay.

Acknowledging the valid points of the other side is necessary for any form of argumentative writing. This practice eliminates the thought of narrow-mindedness from the reader’s point of view, which may make your essay less effective.

Instead of making your argument look weak, a counterclaim will strengthen your essay by proving that you thoughtfully considered all possible angles before writing your essay. Nobody will accuse you of bias or inadequate research when you have a formulated counterclaim.

A good counterclaim, therefore:

Acknowledges what the opposing side says Provides evidence from the opposing side Refutes the point of view and evidence

It is also crucial to state that when you have more than one claim in your paper, there is always an option of writing a counterclaim for each. You are not limited to presenting the different counterclaims in the same essay. However, follow the structure outline above in terms of length and format.

Additional characteristics of a world-class essay include:

  • Objectivity in the language use
  • Fairness in the diction
  • Evidence to back up the counterclaim
  • Fairness in the rebuttal

By validating any underlying concerns, you eliminate room for doubt or error. Remember also to explain why your argument works in that context.

Below is a brief example of what a good counterclaim can look like, from professional dissertation writers :

“On the other hand, some students say homework presents unnecessary stress and pressure. This point of view makes sense because the article states that too much homework may be overwhelming for students, which is why most of them do not complete it. However, homework does not harm the student because the article also says that homework is necessary to test students’ understanding after classroom learning. Therefore, even though homework may cause stress and pressure on the student, it does not harm the student in any way.”

From the example, you can note the following:

Phrases that can begin a counterclaim:

On the other hand, some people say Admittedly, some people say Certainly, some people say

Phrases to refer to the initial claim:

However Nevertheless On the other hand

Phrases to bring paragraph to a conclusion:

Thus Therefore As a result

A good counterclaim will always give you an edge over your competitors in any case.

Writing A Counterclaim Can Be Very Easy

Writing an all-inclusive counterclaim is not a big deal if you have all the facts rights – our writing service and master thesis help offers top-notch assistance with an incredible team of writers and research gurus. We will help you identify winning arguments and provide you with the best rebuttals.

Do not second guess what you will score in your counterclaim essay when you can try out our custom thesis writing service today. Make your pick today and improve your score effortlessly.

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When you make an argument in an academic essay, you are writing for an audience that may not agree with you. In fact, your argument is worth making in the first place because your thesis will not be obvious—or obviously correct­—to everyone who considers the question you are asking or the topic you’re addressing. Once you figure out what you want to argue—your essay’s thesis—your task in writing the essay will be to share with your readers the evidence you have considered and to explain how that evidence supports your thesis.

But just offering your readers evidence that supports your thesis isn’t enough. You also need to consider potential counterarguments—the arguments that your readers could reasonably raise to challenge either your thesis or any of the other claims that you make in your argument. It can be helpful to think of counterarguments to your thesis as alternative answers to your question. In order to support your thesis effectively, you will need to explain why it is stronger than the alternatives.

A counterargument shouldn’t be something you add to your essay after you’ve finished it just because you know you’re supposed to include one. Instead, as you write your essay, you should always be thinking about points where a thoughtful reader could reasonably disagree with you. In some cases, you will be writing your essay as a counterargument to someone else’s argument because you think that argument is incorrect or misses something important. In other cases, you’ll need to think through—and address—objections that you think readers may have to your argument.

While it may be tempting to ignore counterarguments that challenge your own argument, you should not do this. Your own argument will be stronger if you can explain to your readers why the counterarguments they may pose are not as strong or convincing as your own argument. If you come up with a counterargument that you can’t refute, then you may decide to revise your thesis or some part of your argument. While that could be frustrating in the moment, challenging your own thinking is an important part of the writing process. By considering potential counterarguments, you will figure out if you actually agree with your own argument. In many cases, you will discover that a counterargument complicates your argument, but doesn’t refute it entirely.

Some counterarguments will directly address your thesis, while other counterarguments will challenge an individual point or set of points elsewhere in your argument. For example, a counterargument might identify

  • a problem with a conclusion you’ve drawn from evidence  
  • a problem with an assumption you’ve made  
  • a problem with how you are using a key term  
  • evidence you haven’t considered  
  • a drawback to your proposal  
  • a consequence you haven’t considered  
  • an alternative interpretation of the evidence 

Example 

Consider the following thesis for a short paper that analyzes different approaches to stopping climate change:

Climate activism that focuses on personal actions such as recycling obscures the need for systemic change that will be required to slow carbon emissions.

The author of this thesis is promising to make the case that personal actions not only will not solve the climate problem but may actually make the problem more difficult to solve. In order to make a convincing argument, the author will need to consider how thoughtful people might disagree with this claim. In this case, the author might anticipate the following counterarguments:

  • By encouraging personal actions, climate activists may raise awareness of the problem and encourage people to support larger systemic change.  
  • Personal actions on a global level would actually make a difference.  
  • Personal actions may not make a difference, but they will not obscure the need for systemic solutions.  
  • Personal actions cannot be put into one category and must be differentiated.

In order to make a convincing argument, the author of this essay may need to address these potential counterarguments. But you don’t need to address every possible counterargument. Rather, you should engage counterarguments when doing so allows you to strengthen your own argument by explaining how it holds up in relation to other arguments. 

How to address counterarguments 

Once you have considered the potential counterarguments, you will need to figure out how to address them in your essay. In general, to address a counterargument, you’ll need to take the following steps.

  • State the counterargument and explain why a reasonable reader could raise that counterargument.  
  • Counter the counterargument. How you grapple with a counterargument will depend on what you think it means for your argument. You may explain why your argument is still convincing, even in light of this other position. You may point to a flaw in the counterargument. You may concede that the counterargument gets something right but then explain why it does not undermine your argument. You may explain why the counterargument is not relevant. You may refine your own argument in response to the counterargument.  
  • Consider the language you are using to address the counterargument. Words like but or however signal to the reader that you are refuting the counterargument. Words like nevertheless or still signal to the reader that your argument is not diminished by the counterargument. 

Here’s an example of a paragraph in which a counterargument is raised and addressed.

Image version

counter

The two steps are marked with counterargument and “counter” to the counterargument: COUNTERARGUMENT/ But some experts argue that it’s important for individuals to take action to mitigate climate change. In “All That Performative Environmentalism Adds Up,” Annie Lowery argues that personal actions to fight climate change, such as reducing household trash or installing solar panels, matter because change in social behavior can lead to changes in laws. [1]  

COUNTER TO THE COUNTERARGUMENT/ While Lowery may be correct that individual actions can lead to collective action, this focus on individual action can allow corporations to receive positive publicity while continuing to burn fossil fuels at dangerous rates.

Where to address counterarguments 

There is no one right place for a counterargument—where you raise a particular counterargument will depend on how it fits in with the rest of your argument. The most common spots are the following:

  • Before your conclusion This is a common and effective spot for a counterargument because it’s a chance to address anything that you think a reader might still be concerned about after you’ve made your main argument. Don’t put a counterargument in your conclusion, however. At that point, you won’t have the space to address it, and readers may come away confused—or less convinced by your argument.
  • Before your thesis Often, your thesis will actually be a counterargument to someone else’s argument. In other words, you will be making your argument because someone else has made an argument that you disagree with. In those cases, you may want to offer that counterargument before you state your thesis to show your readers what’s at stake—someone else has made an unconvincing argument, and you are now going to make a better one. 
  • After your introduction In some cases, you may want to respond to a counterargument early in your essay, before you get too far into your argument. This is a good option when you think readers may need to understand why the counterargument is not as strong as your argument before you can even launch your own ideas. You might do this in the paragraph right after your thesis. 
  • Anywhere that makes sense  As you draft an essay, you should always keep your readers in mind and think about where a thoughtful reader might disagree with you or raise an objection to an assertion or interpretation of evidence that you are offering. In those spots, you can introduce that potential objection and explain why it does not change your argument. If you think it does affect your argument, you can acknowledge that and explain why your argument is still strong.

[1] Annie Lowery, “All that Performative Environmentalism Adds Up.” The Atlantic . August 31, 2020. https://www.theatlantic.com/ideas/archive/2020/08/your-tote-bag-can-mak…

  • picture_as_pdf Counterargument

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How To Write a Counterclaim For Your Thesis Or Dissertation

how to write a counterclaim

Are you writing an argumentative essay and want to score top grades? One of the things that you must do is to consider both sides of the central argument. It is true that the primary purpose of your argumentative paper is taking a side on the selected topic and supporting it as much as possible to persuade the reader to agree with your position. However, not bringing out a counterclaim/s is likely to make the reader, professor or class teacher consider you narrow-minded.

Despite its importance, how to write a counterclaim and rebuttal turns out to be a challenging undertaking for most students because it has to be done carefully to avoid weakening the main argument. So, how do you write a great counterclaim? Keep reading for a step-by-step guide on how to write a counterclaim paragraph like an expert.

Table of Contents

What is a counterclaim in writing, how to write a counter claim, how to start a counterclaim paragraph, good examples of a counterclaim paragraph, 8 expert tips for writing a great counterclaim.

Before making a counterclaim, it is prudent to ensure the thesis clearly demonstrates what your central argument is. Therefore, you should not include the counter claim in this section of the paper.

A counterclaim is included in argumentative writing to demonstrate to the reader that you have comprehensively researched both sides of the topic. It is very important to win over readers who might have a different point of view from that presented in the paper. Furthermore, a carefully presented counterargument can make your essay interesting and help you get more points compared to other students in class.

To write a great essay, you need to clearly bring out the main stand of your paper and bring it out vividly and then capture the counterarguments. The following four steps show how to write rebuttal for your essay like a pro.

  • Step One: Research the Main Counterarguments for Your Thesis The first step is comprehensively researching your main points and counterarguments. As you dig deeper into counterarguments, try to establish why people disagree with your stand. If you are writing about the importance of addressing global warming right to address, what is driving the dissenting views? Is the alternative opinion based on facts?
  • Write the counterclaim after highlighting the main thesis: Make sure that your stand on the essay is clear so that the reader can appreciate the difference with the dissenting views.
  • Place the counterclaim in the paragraphs: If your essay has several arguments that require counterclaims, you can place them in the paragraphs. The best position is after highlighting the argument in every paragraph.
  • Before the conclusion: This is the most preferred point for placing counterclaims. It works best because the university or college professor will have gone through the essay and a good counterclaim will demonstrate you did comprehensive research.

Next, put down the rebuttal. The rebuttal should be used to demonstrate why the counterargument is weak and, therefore, the thesis of the essay the best /option debate. When presenting the rebuttal, here are some suggestions:

  • The main reason why the counterclaim is false or weak.
  • Acknowledgment that the counter argument has some merit, but there is a reliable solution to the challenge. The solution can also demonstrate that the counterargument is baseless.
  • Demonstrate that the benefits presented in the essay far outweigh the dangers of the counter arguments.

For most students, how to start a counterclaim is a big challenge, but we have the best suggestions. Target ensuring the contrast with the main argument of the essay is demonstrated well and the flow of key points is strengthened. So, here are some great examples of how to start a counter argument paragraph:

“The contrasting viewpoint indicates that …” “On the other edge of the argument, some researchers are concerned about …” “Critiques of this viewpoint suggest that …” “The opposing debate indicates that …”

Now that we have highlighted the best way to write a great counter claim for your essay, here are some examples.

Example One: Points Out the Weakness of the Counterarguments

Topic: The Dangers of Dams

Those of the contrasting views indicate that dams come with many benefits for both individuals and cities. For example, the water reservoirs help provide water for land irrigation, generate hydro-electricity, and stabilize water supplies. They see these as important attributes that warrant having dams in their location.

The risks that come with installing dams are, however, far too risky. Indeed, there are alternative solutions that we can use to avoid the threats from dams. Good examples are using green technology, such as solar panels, for energy generation and afforestation to not only stabilize water supply but also protect wildlife habitats. New technologies for water harvesting and storage can also help to guarantee communities reliable water supplies.

Example Two: Agrees with Counter Claim and Offer New Evidence to Counter It

Topic: Dangers of E-Cigarettes

Proponents of e-cigarettes argue that they do not cause major secondary pollution to other people in the vicinity because only water vapor is released into the atmosphere. They also insist that there is no carbon monoxide released into the air. Although this is true, the proponents fail to outline that e-cigarettes come with other very harmful elements that are released into the atmosphere.

Example Three: Notes Inconsistencies in Counterargument

Topic: The Benefits of After-School Sports

Critiques of after-school sports posit that it raises the danger of sports-related injuries. Such injuries, as brought out by Liam and Mathews (2009), can increase absenteeism. Although true because most sports come with some risks, the opponents fail to appreciate the huge benefits that come from after-school sports. Top sports people, from Thomas to Jeremy of the national soccer team, discovered their talents during after-school sports at an early age.

Finally, here are some tips to keep in my when writing your counterclaim for your thesis or essay. Also if you’re writing a full thesis don’t hesitate to get abstract writing services online once you need them.

  • Always make your counter arguments as short as possible.
  • Remain objective, especially with the language used in presenting the counterclaim. For example, you should avoid arguing that some researchers “erroneously hold the view that …” Instead, simply outline the counterclaim and give an alternative opinion.
  • Avoid placing the counterargument on the conclusion because it requires a separate paragraph for rebuttal. This could easily distort the structure of the essay and the flow of ideas.
  • Consider honing your skills in writing counterarguments by reading through other essays to see how experts did it.
  • Make sure you are fair when presenting the counter claims. For a school essay, you might simply target throwing some verbal punches, but a college or university-level paper might require going into greater details. For example, you need to demonstrate why your argument is right and validate your arguments against those of the opposing school of thought.
  • If your lecturer has a specific guideline or preference for writing the counter claims, make sure to follow it.
  • Just like the main idea of your essay, the counterclaim should also be supported by proof gathered during research. However, ensure to demonstrate why it is weaker than the main argument presented in the essay.
  • Proofread the essay after writing the counterclaim to ensure it is error-free, and all the points are flowing smoothly from the start to the end. You might want to ask a friend or professional writers to help with proofreading so that even the hidden mistakes are noted.

Seek Assistance Of Expert Writers To Write Your Argumentative Thesis

This guide has demonstrated the best strategies to use when writing a counterclaim in an essay. Remember that to get more points and stand out in class, you must focus on all areas of the essay, from the introduction and thesis statement writing to preparing counterclaim argument and conclusion. So, does the entire process appear challenging? Many students often get stuck when writing their essays and the best way out is to seek help from a writing service.

Students often get stuck because they have poor research and writing skills or the time is limited. For others, the whole concept of counterarguments, especially how to introduce a counterclaim, is too complex. However, we have creative writers at our writing service, and you can count on them to prepare A-rated papers. They have excellent essay writing skills, and no matter the topic of your argumentative essay; they guarantee the best results.

Our custom thesis help online is also affordable and easy to reach for all students. In addition to essays, our coursework and thesis writing service are excellent. Talk to customer support or visit our order page to get all the assistance you want.

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Purdue Online Writing Lab Purdue OWL® College of Liberal Arts

Developing Strong Thesis Statements

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These OWL resources will help you develop and refine the arguments in your writing.

The thesis statement or main claim must be debatable

An argumentative or persuasive piece of writing must begin with a debatable thesis or claim. In other words, the thesis must be something that people could reasonably have differing opinions on. If your thesis is something that is generally agreed upon or accepted as fact then there is no reason to try to persuade people.

Example of a non-debatable thesis statement:

This thesis statement is not debatable. First, the word pollution implies that something is bad or negative in some way. Furthermore, all studies agree that pollution is a problem; they simply disagree on the impact it will have or the scope of the problem. No one could reasonably argue that pollution is unambiguously good.

Example of a debatable thesis statement:

This is an example of a debatable thesis because reasonable people could disagree with it. Some people might think that this is how we should spend the nation's money. Others might feel that we should be spending more money on education. Still others could argue that corporations, not the government, should be paying to limit pollution.

Another example of a debatable thesis statement:

In this example there is also room for disagreement between rational individuals. Some citizens might think focusing on recycling programs rather than private automobiles is the most effective strategy.

The thesis needs to be narrow

Although the scope of your paper might seem overwhelming at the start, generally the narrower the thesis the more effective your argument will be. Your thesis or claim must be supported by evidence. The broader your claim is, the more evidence you will need to convince readers that your position is right.

Example of a thesis that is too broad:

There are several reasons this statement is too broad to argue. First, what is included in the category "drugs"? Is the author talking about illegal drug use, recreational drug use (which might include alcohol and cigarettes), or all uses of medication in general? Second, in what ways are drugs detrimental? Is drug use causing deaths (and is the author equating deaths from overdoses and deaths from drug related violence)? Is drug use changing the moral climate or causing the economy to decline? Finally, what does the author mean by "society"? Is the author referring only to America or to the global population? Does the author make any distinction between the effects on children and adults? There are just too many questions that the claim leaves open. The author could not cover all of the topics listed above, yet the generality of the claim leaves all of these possibilities open to debate.

Example of a narrow or focused thesis:

In this example the topic of drugs has been narrowed down to illegal drugs and the detriment has been narrowed down to gang violence. This is a much more manageable topic.

We could narrow each debatable thesis from the previous examples in the following way:

Narrowed debatable thesis 1:

This thesis narrows the scope of the argument by specifying not just the amount of money used but also how the money could actually help to control pollution.

Narrowed debatable thesis 2:

This thesis narrows the scope of the argument by specifying not just what the focus of a national anti-pollution campaign should be but also why this is the appropriate focus.

Qualifiers such as " typically ," " generally ," " usually ," or " on average " also help to limit the scope of your claim by allowing for the almost inevitable exception to the rule.

Types of claims

Claims typically fall into one of four categories. Thinking about how you want to approach your topic, or, in other words, what type of claim you want to make, is one way to focus your thesis on one particular aspect of your broader topic.

Claims of fact or definition: These claims argue about what the definition of something is or whether something is a settled fact. Example:

Claims of cause and effect: These claims argue that one person, thing, or event caused another thing or event to occur. Example:

Claims about value: These are claims made of what something is worth, whether we value it or not, how we would rate or categorize something. Example:

Claims about solutions or policies: These are claims that argue for or against a certain solution or policy approach to a problem. Example:

Which type of claim is right for your argument? Which type of thesis or claim you use for your argument will depend on your position and knowledge of the topic, your audience, and the context of your paper. You might want to think about where you imagine your audience to be on this topic and pinpoint where you think the biggest difference in viewpoints might be. Even if you start with one type of claim you probably will be using several within the paper. Regardless of the type of claim you choose to utilize it is key to identify the controversy or debate you are addressing and to define your position early on in the paper.

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Identifying Thesis Statements, Claims, and Evidence

Thesis statements, claims, and evidence, introduction.

The three important parts of an argumentative essay are:

  • A thesis statement is a sentence, usually in the first paragraph of an article, that expresses the article’s main point. It is not a fact; it’s a statement that you could disagree with.  Therefore, the author has to convince you that the statement is correct.
  • Claims are statements that support the thesis statement, but like the thesis statement,  are not facts.  Because a claim is not a fact, it requires supporting evidence.
  • Evidence is factual information that shows a claim is true.  Usually, writers have to conduct their own research to find evidence that supports their ideas.  The evidence may include statistical (numerical) information, the opinions of experts, studies, personal experience, scholarly articles, or reports.

Each paragraph in the article is numbered at the beginning of the first sentence.

Paragraphs 1-7

Identifying the Thesis Statement. Paragraph 2 ends with this thesis statement:  “People’s prior convictions should not be held against them in their pursuit of higher learning.”  It is a thesis statement for three reasons:

  • It is the article’s main argument.
  • It is not a fact. Someone could think that peoples’ prior convictions should affect their access to higher education.
  • It requires evidence to show that it is true.

Finding Claims.  A claim is statement that supports a thesis statement.  Like a thesis, it is not a fact so it needs to be supported by evidence.

You have already identified the article’s thesis statement: “People’s prior convictions should not be held against them in their pursuit of higher learning.”

Like the thesis, a claim be an idea that the author believes to be true, but others may not agree.  For this reason, a claim needs support.

  • Question 1.  Can you find a claim in paragraph 3? Look for a statement that might be true, but needs to be supported by evidence.

Finding Evidence. 

Paragraphs 5-7 offer one type of evidence to support the claim you identified in the last question.  Reread paragraphs 5-7.

  • Question 2.  Which word best describes the kind of evidence included in those paragraphs:  A report, a study, personal experience of the author, statistics, or the opinion of an expert?

Paragraphs 8-10

Finding Claims

Paragraph 8 makes two claims:

  • “The United States needs to have more of this transformative power of education.”
  • “The country [the United States] incarcerates more people and at a higher rate than any other nation in the world.”

Finding Evidence

Paragraphs 8 and 9 include these statistics as evidence:

  • “The U.S. accounts for less than 5 percent of the world population but nearly 25 percent of the incarcerated population around the globe.”
  • “Roughly 2.2 million people in the United States are essentially locked away in cages. About 1 in 5 of those people are locked up for drug offenses.”

Question 3. Does this evidence support claim 1 from paragraph 8 (about the transformative power of education) or claim 2 (about the U.S.’s high incarceration rate)?

Question 4. Which word best describes this kind of evidence:  A report, a study, personal experience of the author, statistics, or the opinion of an expert?

Paragraphs 11-13

Remember that in paragraph 2, Andrisse writes that:

  • “People’s prior convictions should not be held against them in their pursuit of higher learning.” (Thesis statement)
  • “More must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.” (Claim)

Now, review paragraphs 11-13 (Early life of crime). In these paragraphs, Andrisse shares more of his personal story.

Question 5. Do you think his personal story is evidence for statement 1 above, statement 2, both, or neither one?

Question 6. Is yes, which one(s)?

Question 7. Do you think his personal story is good evidence?  Does it persuade you to agree with him?

Paragraphs 14-16

Listed below are some claims that Andrisse makes in paragraph 14.  Below each claim, please write the supporting evidence from paragraphs 15 and 16.  If you can’t find any evidence,  write “none.”

Claim:  The more education a person has, the higher their income.

Claim: Similarly, the more education a person has, the less likely they are to return to prison.

Paragraphs 17-19

Evaluating Evidence

In these paragraphs, Andrisse returns to his personal story. He explains how his father’s illness inspired him to become a doctor and shares that he was accepted to only one of six biomedical graduate programs.

Do you think that this part of Andrisse’s story serves as evidence (support) for any claims that you’ve identified so far?   Or does it support his general thesis that “people’s prior convictions should not be held against them in pursuit of higher learning?” Please explain your answer.

Paragraphs 20-23

Andrisse uses his personal experience to repeat a claim he makes in paragraph 3, that “more must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.”

To support this statement, he has to show that barriers exist.  One barrier he identifies is the cost of college. He then explains the advantages of offering Pell grants to incarcerated people.

What evidence in paragraphs 21-23 support his claim about the success of Pell grants?

Paragraphs  24-28 (Remove questions about drug crimes from federal aid forms)

In this section, Andrisse argues that federal aid forms should not ask students about prior drug convictions.  To support that claim, he includes a statistic about students who had to answer a similar question on their college application.

What statistic does he include?

In paragraph 25, he assumes that if a question about drug convictions discourages students from applying to college, it will probably also discourage them from applying for federal aid.

What do you think about this assumption?   Do you think it’s reasonable or do you think Andrisse needs stronger evidence to show that federal aid forms should not ask students about prior drug convictions?

Supporting English Language Learners in First-Year College Composition Copyright © by Breana Bayraktar is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Reading Skills

Developing claims and counterclaims.

  • The Albert Team
  • Last Updated On: December 27, 2023

thesis counter claim

What We Review

Introduction

When you’re diving into a persuasive speech, article, or essay, there are two key things to look out for: the claim and the counterclaim. The claim is basically what the author believes and wants you to agree with. It’s their main point or argument about a topic. On the flip side, the counterclaim is the opposite stance. It’s a position that challenges or disagrees with the author’s claim.

Getting a grip on both claims and counterclaims is super important. Why? Because it helps you become more savvy when you read different nonfiction texts. You’ll be able to spot what the writer is arguing for (the claim) and what arguments might go against it (the counterclaim). Plus, it’s a great skill for when you start making your own arguments in essays or discussions. Understanding both sides of a topic makes your own arguments stronger and more balanced.

Understanding Claims

A claim is what the author or speaker is trying to convince you of, their main point or argument. But it’s not enough just to state a claim; it needs to be backed up with solid evidence and also be ready to face counterclaims (which are basically the opposite arguments).

There are different types of claims, and knowing them can help you understand and make better arguments:

  • Fact : This type of claim focuses on answering questions such as, “is it true,” “did it happen,” or “who is this person?”. For example, a sample fact claim could be: “Lebron James’ I Promise School in Akron, OH provides an effective model for meeting students’ needs on educational, physical, emotional, and social levels.” 
  • Definition : This type of claim focuses on answering questions such as, “what does this term mean in this context?” For example, a sample definition claim could be: “Being someone’s friend on social media has an entirely different meaning than being in a real-life friendship.” 
  • Value : This type of claim focuses on answering questions such as, “is this good or bad?” or “how do we define what is good or what is bad?” For example, a sample value claim could be: “Cell phones should not be allowed in high school because these devices detract from student performance and affect students’ emotional well-being.” 
  • Cause : This type of claim answers questions such as, “what is the cause?” and “what is the effect?” For example, a sample cause claim could be: “By reintroducing home economics classes into high school curriculum, students will be more prepared for adult responsibilities and less dependent on their parents after they graduate high school.” 
  • Comparison : This type of claim answers questions such as, “what can we learn from comparing these two topics?” For example, a comparison claim could be: “When placed side-by-side, Marvel and DC comic book universes reveal much closer similarities between one another than one would expect.” 
  • Policy : This type of claim answers questions such as, “what type of policies would benefit this group?” or “how should various policies be enforced in different circumstances?” For example, a policy claim could be: “Employers must provide new mothers with one year of paid leave with a guarantee of employment following this period of absence.” 

thesis counter claim

No matter how strong a claim sounds, it must have a firm foundation. Otherwise, it is easily toppled by opposing counterclaims. The foundation of an effective claim is sufficient and relevant supporting evidence. Be sure to include the rebuttal of counterclaims with further supporting evidence. Sufficient supporting evidence means the writer has enough evidence to support their claim. But be careful – too much information can make your main point hard to see. And always be ready to address counterclaims with more evidence. This makes your argument stronger and shows you’ve thought about all sides of the issue.

Developing Counterclaims

A counterclaim is an opposing argument that seeks to disprove or weaken another claim. 

Just like there are many different kinds of claims, there are just as many variations of counterclaims. For example, if someone wanted to counter the “Fact Claim” above, “Lebron James’ I Promise School in Akron, OH provides an effective model for meeting students’ needs on educational, physical, emotional, and social levels,” they would use sufficient and relevant evidence to argue that “Lebron James’ I Promise School in Akron, OH  does not  provide an effective model for meeting students’ needs on educational, physical, emotional, and social levels.”

thesis counter claim

Dealing with different viewpoints, especially on sensitive topics, can be tough. It’s not always easy to listen to opinions that go against what you believe. But here’s the thing – understanding and considering these opposing perspectives can actually make your own argument stronger. It shows that you’re open-minded and have thought about the issue from all angles. Plus, it teaches a valuable lesson: it’s totally okay to agree to disagree. Not everyone will see things the way you do, and that’s alright. In the world of persuasive writing and speaking, being able to develop and understand counterclaims is a key skill that can really take your arguments to the next level.

In school, you might practice making claims and counterclaims on topics that don’t seem super important to you. But as you grow and start forming your own strong opinions on different subjects, you’ll see how this skill really comes into play in the real world.

One thing you’ll learn is that introducing opposite opinions can sometimes lead to disagreements or conflicts. That’s just part of life. But here’s the key: to be a really good communicator, whether in your personal life or in the workplace, it’s important to know how to peacefully coexist with people who have different views.

thesis counter claim

Understanding how to discuss and debate ideas respectfully is a super valuable skill. It helps you express your own thoughts clearly while also being open to hearing what others have to say. This doesn’t mean you have to change your opinions, but being able to consider different perspectives can make you a more thoughtful and well-rounded thinker. So, as you continue to shape your views on various topics, remember that being able to agree to disagree is a part of growing into a skilled and respectful communicator.

Practice Makes Perfect

In addition to the recommended activities above, Albert provides a wide range of texts for students to analyze and interpret. For emerging readers, check out our Short Readings course, which uses short passages to reinforce fundamental reading skills. Readers at all ability levels may enjoy our Leveled Readings course. It offers Lexile® leveled passages focused on a unifying essential question. This allows you to keep all students on the same page regardless of reading level. Learn more about the Lexile Framework here !

For authentic practice, check out our Essential Readings in Literature course. This course provides an overview of the core texts that American students often read in English class. Each text is broken down by skill, ensuring that students approach their reading from every angle.

With our easy-to-use interface and informative feedback, Albert.io is the perfect tool for reinforcing close reading skills and helping students develop a deeper understanding of the texts they encounter.

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Where to Put the Essay Counterclaim

Where to Place the Essay Counterclaim

Where is the best place to put the essay counterclaim? The short and sweet answer? David Oldham, professor at Shoreline Community College, states, “The short answer is a counter-argument (counterclaim) can go anywhere except the conclusion. This is because there has to be a rebuttal paragraph after the counter-argument, so if the counter-argument is in the conclusion, something has been left out.”

The counterclaim is the opposing point of view to one’s thesis and is also known as the counterargument. The counterclaim is always accompanied by a refutation, sometimes referred to as a rebuttal. The Common Core State Standards include the counterclaim in Writing Standards 1.0 for grades 7-12. These Standards reference the organization of the counterclaim in terms of clear relationships and logical sequencing. See the boldface phrases in the following grades 7-12 Standards.

Common Core State Standards

Common Core State Standards

Seventh Grade: Introduce claim(s), acknowledge alternate or opposing claims, and organize the reasons and evidence logically.

Eighth Grade: Introduce claim(s), acknowledge and distinguish the claim(s) from alternate or opposing claims, and organize the reasons and evidence logically.

Ninth and Tenth Grade: Introduce precise claim(s), distinguish the claim(s) from alternate or opposing claims, and create an organization that establishes clear relationships among claim(s), counterclaims, reasons, and evidence.

Eleventh and Twelfth Grade: Introduce precise, knowledgeable claim(s), establish the significance of the claim(s), distinguish the claim(s) from alternate or opposing claims, and create an organization that logically sequences claim(s), counterclaims, reasons, and evidence.

Placement Options

1. Writers can place a separate counterclaim paragraph with refutation as the last body paragraph prior to the conclusion paragraph.

Separate Paragraph Example #1 

COUNTERCLAIM Opponents argue that after school sports can increase the likelihood of sports-related injuries. Specifically, health professionals suggest that life-threatening concussions occur at frightening rates for student athletes participating in such popular after school sports as football, soccer, basketball, and wrestling (Bancroft 22, 23). Even minor injuries sustained from participation in after school sports increase absent rates and the expense of creating injury reports for students (Sizemore 3).  REFUTATION Although students do suffer both serious and minor injuries in after school sports, these injuries are quite rare. The organization, supervision, and safety measures of school-sponsored sports are superior to those of alternative fee-based community-sponsored recreational leagues or even privately sponsored sports organizations (Kinney 2). Additionally, without free after school sports programs, many students would still play sports without adult supervision and even more injuries would result.

2. Writers can place a separate counterclaim paragraph without refutation as the first body paragraph following the thesis statement to anticipate objections prior to providing evidence to prove the claim of the thesis statement.

Separate Paragraph Example #2 

COUNTERCLAIM  Those who favor eliminating after school sports argue that after school sports can increase the likelihood of sports-related injuries. Specifically, health professionals suggest that life-threatening concussions occur at frightening rates for student athletes participating in such popular after school sports as football, soccer, basketball, and wrestling (Bancroft 22, 23). Even minor injuries sustained from participation in after school sports increase absent rates and the expense of creating injury reports for students (Sizemore 3). Additionally, youth and adolescents are not developmentally ready to play contact sports. Key components of the brain and skeletal structure have not yet formed (Mays 14), and injuries can have lasting damage to young people.

3. Writers can embed a counterclaim and refutation within a body paragraph.

Embedded within Paragraph Example

After school sports provide safe and free programs for students who might otherwise not be able to participate in individual or team sports. The organization, supervision, and safety measures of school-sponsored sports are superior to those of alternative fee-based community-sponsored recreational leagues or even privately sponsored sports organizations (Kinney 2). Additionally, without free after school sports programs, many students would still play sports without adult supervision and even more injuries would result. COUNTERCLAIM However, some people would argue that after school sports can increase the likelihood of sports-related injuries and resulting absences with the added expenses of creating injury reports for students (Sizemore 3).  REFUTATION Although students do suffer both serious and minor injuries in after school sports and there are resulting absences and injury reports, without school-sponsored sports the likelihood of more injuries from less supervised recreational leagues or privately sponsored leagues with fewer safety regulations would, no doubt, be much worse.

4. Writers can embed a counterclaim and refutation within a sentence or sentences found in a body paragraph.

Embedded within Sentences Example

After school sports provide safe and free programs for students who might otherwise not be able to participate in individual or team sports. COUNTERCLAIM  Even so, some would question the safety of these programs, citing the numbers of life-threatening concussions from after school sports such as football, REFUTATION but these statistics are misleading. According to the highly respected  Youth in Sports report, fewer serious injuries occur to students playing after school sports as compared to students not playing after school sports (Green 22).

5. Writers can embed a counterclaim within the introductory paragraph and use the thesis statement as refutation.

Introductory Paragraph Example

After school sports are extra-curricular activities included in most elementary, middle school, and high schools throughout the world. COUNTERCLAIM Some would argue that schools can no longer afford these programs and the expenses of lawsuits resulting from sports-related injuries. REFUTATION AS THESIS STATEMENT  On the contrary, schools can and should invest in well-supervised after school sports to promote health and minimize sports-related injuries.

Each of these counterclaim placements has merit, depending upon the nature of the argumentative essay. Help students develop the writing flexibility and dexterity they need by applying each of these strategies in the draft and revision stages. As always, show models of counterclaims and refutations, teach a variety of types of evidence , and help students avoid the pitfalls of fallacious reasoning .

In addition to Where to Put the Essay Counterclaim, writing teachers may also be interested in these related articles:  Counterclaim and Refutation Sentence Frames , What is the Essay Counterclaim? , and Why Use an Essay Counterclaim?

Teaching Essays

TEACHING ESSAYS BUNDLE

The author’s  TEACHING ESSAYS BUNDLE   includes the three printable and digital  resources students need to master  the  CCSS W.1 argumentative and W.2 informational/explanatory essays. Each  no-prep  resource allows students to work at their own paces via mastery learning. How to Teach Essays  includes 42 skill-based essay strategy worksheets (fillable PDFs and 62 Google slides), beginning with simple 3-word paragraphs and proceeding step-by-step to complex multi-paragraph essays. One skill builds upon another. The Essay Skills Worksheets include 97 worksheets (printables and 97 Google slides) to help teachers differentiate writing instruction with both remedial and advanced writing skills. The  Eight Writing Process Essays  (printables and 170 Google slides) each feature an on-demand diagnostic essay assessment, writing prompt with connected reading, brainstorming, graphic organizer, response, revision, and editing activities. Plus, each essay includes a detailed analytical (not holistic) rubric for assessment-based learning.

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IV. Types of Argumentation

4.4 Basic Structure and Content of Argument

Amanda Lloyd; Emilie Zickel; Robin Jeffrey; and Terri Pantuso

When you are tasked with crafting an argumentative essay, it is likely that you will be expected to craft your argument based upon a given number of sources–all of which should support your topic in some way. Your instructor might provide these sources for you, ask you to locate these sources, or provide you with some sources and ask you to find others. Whether or not you are asked to do additional research, an argumentative essay should contain the following basic components.

Claim: What Do You Want the Reader to Believe?

In an argument paper, the thesis is often called a claim . This claim is a statement in which you take a stand on a debatable issue. A strong, debatable claim has at least one valid counterargument, an opposite or alternative point of view that is as sensible as the position that you take in your claim. In your thesis statement, you should clearly and specifically state the position you will convince your audience to adopt. One way to accomplish this is via either a closed or open thesis statement.

A closed thesis statement includes sub-claims or reasons why you choose to support your claim.

Example of Closed Thesis Statement

The city of Houston has displayed a commitment to attracting new residents by making improvements to its walkability, city centers, and green spaces.

In this instance, walkability, city centers, and green spaces are the sub-claims, or reasons, why you would make the claim that Houston is attracting new residents.

An open thesis statement does not include sub-claims and might be more appropriate when your argument is less easy to prove with two or three easily-defined sub-claims.

Example of Open Thesis Statement

The city of Houston is a vibrant metropolis with a commitment to attracting new residents.

The choice between an open or a closed thesis statement often depends upon the complexity of your argument. Another possible construction would be to start with a research question and see where your sources take you.

A research question approach might ask a large question that will be narrowed down with further investigation.

Example of Research Question Approach

What has the city of Houston done to attract new residents and/or make the city more accessible?

As you research the question, you may find that your original premise is invalid or incomplete. The advantage to starting with a research question is that it allows for your writing to develop more organically according to the latest research. When in doubt about how to structure your thesis statement, seek the advice of your instructor or a writing center consultant.

A Note on Context: What Background Information About the Topic Does Your Audience Need?

Before you get into defending your claim, you will need to place your topic (and argument) into context by including relevant background material. Remember, your audience is relying on you for vital information such as definitions, historical placement, and controversial positions. This background material might appear in either your introductory paragraph(s) or your body paragraphs. How and where to incorporate background material depends a lot upon your topic, assignment, evidence, and audience. In most cases, kairos, or an opportune moment, factors heavily in the ways in which your argument may be received.

Evidence or Grounds: What Makes Your Reasoning Valid?

To validate the thinking that you put forward in your claim and sub-claims, you need to demonstrate that your reasoning is based on more than just your personal opinion. Evidence, sometimes referred to as grounds, can take the form of research studies or scholarship, expert opinions, personal examples, observations made by yourself or others, or specific instances that make your reasoning seem sound and believable. Evidence only works if it directly supports your reasoning — and sometimes you must explain how the evidence supports your reasoning (do not assume that a reader can see the connection between evidence and reason that you see).

Warrants: Why Should a Reader Accept Your Claim?

A warrant is the rationale the writer provides to show that the evidence properly supports the claim with each element working towards a similar goal. Think of warrants as the glue that holds an argument together and ensures that all pieces work together coherently.

An important way to ensure you are properly supplying warrants within your argument is to use topic sentences for each paragraph and linking sentences within that connect the particular claim directly back to the thesis. Ensuring that there are linking sentences in each paragraph will help to create consistency within your essay. Remember, the thesis statement is the driving force of organization in your essay, so each paragraph needs to have a specific purpose (topic sentence) in proving or explaining your thesis. Linking sentences complete this task within the body of each paragraph and create cohesion. These linking sentences will often appear after your textual evidence in a paragraph.

Counterargument: But What About Other Perspectives?

Later in this section, we have included an essay by Steven Krause who offers a thorough explanation of what counterargument is (and how to respond to it). In summary, a strong arguer should not be afraid to consider perspectives that either challenge or completely oppose his or her own claim. When you respectfully and thoroughly discuss perspectives or research that counters your own claim or even weaknesses in your own argument, you are showing yourself to be an ethical arguer. The following are some things of which counter arguments may consist:

  • summarizing opposing views;
  • explaining how and where you actually agree with some opposing views;
  • acknowledging weaknesses or holes in your own argument.

You have to be careful and clear that you are not conveying to a reader that you are rejecting your own claim. It is important to indicate that you are merely open to considering alternative viewpoints. Being open in this way shows that you are an ethical arguer – you are considering many viewpoints.

Types of Counterarguments

Counterarguments can take various forms and serve a range of purposes such as:

  • Could someone disagree with your claim? If so, why? Explain this opposing perspective in your own argument, and then respond to it.
  • Could someone draw a different conclusion from any of the facts or examples you present? If so, what is that different conclusion? Explain this different conclusion and then respond to it.
  • Could a reader question any of your assumptions or claims? If so, which ones would they question? Explain and then respond.
  • Could a reader offer a different explanation of an issue? If so, what might their explanation be? Describe this different explanation, and then respond to it.
  • Is there any evidence out there that could weaken your position? If so, what is it? Cite and discuss this evidence and then respond to it.

If the answer to any of these questions is yes, that does not necessarily mean that you have a weak argument. It means ideally, and as long as your argument is logical and valid, that you have a counterargument. Good arguments can and do have counterarguments; it is important to discuss them. But you must also discuss and then respond to those counterarguments.

Response to Counterargument: I See That, But…

Just as it is important to include counterargument to show that you are fair-minded and balanced, you must respond to the counterargument so that a reader clearly sees that you are not agreeing with the counterargument and thus abandoning or somehow undermining your own claim. Failure to include the response to counterargument can confuse the reader. There are several ways to respond to a counterargument such as:

  • Concede to a specific point or idea from the counterargument by explaining why that point or idea has validity. However, you must then be sure to return to your own claim, and explain why even that concession does not lead you to completely accept or support the counterargument;
  • Reject the counterargument if you find it to be incorrect, fallacious, or otherwise invalid;
  • Explain why the counterargument perspective does not invalidate your own claim.

A Note About Where to Put the Counterargument

It is certainly possible to begin the argument section (after the background section) with your counterargument + response instead of placing it at the end of your essay. Some people prefer to have their counterargument first where they can address it and then spend the rest of their essay building their own case and supporting their own claim. However, it is just as valid to have the counterargument + response appear at the end of the paper after you have discussed all of your reasons.

What is important to remember is that wherever you place your counterargument, you should:

  • Explain what the counter perspectives are;
  • Describe them thoroughly;
  • Cite authors who have these counter perspectives;
  • Quote them and summarize their thinking.
  • Make it clear to the reader of your argument why you concede to certain points of the counterargument or why you reject them;
  • Make it clear that you do not accept the counterargument, even though you understand it;
  • Be sure to use transitional phrases that make this clear to your reader.

Responding to Counterarguments

You do not need to attempt to do all of these things as a way to respond. Instead, choose the response strategy that makes the most sense to you for the counterargument that you find:

  • “However, this information does not apply to our topic because…”
  • If the counterargument perspective is one that contains different evidence than you have in your own argument, you can explain why a reader should not accept the evidence that the counterarguer presents;
  • If the counterargument perspective is one that contains a different interpretation of evidence than you have in your own argument, you can explain why a reader should not accept the interpretation of the evidence that your opponent (counterarguer) presents.

If the counterargument is an acknowledgement of evidence that threatens to weaken your argument, you must explain why and how that evidence does not, in fact, invalidate your claim.

It is important to use transitional phrases in your paper to alert readers when you’re about to present a counterargument. It’s usually best to put this phrase at the beginning of a paragraph such as:

  • Researchers have challenged these claims with…
  • Critics argue that this view…
  • Some readers may point to…
  • A perspective that challenges the idea that…

Transitional phrases will again be useful to highlight your shift from counterargument to response:

  • Indeed, some of those points are valid. However, . . .
  • While I agree that . . . , it is more important to consider . . .
  • These are all compelling points. Still, other information suggests that . .
  • While I understand . . . , I cannot accept the evidence because . . . [1]

In the section that follows, the Toulmin method of argumentation is described and further clarifies the terms discussed in this section.

Practice Activity

This section contains material from:

Amanda Lloyd and Emilie Zickel. “Basic Structure of Arguments.” In A Guide to Rhetoric, Genre, and Success in First-Year Writing , by Melanie Gagich and Emilie Zickel. Cleveland: MSL Academic Endeavors. Accessed July 2019. https://pressbooks.ulib.csuohio.edu/csu-fyw-rhetoric/chapter/basic-argument-components/ . Licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License . Archival link: https://web.archive.org/web/20201027011022/https://pressbooks.ulib.csuohio.edu/csu-fyw-rhetoric/chapter/basic-argument-components/

Jeffrey, Robin. “Counterargument and Response.” In A Guide to Rhetoric, Genre, and Success in First-Year Writing , by Melanie Gagich and Emilie Zickel. Cleveland: MSL Academic Endeavors. Accessed July 2019. https://pressbooks.ulib.csuohio.edu/csu-fyw-rhetoric/chapter/questions-for-thinking-about-counterarguments/ . Licensed under a Creative Commons Attribution 4.0 International License . Archival link: https://web.archive.org/web/20201027003319/https://pressbooks.ulib.csuohio.edu/csu-fyw-rhetoric/chapter/questions-for-thinking-about-counterarguments/

OER credited the texts above includes:

Jeffrey, Robin. About Writing: A Guide . Portland, OR: Open Oregon Educational Resources. Accessed December 18, 2020. https://openoregon.pressbooks.pub/aboutwriting/ . Licensed under a Creative Commons Attribution 4.0 International License . Archival link: https://web.archive.org/web/20230711210756/https://openoregon.pressbooks.pub/aboutwriting/

  • This section originally contained the following attribution: This page contains material from “About Writing: A Guide” by Robin Jeffrey, OpenOregon Educational Resources, Higher Education Coordination Commission: Office of Community Colleges and Workforce Development is licensed under CC BY 4.0. ↵

An arguable statement; a point that a writer, researcher, or speaker makes in order to prove their thesis.

The basic assumptions or understanding on which an argument is based or from which conclusions are drawn. A major premise is a statement of universal truth or common knowledge. A minor premise is a statement related to a major premise but concerns a specific situation.

The explanation, justification, or motivation for something; the reasons why something was done.

4.4 Basic Structure and Content of Argument Copyright © 2023 by Amanda Lloyd; Emilie Zickel; Robin Jeffrey; and Terri Pantuso is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

How to Write an Effective Counterclaim in 5 Steps

So, you’re laboring over a killer argumentative essay — and you want to make absolutely sure that you have all your bases covered? Your essay absolutely needs at least one counterclaim with a rebuttal if you are determined to make it the best it can be.

Unless you are already an experiences essayist, however, it can prove tough to write a solid counterclaim. Watch and learn — with this guide, you’ll get ready to write a powerful counterclaim in no time!

Essay Counterclaim: The Basics

The “too long; didn’t read” version is as follows — a counterclaim is a rhetorical tool used in essay writing. You present a viewpoint for which you are not arguing in a counterclaim, and then proceed to refute it; explaining why people should disagree with the opposing argument and agree with you, instead.

As you’re writing your essay, you will inevitably make various claims. Claims can be defined as debatable statements — the views for which you are arguing in your essay. Your thesis statement will be the main, overarching, claim you make in your essay, and this can be followed by multiple further claims in favor of your argument.

Let’s see this in action:

  • Thesis: “Unleashed dogs are a serious public health concern in Masonville. Policy must be amended to make it mandatory for all dogs to be leashed, at all times, and fines must be imposed on those who fail to comply.”
  • Claim: “Unleashed dogs have decimated the local deer population.”
  • Claim: “5 children and an elderly person have sustained serious dog bites that required medical attention in the last three years.”
  • Claim: “Data from other jurisdictions shows that imposing penalties for unleashed dogs reduces incidents with dogs immensely.”

If your essay looks something like this, you’re building a compelling case. You have defined your viewpoint, offered arguments that lead to a conclusion, and you have also shared data that your proposed solution could work.

What’s missing?

To truly make a convincing argument, you have to show that you understand the subject matter you are tackling deeply — something that inevitably includes listening to the opposing side in the argument.

That is where your counterclaim comes in. A counterclaim can be defined as a claim that directly opposes yours.

If your reaction is “Wait, what!? I have to argue against myself?” right now, hold on. There are multiple strong reasons to include a counterclaim in your essay. Here’s a look:

  • By including a counterclaim, or indeed multiple, you show that you don’t have tunnel vision. You have also considered the other side.
  • Readers who support the other side of the argument will likely react with a “Yes, that’s right!”. This has the effect of making them feel heard, which in turn makes them more open to listening to you.
  • After all that, you can — finally — respectfully and artfully refute the counterclaim. You understand the opposing viewpoint and you have deeply considered its merits, but you disagree. Lay out why, and why those who previously agreed with the opposing argument might want to consider coming over to your side, instead.

Let’s see that in action again:

Many dog owners claim that leashing dogs robs them of the ability to run around and have fun — something they consider integral to their dogs’ health and wellbeing. While it is certainly true that dogs need exercise, long leashes allow for plenty of freedom of movement. Dog parks, where dogs could run free, are another possible solution in this case.

Claim vs Counterclaim: What Is the Difference?

The difference between a claim and a counterclaim can best be summed up by saying that a claim is used to argue the position you are defending in your essay, while a counterclaim takes the opposing viewpoint. A counterclaim is an argument against your argument, in other words.

That is not the only difference between the two. To make an effective claim, a writer simply has to:

  • Make the claim.
  • Provide evidence or logical arguments supporting the claim.
  • Where desired, follow this with rhetorical tools such as appeals to emotion or logic to further convince the audience.

A counterclaim requires more elements:

  • The counterclaim itself — which states an opposing argument.
  • Evidence that people in fact hold this view is very much welcomed; to make a good counterclaim, you cannot simply lay out positions that are almost never taken.
  • An explanation as to why people may hold this view.
  • Finally, a rebuttal, in which you explain why the counterclaim is weak, and your original position is correct.

How to Write an Effective Counterclaim: Step-by-Step

Writing an effective counterclaim — or even several, as you may be called to do in longer essays — can be challenging. That is particularly true if you fervently believe in the argument you are making, and have a hard time understanding how anyone could disagree with it.

However, it is important to remain as objective as possible as you craft a counterclaim for your essay. Here is a look at the process you may use to decide on a good counterclaim.

  • Deciding Where to Place Your Counterclaim

It is typically very effective to open your essay with a compelling hook, which may consist of a powerful anecdote, statistics, or a dramatic introduction to a pressing problem. You will then want to introduce your thesis statement, and begin making claims — which you back up with evidence and further arguments.

Your counterclaim, or counter claims, should be placed after this portion of your essay. In short essays, that means it will be somewhere near the end. However, you will want to summarize your main argument succinctly and write a memorable conclusion in the paragraphs that follow your counterclaim paragraph.

  • Deciding How Long Your Counterclaim Should Be

The length of a counterclaim, and indeed the number of counterclaims you decide to include, depends on the target length of your essay. You will typically require at least a short paragraph to be able to do your counterclaim justice, because you are not simply stating that some people disagree with your argument. You also want to explain why.

In some cases, you will be able to write a short rebuttal in the same paragraph. In others, you may choose to refute the counterclaim in the next paragraph.

  • Researching Opposing Viewpoints

To write an effective counterclaim, it is important to understand the arguments that may be used to oppose your claims. Don’t simply turn your claim or thesis statement on its head, but research why people disagree with the argument you are making, and on what basis. Where possible, try to find out how common the view you are portraying in your counterclaim is.

  • Presenting the Opposing Viewpoint Fairly

Once you immerse yourself in the types of arguments people who disagree with your thesis make, and truly understand where they are coming from, you are ready to craft a good counterclaim. Try this exercise first. Imagine what you would write if you sincerely held the opposing view, and then go ahead and do it.

  • Writing Your Counterclaim Paragraph

Before presenting the counterclaim, you will need to introduce the fact that you will be doing this by making a smooth transition in your writing. Good ways to start your counterclaim paragraph include:

  • “Critics have argued that…”
  • “Some people may conclude that”
  • “On the other side of the argument, people are concerned that…”
  • “The opposing viewpoint states that…”

Once you have stated the alternative view, go ahead and describe why that view is held. Present evidence.

You can now either start a new paragraph to write a rebuttal, or — if you can keep it short — do so in the same paragraph.

A rebuttal can include:

  • Reasons why the opposing view you presented in your counterclaim is weak or false.
  • An acknowledgment that the views presented in the counterclaim have merit, but there is a solution that would render the concerns the opposing side has baseless.
  • An explanation that the views presented in the counterclaim are exceedingly rare, or the benefits of your argument outweigh the risks the counterclaim sets forth.

Additional Tips on Writing a Counterclaim

If you have followed along so far, you are almost ready to make a very effective counterclaim, complete with a refutation. You may even have penned a draft. So far, so good, but you do have some additional things to watch out for as you write your counterclaim:

  • Be objective in the language you use. Do not state that you disagree with the counterclaim, or argue that some people “erroneously believe that…”, for example. Simply present the counterclaim as an alternative opinion.
  • Be fair. Do not caricature the viewpoint you are presenting in your counterclaim. Do not use condescending language. When you share the opposing argument, do so using words that those who hold that view may, in fact, use.
  • Don’t forget to include evidence. Your evidence can demonstrate that a significant percentage of people hold the view you address in your counterclaim, and it should also, where possible, back up the counterclaim. In the example we used earlier, regarding the benefits of allowing dogs to run around without being leashed, you could look for studies that show that dogs need a certain amount of physical exercise.
  • Be fair in your rebuttal, too. The extent to which you do this depends on your aim. If you are writing a high school or college essay, you may simply prefer to throw some hard-hitting verbal punches. If, on the other hand, you are sincerely hoping to convince people who currently hold the alternative opinion you just described that you are right, you will have to be more careful. Validate their underlying concerns or values, and explain why your argument works within that context.

Does every essay need a counterclaim?

No. There are many kinds of essays. An expository essay, for instance, simply explores a topic, and will not need a counterclaim. A narrative essay shares the writer’s personal experience, and will not require a counterclaim. Counterclaims have an important place in argumentative essays, which require the writer to demonstrate that they understand the topic thoroughly and have considered all sides.

How many counterclaims should I include?

If you make multiple claims, you may choose to write a counterclaim for each of them. Depending on the length of your essay, you may even decide to include multiple counterclaims for each claim.

Related posts:

  • How to Write an Effective Claim (with Examples)
  • How to Write a Counter Argument (Step-by-Step Guide)
  • 14 Tips to Help you Write An Essay Fast
  • Going to the Dogs - Meaning, Origin and Usage
  • How to Write in the First Person Effectively
  • How To Write A Movie Title In An Essay

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How to write counterclaim: essential guide.

October 20, 2021

Are you trying to address your opinion and convince someone of your point of view? A counterclaim is what you need! A claim is an idea or an opinion that someone stands by. A counterclaim, however, is an opposing point of view about the concept. A strategic argumentative essay defines what the other side may say and explains why their claim is wrong; this is a counterclaim.

how to write a counterclaim

A counterclaim is included in argumentative writing and thesis to convince the reader to accept your claim. It’s essential to craft a good counterclaim to convince and get the reader on your side. The blog will provide you with complete insight into everything you need to know about writing counterclaims.

What is a Counterclaim in Writing?

A counterclaim is the other side of the argument or your original claim. In your claim, you make clear what you plan to prove. The counterclaim paragraph shows the opponent’s side of viewpoint and defines it in a way that seems weak and invalid.

The main aim behind the counterclaim is to convince the reader of your point of view. Hence, it’s essential to write a strong counterclaim paragraph to answer all the potential arguments the reader might have. A counterclaim essay, if done well, shows that the writer has considered both sides of the picture, which strengthens its position. Argumentative writing, thesis, or any other assignments that may involve convincing the audience in favor of your point of view can Use counterclaims to persuade the audience of the writer’s opinion. Any form of writing that involves more than one point of you can use claims and counterclaims to simplify the situation.

An argumentative essay is written in the following steps: Claim Counterclaim/ Counterclaims Rebuttal

Learning how to draft counterclaims is essential for every student. Individuals may need to convince the audience of their point of view when they step into real life. If you find yourself in any form of debate, you will always have a claim to fight for. You will have to create counterclaims to tell the audience about all the aspects that you have considered and then let them know the best possible option through a rebuttal.

The concept of counterclaims is also helpful for Law and business students in attaining their degrees. For law students, many cases may require a lawyer to draft a substantial counterclaim and rebuttal for the opponent in the legal issues. Likewise, in the business field, the concept of counterclaim may help the business evaluate the effectiveness of each contract. Also, considering all the contradictory aspects of your claim in any form of writing creates a good impression. The writer appears to be thoughtful, and just by considering and mentioning all the arguments, there may be present against his claim.

Claims vs. Counterclaims

How to find counterclaim.

There are a few steps and options to consider when trying to find a counterclaim:

  • You need to identify the target audience that will be most affected by the claim.
  • After you have identified your target audience, you can do quick questioning from an individual representing each group against their problems with your claim.
  • Meanwhile, the writer should also form an idea of the possible alternative points of view the audience may have against the main claim.
  • An alternative to finding a counterclaim is to note down all the disadvantages or alternative explanations that your target audience may have. However, the first option is more effective as this may allow you to find the counterclaims that may not be in your mind.

Where Do You Put A Counterclaim in an Essay?

When writing counterclaims in an essay, it’s essential to introduce the reader to the claim or the original argument. The claim is your point of view and can be argued by the reader. There is usually one main claim for which the argumentative essay revolves around. The claim is generally introduced in the introductory paragraph of your article or thesis. Right after the claim comes your counterclaim, which are the possible concerns the audience might have against your claim.

How to Introduce A Counterclaim?

There are various options you can consider on how to start a counterclaim paragraph, for example:

“On the other hand, some people say….” “Certainly, some people say….” “Admittedly, some people might say….” “A common counterpoint is often….”

You can start the counterclaim by explaining what counter-arguments the claim has. A good counterclaim paragraph will strengthen your essay and your position in the eyes of the reader.

How to Write a Counterclaim?

When writing a counterclaim, you need to imagine a skeptical reader and then draft your counterclaim paragraph. In the counterclaim, cite all the critics or sources who may resist your claim. The main aim behind the counterclaim is to address all the possible concerns of the reader to refute them. You can manage them by using the following words:

“However, some socials would certainly believe….” “Here, many feminists would argue….” “The opposing view is that….”

Moreover, it’s also vital that you evaluate your claim for all the possible problems and disadvantages that the claim may have. After introducing the counterclaim, discuss why it is incorrect. Also, use this part of the essay to think of alternate solutions that the claim may have in the following words:

“Alternatively, the issue could be viewed….” “Others may conclude….” “Despite this information….”

Explain the counterclaim as clearly and briefly as you can. It’s also an excellent strategy to prove where possible to weaken the opponent’s point of view.

How to Write A Good Counterclaim?

There are few tips that you can keep in mind when drafting a counterclaim.

  • Never introduce your counterclaim in the introductory paragraph: It’s a rule you should abide by to create an effective essay. Stating a counterclaim in the introduction makes the essay look vague.
  • When you start your counterclaim do not state it as right or wrong: Talk about why a counterclaim is believed instead of considering it right or wrong. Write a counterclaim in a way that the reader automatically turns in your favor.
  • Always choose the best words for your counterclaim: You don’t want to sound rude to the reader so always choose the words wisely.
  • It’s also essential to be just and unbiased as you write a counterclaim: To strengthen your thesis or argument you should always sound unbiased towards your opinion. The reader should know that you talking on the basis of facts and you don’t just want to implement your point of view.
  • Always provide evidence that supports your counterclaim: Providing evidence where ever possible is another great way to write counterclaims. Providing evidence to support the counterclaim makes it easier to convince the reader of your claim.

What Is A Rebuttal?

Your response to the counterclaim is known as the rebuttal. In this section, you showcase the evidence that disagrees with the counterclaim. You present all your reasoning to shoot down the opponent’s disagreement and bring them to your side. The comebacks are always intense; likewise, a rebuttal paragraph should clearly explain why you support your claim. An excellent rebuttal might involve research to get the full knowledge of the facts. This will also allow you to resolve the argument in the best way.

How To Write Counterclaim And Rebuttal?

After the counterclaim argument, we come to the solution in the form of a rebuttal. In the counterclaim, the paragraph mentions the counterargument a reader might have for your claim. Then we move on to resolving the debate by writing a rebuttal. It’s crucial to sound polite as you start with your rebuttal. The tone of your essay can make a significant impact on the audience; therefore, make sure to respect the different options as you write a rebuttal. There are few examples of how you can begin your rebuttal:

“Although some people think..others understand….” “The Evidence, however, clearly supports the argument that….” “This may be an understandable concern, however….”

Moreover, provide a point-by-point reply to all the counterclaims you have outlined. Make sure not to miss out on any counterclaim otherwise, your essay will look incomplete and vague. Also, if you miss out on any counterclaim in your rebuttal, this may weaken your claim. Rebuttal marks the end of your argument, so it’s advised to finish it with friendly and positive sentences. The tone of the rebuttal will let the audience know that you have done your best to come up with the best solution to the counterclaim. Lastly, when your rebuttal is done and your argument is sorted, it’s time to review your work. Read your work from the perspective of the reviewer. Will they be satisfied by the explanations you have given? Is the text clear and easily comprehendible? If the answer to all these questions is yes, you can submit your paper or argument confidently.

Example Of Claim, Counterclaim, And Rebuttal

Claim: Cellphones should be banned from school as they distract students from learning Counterclaim: Others may say that students should carry cell phones for emergency purposes. Rebuttal: There are many other less disruptive ways parents can use to communicate with their kids.

Need Help Writing A Counterclaim?

Writing a counterclaim for your thesis can be tricky, and you may need help with your work. Our writing services offer assistance for writing counterclaims. They offer reliable and creative solutions for all your writing needs. Our writers make sure to do proper research for the content so that there is no room for error. Our researchers are well versed in the services they offer. The writing services can easily be accessed online and cater to all the assignments of college, university, and other classes. You can contact the writing services for a custom-based package if you hire them for a long-term basis. Even the professors can benefit from the writing services by getting their student’s work proofread.

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How Counterclaim Your Position in an Argumentative Essay

Author Image

by  Antony W

April 7, 2022

counterclaim

When it comes to an argumentative essay , you have to consider both sides of the argument.

Sure, the goal of the assignment is to take a side on an issue and give evidence to support your stand.

However, if you fail to focus on both sides of the argument, you’ll appear narrowly minded and your essay will be less effective.

So to write a good argumentative essay that can convince your audience or instructor to keep reading to learn more about the issue under investigation, you should include a counterclaim in the paper.

A counterclaim is one of the elements of an argument that shows you invested your time and effort to investigate the two sides of an issue before taking your own stand on the topic.

What is a Counterclaim in an Argumentative Essay?

A counterclaim is simply one or more arguments that oppose the thesis statement   of your argument. 

Before you arrive at a counterclaim, you need to make sure your thesis explains what you claim you want to prove and how you’d like to do it.

You don’t include a counterclaim in the thesis part. Rather, the thesis should explicitly explain that you’ve done your research and you're convinced that the viewpoint of the opposing side is either invalid or weak.

By including a counterclaim in your essay, you create for yourself an opportunity to give a solid response to a reader’s arguments even before they finish reading the paper.

You end up with an essay that’s not only interesting to read but also one that strengthen your position.

How to Deal With Counterclaims in Your Essay

Counterclaims can be quite challenging to write.

On the one hand, you have your position to defend and you have to do so using all the evidences that you can use.

On the other hand, you have the opposing view to consider and include in the essay.

The question is, how do you consider the counterclaims without weakening your position ?

You can do so in two ways.

The first option is to note and point out the obvious flaws in the opposing arguments. This will show that, while you recognize the opposing views, they have a weakness that your point of view is trying to address.

By identifying the obvious flaws in a counterclaim, you’ll strengthen your own point of view on the issue.  The second option is where you agree with the counter argument, but you take this a step further by providing a new evidence that can either weaken or contradict the counterargument.

Again, this will go a long way to strengthen your position and convince your audience to agree with you even if the subject in question is sensitive or controversial. 

The Common Types of Counter Arguments in Argumentative Essays

There are 5 types of counterclaims that you’ll encounter as you work on your argumentative essay.

It’s important to understand each before we look at how you can respond to the counter claims.

  • Your audience (your reader) may come up with an evidence that could potentially weaken your position. Find out what the evidence can be. Cite and examine the evidence and then conclude by responding to it.
  • You can have a situation where an audience draws a different conclusion from the examples you present. If so, you should find a unique conclusion and then respond to it accordingly.
  • Sometimes a reader is highly likely to question the claim of your argument . In such a situation, it’s best to identify those claims, explain, and then give a solid response.
  • You can have an instance where someone disagrees with your claim. If this is the case, you should explain their perspective in your argument and then give a reasonable response.
  • If a reader can give a different explanation for an issue, you should figure out what that explanation might be and then give a completely different explanation yourself.

With that out of the way, let us look at how you can respond to a counterclaim in a way that makes your essay stand a chance to win an argument.

How to Respond to Counterclaims

There are a few response strategies that you can use to respond to counterclaims, but you don’t have to use all of them in the same paper.

The most important thing to do is to choose a strategy that makes the most sense for a particular counterargument.

  • If you find yourself nodding in agreement with some of the arguments that your reader or audience present, present their points and then give a challenge to oppose their points.
  • There may be an instance where a counterclaim provides an evidence different from what you have in your own argument. In such a case, it would be best if you give the reader a reason not to accept the evidence that the counter argument presents.
  • Some arguers will come up with counterclaims that threaten to weaken your argument. In this case, you need to give a thorough explanation on the how or why the evidence they’ve presented doesn’t interfere with or invalidate your claim.

Hire Our Team to Write Your Argumentative Essay

While counterclaims are expected in an argument, responding to them can be quite challenging. So if you feel like the task is too overwhelming to handle even after reading this guide, feel free to get in touch with us and we’ll help you write a high quality argumentative essay fast.

  Get in touch with your professional team of writers and get your argumentative essay completed on time

  At Help for Assessment, our goal is to see you excel in your academics.

Part of contributing to that vision is by helping you write essays that grab attention, spike reading interest, and earn you the grades that you deserve. 

About the author 

Antony W is a professional writer and coach at Help for Assessment. He spends countless hours every day researching and writing great content filled with expert advice on how to write engaging essays, research papers, and assignments.

Legal Dictionary

The Law Dictionary for Everyone

Counterclaim

There are two sides to every argument: (1) the “claim,” and (2) the “counterclaim.” The first is a statement of the party’s point, or argument for something. The second is a rebuttal , or argument opposing the claim. Once the parties have made their claims and counterclaims, they introduce the reasoning behind their arguments, and present evidence to support those claims. The claim/counterclaim system is used to make points in everything from essays and scientific papers, to litigation . To explore this concept, consider the following counterclaim definition.

Definition of Counterclaim

  • A claim made to offset another claim in a legal action.
  • To assert a claim for relief against a party who has made an original claim.

1775-1785       English (counter +claim)

What is Counterclaim

In very simple terms, a counterclaim is the opposite of a claim. In the legal system, once a person (the “ plaintiff ”) has filed a legal action, which makes certain claims against the other party (the “ defendant ”), the defendant must file an answer to the claims with the court. Once this has been done, the process of each party proving his own position begins. The counterclaim is just one of the four elements of an argument, which include:

  • Claim – to assert facts that give rise to a legally enforceable right or judicial action
  • Counterclaim – a claim for relief made in opposition to, or to offset another person’s claim
  • Reasons – the rationale behind a party’s claim
  • Evidence – something that proves the truth of a claim, or leads to a conclusion

Counterclaim Example

Marsha is a busy design consultant for a home décor and renovation company. Her job frequently takes her out of the office to visit clients’ homes and offices to formulate a redecoration plan, personally pick out supplies, and to personally check up on the construction or installation. Marsha’s phone is constantly ringing, as she fields phone calls throughout the day, regardless of her location. Marsha desperately wants to separate her stressful job from her personal life, so she tells her employer, Ralph, that she needs a company cell phone. Ralph, thinking only of the additional expense, simply says “No.”

Marsha has made her claim – asking for a company cell phone.

Ralph has made his counterclaim – responding in the negative.

Now Jane must offer substantial and valid reasons to convince Ralph that she needs the company to provide her with a company phone. Jane might provide evidence of the hardship using her personal phone is causing her and her family. Jane’s reasoning may include a description of how often clients call her phone when she is at her daughter’s soccer games on Saturdays, when she is sitting down to dinner with her family, or when she is out on “date night” with her husband.

Jane may point out that she receives so many business phone calls that she has had to record a business-like greeting for her voicemail, which confuses friends and family, who think they have called her “at work” by mistake. As evidence, Jane may give Ralph copies of her cell phone activity for the past couple of months, highlighting the many business calls she has received and made.

In this example of counterclaim, Ralph now needs to support his refusal to provide Jane with a company phone. He should be ready to give good, substantiated reasons for his refusal to provide something that the company should have been paying for all along. This may include evidence of the company’s inability to foot the bill, and that the company does not require Jane to take calls on her personal phone.

Compulsory Counterclaims and Permissive Counterclaims

Once a party has filed a civil lawsuit , the defending party may file a counterclaim against him. Such a claim is aimed directly at the plaintiff for coexisting damages or claims in the same matter, which may serve to lessen the defendant’s liability . Some states have attempted to consolidate related matters by requiring that a defendant file a counterclaim on any issue directly related to the original lawsuit. This is a compulsory counterclaim , as the defendant is required to bring up any issues that may counter the plaintiff’s claim, as part of the same lawsuit. If he fails to do so, he cannot make that claim later in a separate lawsuit.

For instance, the Federal Rules of Civil Procedure , Title III, Rule 13 , compels a compulsory counterclaim if:

(a) (1) … A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:

(A)  arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

(B)  does not require adding another party over whom the court cannot acquire jurisdiction .

A permissive counterclaim is instituted by a defendant against a plaintiff in a lawsuit, but the defendant’s claim does not arise from the same issue or transaction as the plaintiff’s original claim. Many states allow permissive counterclaims, depending on the subject matter, and how it relates to the original lawsuit. While a defendant is not required to bring up such issues during the current case, as would be the case in a compulsory counterclaim, if he does, and the issue is decided by the court as part of the lawsuit ruling, the defendant cannot bring that claim later in another lawsuit.

Example of Compulsory Counterclaim

Martin convinces his friend, Adam, to invest in his new ice cream truck business. The two enter into a written contract, which specifies that Adam will put in an initial investment of $5,000, and that Martin will do all of the work in obtaining an ice cream truck and inventory, and that he will work the truck. Adam agreed to pay another $5,000 in four months’ time to help ensure the business is well-funded in its early months. Sixty days after Adam paid Martin the initial $5,000, he discovered that Martin hadn’t purchased the truck or inventory like he was supposed to do, yet the money has been spent. As a result, Adam backs out, refusing to pay any more money.

Martin files a lawsuit in small claims court, asking the court to order Adam to pay the remaining $5,000 required by the contract. At trial , Adam argues that Martin hadn’t done the things he was supposed to do according to the business plan, and he suspected he didn’t intend to, which is the reason he had backed out of the deal. The judge rules in Martin’s favor, because the two had a written contract, and Adam hadn’t proven that Martin would not, or could not, accomplish all of the necessary tasks for the business. Adam is ordered to pay Martin the remaining $5,000, and the contract is to remain in full force and effect.

Once Martin had filed his lawsuit, Adam could have filed a counterclaim, claiming that Martin had fraudulently convinced him to invest the money, and asking for his $5,000 investment to be returned. This counterclaim then requires Martin to show to the court that he had indeed been fulfilling his responsibilities according to the contract, and that he will continue to do so. In such a case, the court will hear the entire case, from both sides, before making its decision.

A ruling in this example of counterclaim will likely balance the liability between both sides, with a net judgment being rendered. For instance, if the court determines that Adam does indeed have to pay the other $5,000, but that Martin had falsely inflated the amount of money needed in order to trick Adam into giving him $2,000 more than the business required, Adam may be ordered to pay Martin only $3,000.

If the pair lived in a state of compulsory counterclaim, Adam would be required to make this claim within a certain period of time after Martin had filed the lawsuit. If he failed to do so, he could not later file a lawsuit claiming Martin had fraudulently induced him into the contract.

Frivolous Counterclaim Rejected by Court

In 2013, three limited partners of a failed real estate venture filed a civil lawsuit against the general partners, who controlled the company. The plaintiffs accused the general partners of mishandling the business, causing the loss of their $1.9 million investment. Shortly after this lawsuit was filed in a New Jersey court, the defendant managing partners filed a counterclaim, suing the limited partners for breach of fiduciary duty , waste of corporate funds, and violation of the covenant of good faith and fair dealings.

The plaintiff partners immediately realized that the counterclaim was a thinly veiled attempt to manipulate and restrict settlement efforts, and filed a motion to dismiss the counterclaim. In the counterclaim, the managing partners argued that, by suing them, the limited partners were wasting company money, which was ultimately used to defend the lawsuit. The court noted that, while partners usually owe a fiduciary duty to one another in their business venture, such duty is generally imposed on the majority or controlling partner. The limited partners in Deerhaven LLC had no control over the company, and therefore had no fiduciary duty to not bring suit against the managing partners.

In this example of counterclaim, the claim was found to be frivolous and dismissed by the court. The judge wasn’t through there, however, as he sanctioned the managing partners, ordering them to pay the minority partners’ attorneys’ fees.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Covenant of Good Faith and Fair Dealings – A presumption that parties to a contract will deal with one another fairly, honestly, and in good faith.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Fiduciary Duty – A legal duty to act in another party’s best interest.
  • Frivolous – Something of little importance, or which has no sound basis in fact or law.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
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How to write a Counterclaim Paragraph, Sentence or Rebuttal

  • by Joseph Kenas
  • January 18, 2024

Counterclaim in an essay

If you are writing an argumentative essay, you will find yourself including counterclaims. In this guide, we guide you on how to write a good counterclaim in an essay and how to frame your counterclaim sentence and paragraph in rebuttal.

Counterclaims are mostly included in an argumentative essay where you are required to convince your readers to agree with your arguments and point of view concerning the topic in question. 

What is a Counterclaim in an Essay?

A counterclaim can be regarded as the argument or arguments that oppose the thesis statement in your essay. Within the introduction, you introduce the topic and create a thesis statement in the last sentence that makes it clear to your audience the point(s) you want to prove and the strategy you will use to prove it. 

The counterclaim demonstrates to the reader that you have put into consideration the perspectives of the opposing side and you find such perspectives to be weak.

As such, a counterclaim will allow you to respond to the potential arguments of your readers before they complete reading the essay.

Additionally, a counterclaim demonstrates that both sides of the debate have been put into consideration, hence strengthening your position. 

Difference Between a Claim and a Counterclaim

There is a big difference between a claim and a counterclaim. When writing essays, one may need to include both in the same essay, especially when presenting an argumentative topic.

The difference between a claim and a counterclaim lies in their assertion. A claim is a statement that demonstrates the position of argument or the assertion of a fact or a truth. On the other hand, a counterclaim is an argument that negates a specific claim by rebutting it. While a claim asserts the writer’s argument, a counterclaim rebuts.

When writing an essay, particularly an argumentative essay, you will have a topic and a thesis statement that will show the readers the points you are going to prove and how you will prove them.

claim vs counterclaim

Most of your paper will be dedicated to proving your claim to the reader so that they can agree with your point of view. 

A good claim should be arguable and at times controversial to allow the readers to think otherwise about your perspectives as the writer.

It can also come up with their interpretations concerning the topic.

Because of this, the essay will be based on the claim and you will demonstrate why your claim is accepted. On the other hand, a counterclaim is a statement of opposition that will allow the readers to perceive the whole picture of the arguments.

Though this is the case, the counterclaim demonstrates that the writer has anticipated arguments against their claim and has provided proof, through the counterclaim, that the readers’ perspectives are false or weak. 

As such, when the counterclaim is stated, it is addressed concerning its weaknesses or limitations. This enhances the claim’s strength.  

How to Write a Good Counterclaim in an Essay

If you wish to write a good counterclaim, make sure that it takes the form of two stages.

writing counterclaim

The first stage is where you go against your claim or argument so that you can challenge it and the second stage is where you turn back to your claim or argument to re-affirm it.

When writing a good counterclaim, you imagine that some of your readers will be skeptical and you have to make them agree with you. 

For example, if you want to present a counterclaim showing that there was a problem with how you demonstrated your claims, like an unwarranted assumption, certain evidence was played down or ignored, and so on, you can support the counterclaim by presenting the disadvantages or drawbacks of the issues with the presentation. Then, give an alternative proposal or alternative that would make more sense to the readers.

To refute the counterclaim, you announce with words like ‘yet’, ‘but’, ‘however’, ‘still’, or ‘nevertheless’ to indicate that you are about to show why the counterclaim is wrong. Acknowledge that it is a good claim but demonstrate that yours might help the argument more. 

Where to Write a Counterclaim in an Essay

A counterclaim can be included anywhere within the body of the essay except the conclusion. There are some cases where you can write a counterclaim at the second last sentence of the introduction paragraph followed by the thesis statement which acts as the refutation.

You can also write a counterargument after the introduction to show the anticipated reaction to your point of view before moving forward with writing your actual claims. 

Moving forward, the reason why you cannot place the counterclaim within the conclusion is that you have to include a rebuttal paragraph or statements after you have written the counterclaim. Therefore, a counterclaim located at the conclusion will miss the rebuttal paragraph or statements. 

However, argumentative essays can take different structures. Even though such essays will have a basic structure of an introduction, body paragraphs, and a conclusion, the differences will occur within the body paragraphs. Such differences dictate where the counterclaim(s) are located. 

There is a structure where the counterclaims are located within all the body paragraphs. In this case, you will write your claim, followed by a counterclaim, and then a rebuttal. This means that for every claim you present to support your thesis, there will be a counterclaim and a rebuttal.

The most common structure is where you present your claims and present the counterclaim(s) before the conclusion. The counterclaim is immediately followed by a rebuttal.

Dos and Don’ts of Writing a Counterclaim

When it comes to the dos of writing a counterclaim, always ensure that it is followed by a rebuttal to demonstrate that your claims are superior to it. Secondly, courteously present your counterclaims to avoid upsetting the reader.

Dos and Don'ts

Acknowledge the anticipated arguments from the readers.

Demonstrate that the readers’ points of view are valid but your perspective makes more sense.

Finally, appeal to the logic of the readers through the use of valid evidence.

Concerning the don’ts when writing a counterclaim, do not include a counterargument just for the sake of it.

Make sure that the counterargument is valid in its own right and it is verifiable through evidence.

This is because your readers will also use logic and evidence when thinking about your claims. Secondly, do not use a disrespectful or uncourteous tone when addressing the other side of the argument. 

Examples of Counterclaims

A counterclaim in a separate paragraph.

Counterclaim:  “Opponents argue that after-school sports can increase the likelihood of sports-related injuries (Bancroft, 2018). Even minor injuries sustained from participation in after-school sports increase absent rates and the expense of creating injury reports for students (Sizemore, 2019)” . 

Refutation:  “Although students do suffer both serious and minor injuries in after-school sports, these injuries are quite rare (Kinney, 2016) . 

Embedded Within a Paragraph

“Without free after-school sports programs, many students would still play sports without adult supervision and even more injuries would result”.   Counterclaim :  “However, some people would argue that after-school sports can increase the likelihood of sports-related injuries (Sizemore 2019)”.   Refutation:   “Although students do suffer both serious and minor injuries in after-school sports, without school-sponsored sports, the likelihood of more injuries from less supervised recreational leagues or privately sponsored leagues with fewer safety regulations would be much worse” .

How Long Should a Counterclaim Be?

A counterclaim can be as long as a paragraph if it appears after the introduction paragraph or at the end of the body before the conclusion. However, if a counterclaim is located within a paragraph, it can be a few sentences long (2-3). 

However, the length of a counterclaim depends on the length of a claim in general. You can learn more about how to write a claim paragraph in that guide so that you can learn the two in general.

How many Counterclaims can you Put?

This depends on the structure of the essay. If the counterclaim appears after the introduction or before the conclusion, then it will only be one. However, if it is embedded within paragraphs, then they will be as many as the supportive augments.

This is because they will be used to refute every claim made within the body paragraph. If your supporting claims are 5 then the counterclaims will be 5 and so on. 

Check out how to write college essays in our guide that we hope will lead you to score well.

thesis counter claim

Joseph is a freelance journalist and a part-time writer with a particular interest in the gig economy. He writes about schooling, college life, and changing trends in education. When not writing, Joseph is hiking or playing chess.

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How to Write a Counterclaim [Explained Simply!]

Counterclaims are an essential part of a top-notch argumentative essay. After all, they show that you’ve thoroughly researched and considered both sides of the issue before deciding on your particular stance.

There’s just one problem: they can be a little tricky to write without weakening your main argument, as you may already be aware!

That’s why we put together this guide on writing a counterclaim that will only enhance your position in an argumentative essay and not take anything away from it.

By the end of this article, you’ll be writing counterclaims like a pro – and get that grade you deserve on your next paper. Let’s get started!

What Is a Counterclaim in Writing?

Before we get into how to write one, let’s clarify what we mean by “counterclaim.” In writing, a counterclaim is an opposing argument that goes against the thesis statement of a paper.

It shows your audience that you have researched the topic thoroughly by looking into both sides of the issue and that you’re not trying to hide any important information that refutes your thesis.

Not only that, a well-written counterclaim can even help you win over those who don’t agree with your main claim or argument – especially when you make some good points in your rebuttal paragraph (which we will get into as well).

For example, let’s say you’re writing an argumentative essay on the use of cellphones in schools. If your claim is that they should be allowed at all times because they can help support learning, then the counterclaim could be that they’re more distracting than anything else.

How to Write a Counterclaim

The key to excellent argumentative writing is to make your position convincing and clear while acknowledging – not to mention rebutting – the counterarguments. Fortunately, you can break down the process of crafting a great counterclaim into four simple steps:

1. Research, Research, Research

Of course, a thorough understanding of your position on the topic is essential, but you should also have a good grasp of the main arguments of your opponents.

It’s not enough to just know what the arguments are – you need to know why other people feel this way.

For example, going back to our cellphone paper. If one of the main counterclaims is that cellphones are distracting in schools, you need to find out what is driving these opinions. Are there facts to back it up, or is this purely based on anecdotal evidence?

Once you feel like you have a firm grasp on the opposing view, you can move on to the next step.

2. Determine Where to Put the Counterclaim

A well-written essay typically starts with a few introductory sentences to capture the reader’s attention. Next comes the thesis and the claims (backed with plenty of research and evidence, of course).

By this point, your stance on the issue should be clear, so it’s usually safe to start including your counterclaims in the body of the essay.

As to where exactly you should include your counterclaims, two of the best options include the following:

  • In the paragraphs. If your paper has several claims you want to counter, then you may address each one in the paragraphs. This is often most effective right after supporting your claims with evidence and arguments.
  • Before the conclusion. This is often the preferred place for counterclaims, especially in shorter essays. It’s a good option because your reader should have a firm grasp of your position at this point, so the counterclaims shouldn’t really weaken your main arguments.

Remember that your counterclaim paragraph(s) should be separate from your introduction and conclusion. As long as it’s outside these areas, your counterclaim should be in a perfectly acceptable position in the paper.

3. Figure Out How Long Your Counterclaim Should Be

It isn’t time to start writing yet! Now that you’ve identified your counterclaim or counterclaims, you need to figure out how much space to devote to it in your essay.

You’ll want to cover the opposing side as concisely as possible, as you don’t want to give them more space than your claims. This is especially important if you have a specific word count; dragging out a counterclaim argument for too long may not leave enough room for you to argue your position properly.

In most cases, one short paragraph per counterclaim should do the trick. Just remember that you need to explain the opposing argument and why others feel this way.

4. Consider How to Present the Counterclaim Fairly

Before you officially start typing things out, one of the most important things to consider is how you will present your counterclaim fairly. You don’t want to present the opposing view with an obvious bias, as it may take away from the credibility of your paper.

And besides, you shouldn’t have to put the other viewpoint down to clarify your stance!

You should have already put lots of strong evidence and arguments in favor of your position throughout your paper, so trying to understand and present the opposing viewpoint fairly shouldn’t weaken your claims too much.

5. Write Your Counterclaim

You’re finally ready to write your counterclaim! The first thing you need to do is include an appropriate transition to help with the flow of your paper.

Some good transitions include:

  • Critics have argued that…
  • On the other side of the argument, people are concerned that…
  • The contrasting viewpoint indicates that…

Once you have chosen an appropriate transition and stated the opposing viewpoint, you can describe why people feel this way. And don’t forget your evidence! As with your claims, you need to show that you’ve done the research to support this position.

From here, you can write your rebuttal explaining any issues or weaknesses with the counterclaim. This is essential to solidifying your original position.

Some suggestions for a good rebuttal include:

  • Detailing the particular weaknesses with the counterclaim
  • Acknowledging that while these viewpoints have some merit, there is a solution that renders it baseless
  • Showing that the benefits of your claims outweigh the risks of the counterclaims
  • Pointing out that the benefits of the counterclaim are exceedingly rare

Tips on Writing a Great Counterclaim

Want to make a good counterclaim even better? Remember these tips when writing:

  • Objectivity is key. As passionately as you may feel about your position, do your best to remain objective when presenting a counterclaim. For example, avoid saying things like “critics mistakenly believe that…”
  • Don’t leave out information on purpose. If you find evidence for your counterclaim supported by research, don’t leave it out of your paper to avoid weakening your argument. Instead, explain why it is weaker than your claims.
  • Read through other essays. If you’re still unsure what a good counterclaim looks like, read professional-level papers to see how others have done it.
  • A second set of eyes is always helpful! If you can, get someone to read through your paper to make sure your counterclaim is clear, objective, and concise. You may also want their opinion on whether your rebuttal is effective enough to dispute the main points of your counterclaim.

The Bottom Line

Though it may seem daunting, writing an effective counterclaim doesn’t have to be difficult.

Just remember to do your research, avoid putting it in the introduction and conclusion, keep it to a paragraph, present it fairly, and transition into it appropriately.

And most of all, do your best to put any biases aside and remain objective.

By following these tips, writing counterclaims will become second nature to you in no time. Good luck with your next paper!

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Dianna Radcliff

Dianna Radcliff

Teaching Upper Elementary & more

How to Teach Claims, Counterclaims and Rebuttals in Writing!

July 29, 2019 by Dianna Radcliff

How to Teach Claims, Counterclaims and Rebuttals in Writing

Teaching claims, counterclaims and rebuttals in writing can improve a students opinion or argumentative essay.

This post will explain how I teach claims, counterclaims and rebuttals in writing.

To begin, let’s clarify the meaning of the following terms when giving instruction:

  • Counterclaim

Teach Claims Counterclaims and Rebuttals in Writing

What is a Counterclaim?

A counterclaim is a claim used to rebut a previous claim.

A claim is the main argument. A counterclaim is the opposite of the claim, or argument.

What is a Rebuttal?

A rebuttal is when you address and challenge a claim by disapproving it.

After you have stated your counterclaim in an argument, you add your rebuttal to why you disapprove it. The goal is to weaken the main argument with your reasons and evidence.

What is a Reason?

A reason tells why a claim is made. Followed by supporting evidence.

What is Evidence?

Evidence is the facts or research to support the claim and reason.

Mini Lesson:

What to Prepare in advance:

  • Download, print, cut, laminate and attach to sticks the FREE resource below.
  • Write or type examples of a claim, counterclaim and rebuttal then cut up. This is for the acting out part. (see image below as an example)
  • Find additional examples via student work pieces, articles or in texts to share and color code. You can share on another anchor chart, display on your SmartBoard or simply read aloud.

Teach Claim Counterclaim and Rebuttal in writing

  • Introduce the lesson by creating an anchor chart. (See below example or search online.)
  • Using the colors in my example below, or your own colors, share examples from student pieces, articles or in texts you have found. You can share these examples on another anchor chart, display on your SmartBoard or simply read aloud.
  • Using the stick bubbles in the FREE resource below, have 3 volunteers come up to demonstrate. Line students up in order and have them read their part holding up the stick bubble when speaking.

Teach Claims Counterclaims and Rebuttals in Writing

Anchor Chart Examples:

***Click on the Anchor Chart images to find more anchor charts you can use in your classroom!

anchor chart  to teach claim counterclaim rebuttal in writing

Where to insert a Counterclaim?

When modeling, show students examples of inserting a counterclaim inside a body paragraph following reasons and evidence.

Where to insert a Rebuttal?

When modeling, show students examples of inserting a rebuttal following a counterclaim inside a body paragraph. Always use reasons and evidence.

Free Resource to Download:

More Helpful Essay Writing Resources:

  • FREE Essay Planning Pages
  • FREE Paragraph Writing Rubric
  • FREE Paragraph Writing for an Essay Graphic Organizers (Color Coded)
  • FREE Essay Writing Timing Slides
  • Essay Writing Test Prep PowerPoint
  • Essay Writing Sources and Prompts

***Click HERE or on the photo below to Download your FREE Resource! Simply print on colored paper (or cardstock) and then laminate!

Thank you for subscribing!

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  • How to write an argumentative essay | Examples & tips

How to Write an Argumentative Essay | Examples & Tips

Published on July 24, 2020 by Jack Caulfield . Revised on July 23, 2023.

An argumentative essay expresses an extended argument for a particular thesis statement . The author takes a clearly defined stance on their subject and builds up an evidence-based case for it.

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Table of contents

When do you write an argumentative essay, approaches to argumentative essays, introducing your argument, the body: developing your argument, concluding your argument, other interesting articles, frequently asked questions about argumentative essays.

You might be assigned an argumentative essay as a writing exercise in high school or in a composition class. The prompt will often ask you to argue for one of two positions, and may include terms like “argue” or “argument.” It will frequently take the form of a question.

The prompt may also be more open-ended in terms of the possible arguments you could make.

Argumentative writing at college level

At university, the vast majority of essays or papers you write will involve some form of argumentation. For example, both rhetorical analysis and literary analysis essays involve making arguments about texts.

In this context, you won’t necessarily be told to write an argumentative essay—but making an evidence-based argument is an essential goal of most academic writing, and this should be your default approach unless you’re told otherwise.

Examples of argumentative essay prompts

At a university level, all the prompts below imply an argumentative essay as the appropriate response.

Your research should lead you to develop a specific position on the topic. The essay then argues for that position and aims to convince the reader by presenting your evidence, evaluation and analysis.

  • Don’t just list all the effects you can think of.
  • Do develop a focused argument about the overall effect and why it matters, backed up by evidence from sources.
  • Don’t just provide a selection of data on the measures’ effectiveness.
  • Do build up your own argument about which kinds of measures have been most or least effective, and why.
  • Don’t just analyze a random selection of doppelgänger characters.
  • Do form an argument about specific texts, comparing and contrasting how they express their thematic concerns through doppelgänger characters.

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An argumentative essay should be objective in its approach; your arguments should rely on logic and evidence, not on exaggeration or appeals to emotion.

There are many possible approaches to argumentative essays, but there are two common models that can help you start outlining your arguments: The Toulmin model and the Rogerian model.

Toulmin arguments

The Toulmin model consists of four steps, which may be repeated as many times as necessary for the argument:

  • Make a claim
  • Provide the grounds (evidence) for the claim
  • Explain the warrant (how the grounds support the claim)
  • Discuss possible rebuttals to the claim, identifying the limits of the argument and showing that you have considered alternative perspectives

The Toulmin model is a common approach in academic essays. You don’t have to use these specific terms (grounds, warrants, rebuttals), but establishing a clear connection between your claims and the evidence supporting them is crucial in an argumentative essay.

Say you’re making an argument about the effectiveness of workplace anti-discrimination measures. You might:

  • Claim that unconscious bias training does not have the desired results, and resources would be better spent on other approaches
  • Cite data to support your claim
  • Explain how the data indicates that the method is ineffective
  • Anticipate objections to your claim based on other data, indicating whether these objections are valid, and if not, why not.

Rogerian arguments

The Rogerian model also consists of four steps you might repeat throughout your essay:

  • Discuss what the opposing position gets right and why people might hold this position
  • Highlight the problems with this position
  • Present your own position , showing how it addresses these problems
  • Suggest a possible compromise —what elements of your position would proponents of the opposing position benefit from adopting?

This model builds up a clear picture of both sides of an argument and seeks a compromise. It is particularly useful when people tend to disagree strongly on the issue discussed, allowing you to approach opposing arguments in good faith.

Say you want to argue that the internet has had a positive impact on education. You might:

  • Acknowledge that students rely too much on websites like Wikipedia
  • Argue that teachers view Wikipedia as more unreliable than it really is
  • Suggest that Wikipedia’s system of citations can actually teach students about referencing
  • Suggest critical engagement with Wikipedia as a possible assignment for teachers who are skeptical of its usefulness.

You don’t necessarily have to pick one of these models—you may even use elements of both in different parts of your essay—but it’s worth considering them if you struggle to structure your arguments.

Regardless of which approach you take, your essay should always be structured using an introduction , a body , and a conclusion .

Like other academic essays, an argumentative essay begins with an introduction . The introduction serves to capture the reader’s interest, provide background information, present your thesis statement , and (in longer essays) to summarize the structure of the body.

Hover over different parts of the example below to see how a typical introduction works.

The spread of the internet has had a world-changing effect, not least on the world of education. The use of the internet in academic contexts is on the rise, and its role in learning is hotly debated. For many teachers who did not grow up with this technology, its effects seem alarming and potentially harmful. This concern, while understandable, is misguided. The negatives of internet use are outweighed by its critical benefits for students and educators—as a uniquely comprehensive and accessible information source; a means of exposure to and engagement with different perspectives; and a highly flexible learning environment.

The body of an argumentative essay is where you develop your arguments in detail. Here you’ll present evidence, analysis, and reasoning to convince the reader that your thesis statement is true.

In the standard five-paragraph format for short essays, the body takes up three of your five paragraphs. In longer essays, it will be more paragraphs, and might be divided into sections with headings.

Each paragraph covers its own topic, introduced with a topic sentence . Each of these topics must contribute to your overall argument; don’t include irrelevant information.

This example paragraph takes a Rogerian approach: It first acknowledges the merits of the opposing position and then highlights problems with that position.

Hover over different parts of the example to see how a body paragraph is constructed.

A common frustration for teachers is students’ use of Wikipedia as a source in their writing. Its prevalence among students is not exaggerated; a survey found that the vast majority of the students surveyed used Wikipedia (Head & Eisenberg, 2010). An article in The Guardian stresses a common objection to its use: “a reliance on Wikipedia can discourage students from engaging with genuine academic writing” (Coomer, 2013). Teachers are clearly not mistaken in viewing Wikipedia usage as ubiquitous among their students; but the claim that it discourages engagement with academic sources requires further investigation. This point is treated as self-evident by many teachers, but Wikipedia itself explicitly encourages students to look into other sources. Its articles often provide references to academic publications and include warning notes where citations are missing; the site’s own guidelines for research make clear that it should be used as a starting point, emphasizing that users should always “read the references and check whether they really do support what the article says” (“Wikipedia:Researching with Wikipedia,” 2020). Indeed, for many students, Wikipedia is their first encounter with the concepts of citation and referencing. The use of Wikipedia therefore has a positive side that merits deeper consideration than it often receives.

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An argumentative essay ends with a conclusion that summarizes and reflects on the arguments made in the body.

No new arguments or evidence appear here, but in longer essays you may discuss the strengths and weaknesses of your argument and suggest topics for future research. In all conclusions, you should stress the relevance and importance of your argument.

Hover over the following example to see the typical elements of a conclusion.

The internet has had a major positive impact on the world of education; occasional pitfalls aside, its value is evident in numerous applications. The future of teaching lies in the possibilities the internet opens up for communication, research, and interactivity. As the popularity of distance learning shows, students value the flexibility and accessibility offered by digital education, and educators should fully embrace these advantages. The internet’s dangers, real and imaginary, have been documented exhaustively by skeptics, but the internet is here to stay; it is time to focus seriously on its potential for good.

If you want to know more about AI tools , college essays , or fallacies make sure to check out some of our other articles with explanations and examples or go directly to our tools!

  • Ad hominem fallacy
  • Post hoc fallacy
  • Appeal to authority fallacy
  • False cause fallacy
  • Sunk cost fallacy

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An argumentative essay tends to be a longer essay involving independent research, and aims to make an original argument about a topic. Its thesis statement makes a contentious claim that must be supported in an objective, evidence-based way.

An expository essay also aims to be objective, but it doesn’t have to make an original argument. Rather, it aims to explain something (e.g., a process or idea) in a clear, concise way. Expository essays are often shorter assignments and rely less on research.

At college level, you must properly cite your sources in all essays , research papers , and other academic texts (except exams and in-class exercises).

Add a citation whenever you quote , paraphrase , or summarize information or ideas from a source. You should also give full source details in a bibliography or reference list at the end of your text.

The exact format of your citations depends on which citation style you are instructed to use. The most common styles are APA , MLA , and Chicago .

The majority of the essays written at university are some sort of argumentative essay . Unless otherwise specified, you can assume that the goal of any essay you’re asked to write is argumentative: To convince the reader of your position using evidence and reasoning.

In composition classes you might be given assignments that specifically test your ability to write an argumentative essay. Look out for prompts including instructions like “argue,” “assess,” or “discuss” to see if this is the goal.

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The Alabama Supreme Court has ruled that frozen embryos should be considered children.

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Rel: February 16, 2024 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2023-2024 SC-2022-0515 James LePage and Emily LePage, individually and as parents and next friends of two deceased LePage embryos, Embryo A and Embryo B; and William Tripp Fonde and Caroline Fonde, individually and as parents and next friends of two deceased Fonde embryos, Embryo C and Embryo D V. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center Appeal from Mobile Circuit Court (CV-21-901607)

SC-2022-0515; SC-2022-0579 SC-2022-0579 Felicia Burdick-Aysenne and Scott Aysenne, in their individual capacities and as parents and next friends of Baby Aysenne, deceased embryo/minor V. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center MITCHELL, Justice. ¹ Appeal from Mobile Circuit Court (CV-21-901640) This Court has long held that unborn children are "children" for purposes of Alabama's Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child's death. The central question presented in these consolidated appeals, which involve the death of embryos kept ¹These consolidated appeals were originally assigned to another Justice on this Court; they were reassigned to Justice Mitchell on December 15, 2023. 2

SC-2022-0515; SC-2022-0579 in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location. Facts and Procedural History The plaintiffs in these consolidated appeals are the parents of several embryonic children, each of whom was created through in vitro fertilization (IVF") and until the incident giving rise to these cases had been kept alive in a cryogenic nursery while they awaited implantation. James LePage and Emily LePage are the parents of two embryos whom they call "Embryo A" and "Embryo B"; William Tripp Fonde and Caroline Fonde are the parents of two other embryos called "Embryo C" and "Embryo D"; and Felicia Burdick-Aysenne and Scott Aysenne are the parents of one embryo called "Baby Aysenne." Between 2013 and 2016, each set of parents went to a fertility clinic operated by the Center for Reproductive Medicine, P.C. ("the Center"), to undergo IVF treatments. During those treatments, doctors were able to 3

SC-2022-0515; SC-2022-0579 help the plaintiffs conceive children by joining the mother's eggs and the father's sperm "in vitro" -- that is, outside the mother's body. The Center artificially gestated each embryo to "a few days" of age and then placed the embryos in the Center's "cryogenic nursery," which is a facility designed to keep extrauterine embryos alive at a fixed stage of development by preserving them at an extremely low temperature. The parties agree that, if properly safeguarded, an embryo can remain alive in a cryogenic nursery "indefinitely" -- several decades, perhaps longer. The plaintiffs' IVF treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies. The plaintiffs contracted to have their remaining embryos kept in the Center's cryogenic nursery, which was located within the same building as the local hospital, the Mobile Infirmary Medical Center ("the Hospital"). The Hospital is owned and operated by the Mobile Infirmary Association ("the Association"). The plaintiffs allege that the Center was obligated to keep the cryogenic nursery secured and monitored at all times. But, in December 2020, a patient at the Hospital managed to wander into the Center's fertility clinic through an unsecured doorway. The patient then entered 4

SC-2022-0515; SC-2022-0579 the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient's hand, causing the patient to drop the embryos on the floor, killing them. The plaintiffs brought two lawsuits against the Center and the Association. The first suit was brought jointly by the LePages and the Fondes; the second was brought by the Aysennes. Each set of plaintiffs asserted claims under Alabama's Wrongful Death of a Minor Act, § 6-5391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes' case) or negligence and wantonness (in the Aysennes' case), for which they sought compensatory damages, including damages for mental anguish and emotional distress. The plaintiffs specified, however, that their common-law claims were pleaded "in the alternative, and only [apply] should the Courts of this State or the United States Supreme Court ultimately rule that [an extrauterine embryo] is not a minor child, but is instead property." In addition to those claims, the Aysennes brought breach-of-contract and bailment claims against the Center. The Center and the Association filed joint motions in each case 5

SC-2022-0515; SC-2022-0579 asking the trial court to dismiss the plaintiffs' wrongful-death and negligence/wantonness claims against them in accordance with Rules 12(b)(1) and 12(b)(6), Ala. R. Civ. P. The trial court granted those motions. In each of its judgments, the trial court explained its view that "[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "child,"" and it therefore held that their loss could not give rise to a wrongful-death claim. The trial court also concluded that the plaintiffs' negligence and wantonness claims could not proceed. Specifically, the court reasoned that, to the extent those claims sought recovery for the value of embryonic children, the claims were barred by Alabama's longstanding prohibition on the recovery of compensatory damages for loss of human life. And to the extent the claims sought emotional-distress damages, the trial court said that they were barred by the traditional limits to Alabama's "zone of danger test," which "limits recovery for emotional injury only to plaintiffs who sustained a physical injury or were placed in immediate risk of physical harm ...." The trial court's judgments disposed entirely of the LePages' and the Fondes' claims, and left the Aysennes with only their breach-of 6

SC-2022-0515; SC-2022-0579 contract and bailment claims. The Aysennes asked the trial court to certify its judgment as final under Rule 54(b), Ala. R. Civ. P., which the trial court did. Both sets of plaintiffs appealed. Standard of Review We review a trial court's judgment granting a motion to dismiss de novo, without any presumption of correctness. Hawkins v. Ivey, 365 So. 3d 1058, 1060 (Ala. 2022). Analysis The parties to these cases have raised many difficult questions, including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to such children, and the public-policy implications of treating extrauterine children as human beings. But the Court today need not address these questions because, as explained below, the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation. That language resolves the only issue on appeal with respect to the plaintiffs' wrongful-death claims and renders moot their common-law negligence and wantonness claims. 7

SC-2022-0515; SC-2022-0579 A. Wrongful-Death Claims Before analyzing the parties' disagreement about the scope of the Wrongful Death of a Minor Act, we begin by explaining some background points of agreement. All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a "human life," "human being," or "person," as those words are used in ordinary conversation and in the text of Alabama's wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child's development, regardless of viability. The question on which the parties disagree is whether there exists an unwritten exception to that rule for unborn children who are not physically located "in utero" -- that is, inside a biological uterus -- at the time they are killed. The defendants argue that this Court should recognize such an exception because, they say, an unborn child ceases to qualify as a "child or "person" if that child is not contained within a biological womb. 8

SC-2022-0515; SC-2022-0579 The plaintiffs, for their part, argue that the proposed exception for extrauterine children would introduce discontinuity within Alabama law. They contend, for example, that the defendants' proposed exception would deprive parents of any civil remedy against someone who kills their unborn child in a "partial-birth" posture -- that is, after the child has left the uterus but before the child has been fully delivered from the birth canal -- despite this State's longstanding criminal prohibition on partial-birth abortion, see Ala. Code 1975, § 26-23-3. The plaintiffs also argue that the defendants' proposed exception would raise serious constitutional questions. For instance, one latent implication of the defendants' position though not one that the defendants seem to have anticipated -- is that, under the defendants' test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a "child" or "person," because such a child would both be (1) "unborn" (having never been delivered from a biological womb) and (2) not "in utero."2 And if such -- 2Until recently, there had been a longstanding ethical norm against artificially gestating human embryos past 14 days of development. Henry T. Greely, The 14-Day Embryo Rule: A Modest Proposal, 22 Hous. J. Health L. & Pol'y 147 (2022). But that norm is wavering, and there is currently nothing stopping "researchers from allowing ex vivo [that is, 9

SC-2022-0515; SC-2022-0579 children were not legal "children" or "persons," then their lives would be unprotected by Alabama law. The plaintiffs argue that this sort of unequal treatment would offend the Equal Protection Clause of the 14th Amendment to the United States Constitution, which prohibits states from withholding legal protection from people based on immutable features of their birth or ancestry. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 208 (2023) ("'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."" (citations omitted)).³ extrauterine] human embryos to develop for eight or nine weeks postfertilization Or to viability .... Or, for that matter, to 38 weeks postfertilization and full term." Id. at 154-55; see also Kirstin R.W. Matthews & Daniel Morali, National Human Embryo and Embryoid Research Policies: A Survey of 22 Top Research-intensive Countries, 15 Regenerative Med. 1905 (2020) ("While the USA was the first to propose the 14-day limit, the limit was never passed as a federal law."). There are, of course, practical limitations on developing extrauterine embryos to term, but those limitations are shrinking each year due to "technological advances." See Matthews & Morali, 15 Regenerative Med. at 1905. ³In his dissenting opinion, Justice Cook appears to concede that the life of a fully developed child who was conceived and gestated in vitro would not be protected under his and the defendants' reading of the Wrongful Death of a Minor Act. See So. 3d at n.55 (arguing that "the Legislature" would have to intervene to protect the lives of any 10

SC-2022-0515; SC-2022-0579 These are weighty concerns. But these cases do not require the Court to resolve them because, as explained below, neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude extrauterine children from the Act's coverage. Unborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics. 1. The Text of the Wrongful Death of a Minor Act Applies to All Children, Without Exception First enacted in 1872, the Wrongful Death of a Minor Act allows the parents of a deceased child to bring a claim seeking punitive damages "[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person," provided that they do so within six months of the child's passing. § 6-5-391(a). The Act does not define either "child" or "minor child," but this Court held in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), that an unborn child qualifies as a "minor child" under the Act, regardless of that child's viability or stage of development. Id. at 611. We reaffirmed that conclusion in Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012), explaining that "Alabama's wrongful-death statute children created with these "future technologies"). Justice Cook does not, however, discuss the constitutional implications of that position. 11

SC-2022-0515; SC-2022-0579 allows an action to be brought for the wrongful death of any unborn child." Id. at 735. None of the parties before us contest the holdings in Mack and Hamilton,4 and for good reason: the ordinary meaning of "child" includes children who have not yet been born. "This Court's most cited dictionary defines 'child' as 'an unborn or recently born person,"" Ex parte Ankrom, 152 So. 3d 397, 431 (Ala. 2013) (Shaw, J., concurring in part and concurring in the result) (citing Merriam-Webster's Collegiate Dictionary So. 3d at 4Justice Cook raises several novel arguments, none of which were briefed or mentioned by the parties, in support of his view that "the public meaning of 'minor child' as used in the Wrongful Death [of a Minor] Act did not include an unborn infant." (Cook, J., dissenting). If Justice Cook were correct on that point, then it would mean that Mack erred by interpreting the Act to protect unborn children. For the reasons given in this section of the opinion, we are not persuaded that the unborn were excluded from the original meaning of the term "child." But even if Justice Cook were correct on that point, the Court would still apply Mack's definition because, as Justice Cook himself acknowledges, no party has challenged the Mack line of cases. See id. at (Cook, J., dissenting) (emphasizing that this Court does not overrule precedent unless asked to do so by the parties and explaining that "the parties [here] have neither asserted that the holdings or reasoning in either Mack or Stinnett [v. Kennedy, 232 So. 3d 202 (Ala. 2016),] are wrong, nor have they asked us to overrule those decisions"). We are perplexed by Justice Cook's insistence that we have not given Mack due deference when the bulk of his dissent is animated by the view that Mack was wrongly decided and that, contrary to its holding, unborn children are not "children" under the Act after all. 12

SC-2022-0515; SC-2022-0579 214 (11th ed. 2003)), and all other mainstream dictionaries are in accord. See, e.g., 3 The Oxford English Dictionary 113 (2d ed. 1989) (defining "child" as an "unborn or newly born human being; foetus, infant"); Webster's Third New International Dictionary 388 (2002) (defining "child" as "an unborn or recently born human being"). There is simply no "patent or latent ambiguity in the word 'child'; it is not a term of art and contains no inherent uncertainty." Ankrom, 152 So. 3d at 431 (Shaw, J., concurring in part and concurring in the result). The parties have given us no reason to doubt that the same was true in 1872, when the Wrongful Death of a Minor Act first became law. See Act No. 62, Ala. Acts 1871-72 (codified at § 2899, Ala. Code 1876). Indeed, the leading dictionary of that time defined the word "child" as "the immediate progeny of parents" and indicated that this term encompassed children in the womb. Noah Webster et al., An American Dictionary of the English Language 198 (1864) ("[t]o be with child [means] to be pregnant").5 And Blackstone's Commentaries, the leading 5As Justice Cook points out, this entry goes on to explain that the term "child" is "applied to infants from their birth; but the time when they cease ordinarily to be so called, is not defined by custom." So. 3d at (Cook, J., dissenting). Justice Cook believes that this language indicates that infants prior to birth were not considered "children." We 13

SC-2022-0515; SC-2022-0579 authority on the common law, expressly grouped the rights of unborn children with the "Rights of Persons," consistently described unborn children as "infant [s]" or "child[ren]," and spoke of such children as sharing in the same right to life that is "inherent by nature in every individual." 1 William Blackstone, Commentaries on the Laws of England 125-26.6 Those expressions are in keeping with the United disagree. The language quoted by Justice Cook contrasts newborns with older children in order to make the point that there is no clear-cut time at which a young person transitions from childhood to adulthood; it does not indicate that infants were considered something other than children prior to their birth, as the definition elsewhere makes clear when it describes a pregnant woman as being "with child." Another definition on that same page further drives home the point that unborn children are "children" when it describes "childbearing" as the act of "bearing children" in the womb. "It is true, as Justice Cook emphasizes, that the common law spared defendants from criminal-homicide liability for killing an unborn child unless the prosecution could prove that the child had been "born alive" before dying from its injuries. But the criminal law has always been "out of step with the treatment of prenatal life in other areas of law," in that it generally prioritizes lenity towards the accused over the otherwise applicable "civil rights'" of unborn children. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 247 (2022) (citation omitted). Accordingly, the born-alive safe harbor appears to have operated primarily as an evidentiary rule rather than as a substantive limitation on personhood. Joanne Pedone, Filling the Void: Model Legislation for Fetal Homicide Crimes, 43 Colum. J. L. & Soc. Probs. 77, 82 (2009) (explaining that the function of the born-alive rule was "to make sure the government established causation before obtaining a homicide conviction," during an era in which "'the state of medical science'" was primitive and in which 14

SC-2022-0515; SC-2022-0579 States Supreme Court's recent observation that, even as far back as the 18th century, the unborn were widely recognized as living persons with rights and interests. See Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 246-48 (2022). Courts interpreting statutes are required to give words their "'"natural, ordinary, commonly understood meaning,"'" unless there is some textual indication that an unusual or technical meaning applies. Swindle v. Remington, 291 So. 3d 439, 457 (Ala. 2019) (citations omitted). Here, the parties have not pointed us to any such indication, which reflects the overwhelming consensus in this State that an unborn child is just as much a "child" under the law as he or she is a "child" in everyday conversation. Even if the word "child" were ambiguous, however, the Alabama Constitution would require courts to resolve the ambiguity in favor of proving causation for prenatal injuries was difficult (quoting Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 586 (1987))). Like the socalled "quickening rule," the born-alive rule ensured that there was "'evidence of life,'" but did not provide a definition of life, and did not mean that unborn children were considered to be something other than living human beings. Dobbs, 597 U.S. at 246 (citation omitted); see also Forsythe, supra, at 586 & n.105. 15

SC-2022-0515; SC-2022-0579 protecting unborn life. Article I, § 36.06(b), of the Constitution of 2022 "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." That section, which is titled "Sanctity of Unborn Life," operates in this context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that "protect[s] ... the rights of the unborn child" equally with the rights of born children, whenever such construction is "lawful and appropriate." Id.7 When it comes to the Wrongful Death of a Minor Act, that means coming down on the side of 7Justice Cook argues that § 36.06 should not inform our analysis because, he contends, that provision "cannot retroactively change the meaning of words passed in 1872." So. 3d at (Cook, J., dissenting). But as part of our Constitution, § 36.06 represents "the supreme law of the state," meaning that all statutes "must yield" to it, whether or not they were enacted prior to its adoption. Alexander v. State ex rel. Carver, 274 Ala. 441, 446, 150 So. 2d 204, 208 (1963). Further, the definition of "child" that we apply here is in keeping with the definition that was established by this Court's precedents at the time § 36.06 was adopted. See Mack, 79 So. 3d at 611 ("[W]e hold that the Wrongful Death Act permits an action for the death of a previable fetus."); Hamilton, 97 So. 3d at 735 ("As set forth in Mack and as applicable in this case, Alabama's wrongful-death statute allows an action to be brought for the wrongful death of any unborn child."). It is Justice Cook's opinion, not this Court's, that seeks to set aside that meaning in favor of the view that the term "child," as originally understood, did not encompass "an unborn infant." See So. 3d at (Cook, J., dissenting). 16

SC-2022-0515; SC-2022-0579 including, rather than excluding, children who have not yet been born. The upshot here is that the phrase "minor child" means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: "an unborn or recently born" individual member of the human species, from fertilization until the age of majority. See MerriamWebster's Collegiate Dictionary 214 (11th ed. 2020) (defining "child"); accord Noah Webster et al., An American Dictionary of the English Language 198 (defining "child"). Nothing about the Act narrows that definition to unborn children who are physically "in utero." Instead, the Act provides a cause of action for the death of any "minor child," without exception or limitation. As this Court observed in Hamilton, "Alabama's wrongful-death statute allows an action to be brought for the wrongful death of any unborn child." 97 So. 3d at 735 (emphasis added). 2. This Court's Precedents Do Not Compel Creation of an Unwritten Exception for Extrauterine Children The defendants do not meaningfully engage with the text or history of the Wrongful Death of a Minor Act. Instead, they ask us to recognize an unwritten exception for extrauterine children in the wrongful-death context because, they say, our own precedents compel that outcome. Specifically, the defendants argue that: (1) this Court's precedents 17

SC-2022-0515; SC-2022-0579 require complete congruity between "the definition of who is a person" under our criminal-homicide laws and "the definition of who is a person" under our civil wrongful-death laws; (2) extrauterine children are not within the class of persons protected by our criminal-homicide laws; and (3) as a result, extrauterine children cannot be protected by the Wrongful Death of a Minor Act. Appellees' brief in appeal no. SC-2022-0579 at 47; Appellees' brief in appeal no. SC-2022-0515 at 49. The most immediate problem with the defendants' argument is that its major premise is unsound:8 nothing in this Court's precedents requires one-to-one congruity between the classes of people protected by Alabama's criminal-homicide laws and our civil wrongful-death laws. The defendants' error stems from their misreading of this Court's opinions in Mack and Stinnett v. Kennedy, 232 So. 3d 202 (Ala. 2016). As mentioned earlier, Mack held, based on "numerous considerations," that previable unborn children qualify as "children" under the Wrongful Death of a Minor Act. 79 So. 3d at 611. One of those considerations involved the fact that Alabama's criminal-homicide laws as amended The plaintiffs argue that both premises are faulty, but since we agree that the first is wrong, we have no need to reach the second. 18

SC-2022-0515; SC-2022-0579 by the Brody Act, Act No. 2006-419, Ala. Acts 2006 -- expressly included (and continues to include) unborn children as "'person[s]," "'regardless of viability.'" 79 So. 3d at 600 (quoting Ala. Code 1975, § 13A-6-1(a)(3)). The Mack Court noted that it would be "'incongruous' if 'a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly."" 79 So. 3d at 611 (citation omitted). Stinnett echoed that reasoning. See 232 So. 3d at 215. The defendants interpret the "incongruity" language in Mack and Stinnett to mean that the definition of "child" in the Wrongful Death of a Minor Act must precisely mirror the definition of "person" in our criminal-homicide laws. But the main opinions in Mack and Stinnett did not say that. Those opinions simply observed that it would be perverse for Alabama law to hold a defendant criminally liable for killing an unborn child while immunizing the defendant from civil liability for the same offense. The reason that such a result would be anomalous is because criminal liability is, by its nature, more severe than civil liability 19

SC-2022-0515; SC-2022-0579 -- so the set of conduct that can support a criminal prosecution is almost always narrower than the conduct that can support a civil suit. ⁹ 9 The defendants flip that reasoning on its head. Instead of concluding that civil-homicide laws should sweep at least as broadly as criminal ones (as Mack and Stinnett reasoned), the defendants insist that the civil law can never sweep more broadly than the criminal law. That type of maneuver is not only illogical, it was rejected in Stinnett itself: "[Mack's] attempt to harmonize who is a 'person' protected from homicide under both the Homicide Act and Wrongful Death Act, however, was never intended to synchronize civil and criminal liability under those acts, or the defenses to such liability. Although we noted that it would be unfair for a tortfeasor to be subject to criminal punishment, but not civil liability, for fetal homicide, it simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act. This argument, followed to its logical conclusion, would prohibit wrongfuldeath actions arising from a tortfeasor's simple negligence, something we have never held to be criminally punishable but which often forms the basis of wrongful-death actions." 232 So. 3d at 215. As this passage from Stinnett makes clear, the definition of "person" in criminal-homicide law provides a floor for the ⁹This reality also helps to illustrate why it is wrong to assume that the prospect of civil liability for the mishandling of embryos necessarily raises the spectre of criminal liability for the same conduct. 20

SC-2022-0515; SC-2022-0579 definition of personhood in wrongful-death actions, not a ceiling. So even if it is true, as the defendants argue, that individuals cannot be convicted of criminal homicide for causing the death of extrauterine embryos (a question we have no occasion to reach), it would not follow that they must also be immune from civil liability for the same conduct. 3. The Defendants' Public-Policy Concerns Cannot Override Statutory Text Finally, the defendants and their amicus devote large portions of their briefs to emphasizing undesirable public-policy outcomes that, they say, will arise if this Court does not create an exception to wrongful-death liability for extrauterine children. In particular, they assert that treating extrauterine children as "children" for purposes of wrongful-death liability will "substantially increase the cost of IVF in Alabama" and could make cryogenic preservation onerous. Medical Association of the State of Alabama amicus brief at 42; see also Appellees' brief in appeal no. SC-2022-0515 at 36 (arguing that "costs and storage issues would be prohibitive"). While we appreciate the defendants' concerns, these types of policyfocused arguments belong before the Legislature, not this Court. Judges are required to conform our rulings "to the expressions of the legislature, 21

SC-2022-0515; SC-2022-0579 to the letter of the statute," and to the Constitution, "without indulging a speculation, either upon the impolicy, or the hardship, of the law." Priestman v. United States, 4 U.S. (4 Dall.) 28, 30 n.1 in the reporter's synopsis (1800) (Chase, J., writing for the federal circuit court). Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding "unborn life" from legal protection. Art. I, § 36.06, Ala. Const. 2022.10 10The defendants also suggest that, if extrauterine children are accorded the same protections under the Wrongful Death of a Minor Act as unborn children in utero, then providers could be held liable for routine treatment of ectopic pregnancies -- that is, pregnancies in which an embryo has implanted in an organ other than the uterus, such as the fallopian tubes. The defendants' concerns are misguided. As the parties acknowledge, ectopic pregnancies almost invariably involve a fatal medical condition: if left in place, the ectopic embryo will either die from malnourishment or else grow to the point where it kills the mother -- in turn causing the embryo's own death. The parties agree that there is currently no way to treat an ectopic implantation without simultaneously 22

SC-2022-0515; SC-2022-0579 B. Negligence and Wantonness Claims The second question raised in these consolidated appeals is whether the trial court erred in dismissing the plaintiffs' common-law negligence and wantonness claims. As discussed above, both sets of plaintiffs made clear in their operative complaints that those claims were "alternative" theories pleaded only as a fallback in case this Court held that extrauterine children are not protected by the Wrongful Death of a Minor Act. Since we now hold that the Act does protect extrauterine children, the plaintiffs' alternative negligence and wantonness claims are moot, and we affirm the trial court's dismissal of those claims on that basis. C. Remaining Issues During oral argument in these cases, the defendants suggested that the plaintiffs may be either contractually or equitably barred from pursuing wrongful-death claims. In particular, the defendants pointed out that all the plaintiffs signed contracts with the Center in which their causing the death of the unborn child, no matter how desperately the surgeon and the parents wish to preserve the child's life. In light of that tragic reality, we do not see how any hypothetical plaintiffs who attempt to sue over the consensual removal of an ectopic pregnancy could establish the core elements of a wrongful-death claim, including breach of duty and causation. 23

SC-2022-0515; SC-2022-0579 embryonic children were, in many respects, treated as nonhuman property: the Fondes elected in their contract to automatically "destroy" any embryos that had remained frozen longer than five years; the LePages chose to donate similar embryos to medical researchers whose projects would "result in the destruction of the embryos"; and the Aysennes agreed to allow any "abnormal embryos" created through IVF to be experimented on for "research" purposes and then "discarded." The defendants contended at oral argument that these provisions are fundamentally incompatible with the plaintiffs' wrongful-death claims. If the defendants are correct on that point, then they may be able to invoke waiver, estoppel, or similar affirmative defenses. But those defenses have not been briefed and were not considered by the trial court, so we will not attempt to resolve them here. We are "a court of review, not a court of first instance." Henry v. White, 222 Ala. 228, 228, 131 So. 899, 899 (1931). The trial court remains free to consider these and any other outstanding issues on remand. Conclusion We reverse the trial court's dismissal of the plaintiffs' wrongful death claims in both appeal no. SC-2022-0515 and appeal no. SC-2022 24

SC-2022-0515; SC-2022-0579 0579. Because the plaintiffs' alternative negligence and wantonness claims are now moot, we affirm the trial court's dismissal of those claims on that basis. SC-2022-0515 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. SC-2022-0579 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. -- opinion. -- Wise and Bryan, JJ., concur. Parker, C.J., concurs specially, with opinion. Shaw, J., concurs specially, with opinion, which Stewart, J., joins. Mendheim, J., concurs in the result, with opinion. Sellers, J., concurs in the result in part and dissents in part, with Cook, J., dissents, with opinion. 25

SC-2022-0515; SC-2022-0579 PARKER, Chief Justice (concurring specially). A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb. Our state Constitution contains the following declaration of public policy: "This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life." Art. I, § 36.06(a), Ala. Const. 2022 (adopted Nov. 6, 2018) (sometimes referred to as "the Sanctity of Unborn Life Amendment"). As noted in the main opinion, these cases involve unborn life a fact that no party in these cases disputes. Therefore, I take this opportunity to examine the meaning of the term "sanctity of unborn life" as used in § 36.06 and to explore the legal effect of the adoption of the Sanctity of Unborn Life Amendment as a constitutional statement of public policy. I. Meaning of "Sanctity" The Alabama Constitution does not expressly define the phrase "sanctity of unborn life." But because the parties have raised § 36.06 in 26

SC-2022-0515; SC-2022-0579 their arguments, these cases call for us to interpret what this phrase means. The goal of constitutional interpretation is to discern the original public meaning, which is "the meaning the people understood a provision to have at the time they enacted it."" Barnett v. Jones, 338 So. 3d 757, 767 (Ala. 2021) (Mitchell, J., joined by Parker, C.J., concurring specially) (citation and emphasis omitted). Constitutional interpretation must start with the text, but it also must include the context of the time in which it was adopted. Id.; see also Hagan v. Commissioner's Court of Limestone Cnty., 160 Ala. 544, 554, 49 So. 417, 420 (1909) (holding that the Alabama Constitution "must be understood and enforced according to the plain, common-sense meaning of its terms"); Antonin Scalia, A Matter of Interpretation 37 (new ed. 2018) ("In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation though not an interpretation that the language will not bear."). Helpful sources in interpretation include contemporaneous dictionaries, but the analysis must also "draw from deeper wells" instead of relying "solely on dictionaries." Gulf Shores City Bd. of Educ. v. -- 27

SC-2022-0515; SC-2022-0579 Mackey, [Ms. 1210353, Dec. 22, 2022] (Ala. 2022) (Parker, C.J., concurring in part and concurring in the result). Such "deeper wells" include (1) the history of the period, (2) similar provisions in predecessor constitutions, (3) the records of the constitutional convention, inasmuch as they shed light on what the public thought, (4) the common law, (5) cases, (6) legal treatises, (7) evidence of contemporaneous general public understanding, especially as found in other state constitutions and court decisions interpreting them, (8) contemporaneous lay-audience advocacy for (or against) its adoption, and (9) any other evidence of original public meaning, which could include corpus linguistics. Gulf Shores, (Parker, C.J., concurring in part and concurring in the result in part); Young Ams. for Liberty at Univ. of Alabama at Huntsville v. St. John, [Ms. 1210309, Nov. 18, 2022] So. 3d (Ala. 2022) (Parker, C.J., concurring in part and concurring in the result); Barnett, 338 So. 3d at 766-67 (Mitchell, J., concurring specially). Section 36.06 specifically recognizes the sanctity of unborn life. Nevertheless, the phrase "sanctity of unborn life" involves the same terms and concepts as the broader and more common phrase, "sanctity of 28 So. 3d So. 3d at

SC-2022-0515; SC-2022-0579 life." Thus, the history and meaning of the phrase "sanctity of life" informs our understanding of "sanctity of unborn life" as that phrase is used in § 36.06. At the time § 36.06 was adopted, "sanctity" was defined as: "1. holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations, or rights." Merriam-Webster's Collegiate Dictionary 1100 (11th ed. 2003). Recent advocates of the sanctity of life have attempted to articulate the principle on purely secular philosophical grounds. See, e.g., John Keown, The Law and Ethics of Medicine 3 (2012); Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 157-58 (2009) (arguing that "human life is fundamentally and inherently valuable" based on the "secular moral theory" that human life is a "basic good" that "ultimately comes not from abstract logical constructs (or religious beliefs)"). Such advocates have preferred to use the term "inviolability" rather than "sanctity" to avoid what one scholar calls "distracting theological connotations." Keown, supra, at 3. But even though "inviolability" is certainly a synonym of "sanctity" in that the meaning of the two words largely overlap, the two words cannot simply be substituted for each 29

SC-2022-0515; SC-2022-0579 other because each word carries its own set of implications. When the People of Alabama adopted § 36.06, they did not use the term "inviolability," with its secular connotations, but rather they chose the term "sanctity," with all of its connotations. This kind of acceptance is not foreign to our Constitution, which in its preamble "invok[es] the favor and guidance of Almighty God," pmbl., Ala. Const. 2022, and which declares that "all men are endowed [with life] by their Creator," Art. I, § 1, Ala. Const. 2022.11 The Alabama Constitution's recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama. § 1-3-1, Ala. Code 1975 ("The common law of England ... shall ... be the rule of decisions, and shall continue in force ...."). In his Commentaries on the Laws of England, Sir William Blackstone declared that "[llife is the immediate gift of God, a right inherent by nature in every individual."12 1¹Accord the philosophy of the United States of America as expressed in the Declaration of Independence - "endowed by their Creator with certain unalienable Rights, that among these are Life ...." The Declaration of Independence para. 2 (U.S. 1776). 12Blackstone went on to state that life "begins in contemplation of law as soon as an infant is able to stir in the mother's womb." 1 William 30

SC-2022-0515; SC-2022-0579 1 William Blackstone, Commentaries on the Laws of England *125. He later described human life as being "the immediate donation of the great creator." Id. at *129. Only recently has the phrase "sanctity of life" been widely used as shorthand for the general principle that human life can never be intentionally taken without adequate justification. The phrase was first used in the modern bioethical debate by Rev. John Sutherland Bonnell as the title to his 1951 article opposing euthanasia: The Sanctity of Human Life. 8 Theology Today 194-201. Glanville Williams later employed the phrase in his groundbreaking book, The Sanctity of Life and the Criminal Law, in 1957. The common usage of this phrase has continued into the 21st century, referring to the view that all human beings bear God's image from the moment of conception. See, e.g., Blackstone, Commentaries on the Laws of England *125. Similarly, Alabama law has recognized that human life begins at conception. See Ex parte Hicks, 153 So. 3d 53, 72 (Ala. 2014); Ex parte Ankrom, 152 So. 3d 397 (Ala. 2013); Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012); Mack v. Carmack, 79 So. 3d 597 (Ala. 2011); § 26-22-2(8), Ala. Code 1975 (defining an "unborn child" as "[a]n individual organism of the species Homo sapiens from fertilization until live birth"); § 26-23A-3(10), Ala. Code 1975 (defining an "unborn child" as "[t]he offspring of any human person from conception until birth"). 31

SC-2022-0515; SC-2022-0579 Manhattan Declaration: A Call of Christian Conscience (Nov. 20, 2009) (at the time of this decision, this document could be located at: https://www.manhattandeclaration.org) (referring multiple times to the "sanctity of life" in response to abortion). 13 The phrase appeared only twice in our precedents before 2018. In 1982, Justice Faulkner used it to describe the argument that so-called "wrongful birth" actions should not be cognizable at law because the "sanctity of life" precluded them. Boone v. Mullendore, 416 So. 2d 718, 724 (Ala. 1982) (Faulkner, J., concurring specially). More recently, however, it was used in a 2014 special concurrence referring to this Court's decisions in Ex parte Ankrom, 152 So. 3d 397 (Ala. 2013), Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012), and Mack v. Carmack, 79 So. 3d 597 (Ala. 2011). Ex parte Hicks, 153 So. 3d 53, 72 (Ala. 2014) (Parker, J., concurring specially) ("This case presents an opportunity for this Court to continue a line of decisions affirming Alabama's recognition 13It is worth noting that the Manhattan Declaration was signed by "Orthodox, Catholic, and Evangelical Christians" who "joined together across historic lines of ecclesial differences" to speak together on certain issues, one of which was the sanctity of life. Id. Despite major theological disagreements, signers from all three branches of Christianity were able to agree on the sanctity of life. 32

SC-2022-0515; SC-2022-0579 of the sanctity of life from the earliest stages of development. We have done so in three recent cases [Ankrom, Hamilton, and Mack]; we do so again today." (footnote omitted)). But the principle itself -- that human life is fundamentally distinct from other forms of life and cannot be taken intentionally without justification -- has deep roots that reach back to the creation of man "in the image of God." Genesis 1:27 (King James). One 17th-century commentator has explained the significance of man's creation in God's image as follows: "[T]he chief excellence and prerogative of created man is in the image of his Creator. For while God has impressed as it were a vestige of himself upon all the rest of the creatures ….. so that from all the creatures you can gather the presence and efficiency of the Creator, or as the apostle [Paul] says, you can clearly see his eternal power and divinity, yet only man did he bless with his own image, that from it you may recognize not only what the Creator is, but also who he is, or what his qualities are. God did this: (1) so that he might as it were contemplate and delight himself in man, as in a copy of himself, or a most highly polished mirror, for which reason his delights are said to be with the children of men. (2) So that he might, as much as can be done, propagate himself as it were in man. (3) So that he would have on earth one who would know, love, and worship him and all that is his, which could not be obtained in the least apart from the image of God .... (4) So that he might have one with whom he would live most blessed for eternity, with whom he would converse as with a 33

SC-2022-0515; SC-2022-0579 friend.... Therefore, so that God could eternally dwell and abide with man, he willed him to be in some manner similar to him, to bear his image .…... "1 "Therefore, the image of God in man is nothing except a conformity of man whereby he in measure reflects the highest perfection of God." 3 Petrus Van Mastricht, Theoretical-Practical Theology 282-85 (Joel R. Beeke ed., Todd M. Rester trans., Reformation Heritage Books 2021) (1698-99).14 Van Mastricht's assessment of the significance of man's creation in the image of God accords with that of Thomas Aquinas centuries earlier. Following Augustine, Aquinas distinguished human life from other things God made, including nonhuman life, on the ground that man was made in God's image. 14Petrus Van Mastricht (1630-1706) was a Dutch Reformed theologian and professor at the University of Utrecht. He was a favorite of Jonathan Edwards, a leading minister in the First Great Awakening and later President of Princeton University. Edwards opined that, "for divinity in General, doctrine, Practice & Controversie; or as an [sic] universal system of divinity, [Van Mastrict's Theoretical-Practical Theology] is much better than ... any other Book in the world, excepting the Bible." Jonathan Edwards & Stanley T. Williams, Six Letters of Jonathan Edwards to Joseph Bellamy, 1 New Eng. Q. 226, 230 (footnotes omitted) (reprinting Edwards's letter to Bellamy dated January 15, 1747). 34

SC-2022-0515; SC-2022-0579 "As Augustine observes, man surpasses other things, not in the fact that God Himself made man, as though He did not make other things; since it is written, 'The work of Thy hands is the heaven,' and elsewhere, 'His hands laid down the dry land,' but in this, that man is made to God's image." Thomas Aquinas, Summa Theologica First Part, Treatise on Man, Question 91, Art. 4 (Fathers of the English Dominican Province trans., Benziger Bros., Inc. 1947). Further, Aquinas explained that every man has the image of God in that he "possesses a natural aptitude for understanding and loving God," which imitates God chiefly in "that God understands and loves Himself." Id., First Part, Question 93, Art. 4. Thus, man's creation in God's image directs man to his last end, which is to know and love God. Id., Second Part, Question 1, Art. 8. Man's creation in God's image is the basis of the general prohibition on the intentional taking of human life. See Genesis 9:6 (King James) ("Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man."). John Calvin, in expounding that text, explains: "For the greater confirmation of the above doctrine [of capital punishment for murder], God declares, that he is not thus solicitous respecting human life rashly, and for no purpose. Men are indeed unworthy of God's care, if respect be had only to themselves; but since they bear the image of God engraven on them, He deems himself violated in their person. Thus, 35

SC-2022-0515; SC-2022-0579 although they have nothing of their own by which they obtain the favour of God, he looks upon his own gifts in them, and is thereby excited to love and to care for them. This doctrine, however, is to be carefully observed, that no one can be injurious to his brother without wounding God himself. Were this doctrine deeply fixed in our minds, we should be much more reluctant than we are to inflict injuries. Should any one object, that this divine image has been obliterated, the solution is easy; first, there yet exists some remnant of it, so that man is possessed of no small dignity; and secondly, the Celestial Creator himself, however corrupted man may be, still keeps in view the end of his original creation; and according to his example, we ought to consider for what end he created men, and what excellence he has bestowed upon them above the rest of living beings." John Calvin, Commentaries on the First Book of Moses Called Genesis 295-96 (John King trans., Calvin Translation Society 1847) (1554) (emphasis added). Likewise, the Geneva Bible, which was the "most. popular book in colonial homes,"15 includes a footnote to Genesis 9:6 that provides: "Therefore to kill man is to deface God's image, and so injury is not only done to man, but also to God." Genesis 9:6 n.2 (Geneva Bible 1599). Finally, the doctrine of the sanctity of life is rooted in the Sixth Commandment: "You shall not murder." Exodus 20:13 (NKJV 1982). See 15 Kenneth Graham, Confrontation Stories: Raleigh on the Mayflower, 3 Ohio St. J. Crim. L. 209, 213-14 (2005). 36

SC-2022-0515; SC-2022-0579 John Eidsmoe, Those Ten Commandments: Why Won't They Just Go Away? 31 Regent U. L. Rev. 11, 15 (2018) (arguing that the Sixth Commandment is the basis for "Respect for Life" in Western law); see also Van Orden v. Perry, 545 U.S. 677, 686-90 (2005) (discussing the impact of the Ten Commandments on America generally). Aquinas taught that "it is in no way lawful to slay the innocent" because "we ought to love the nature which God has made, and which is destroyed by slaying him." Aquinas, supra, Second Part of the Second Part, Treatise on Prudence and Justice, Question 64, Art. 6. Likewise, Calvin explained the reason for the Sixth Commandment this way: "Man is both the image of God and our flesh. Wherefore, if we would not violate the image of God, we must hold the person of man sacred." 2 John Calvin, Institutes of the Christian Religion 256 (Henry Beveridge trans., Hendrickson Publishers 2008) (1559). These and many similar writings, creeds, catechisms, and teachings have informed the American public's view of life as sacred. In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human 37

SC-2022-0515; SC-2022-0579 life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory. II. Effect of Constitutional Policy Having discussed the meaning of the phrase "sanctity of unborn life," I will briefly explore the legal effect of its inclusion in the Alabama Constitution as a statement of public policy. Again, I will start with the text. Section 36.06 provides, in relevant part: "(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life. "(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." In 2018, the term "public policy" was a legal term that meant: "The collective rules, principles, or approaches to problems that affect the commonwealth or (esp.) promote the general good; specif., principles and 38

SC-2022-0515; SC-2022-0579 standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole society." Black's Law Dictionary 1426 (10th ed. 2014); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 73 (Thomson/West 2012) (noting that ordinary legal meaning governs instead of common meaning when the law is the subject). Notice that the dictionary does not just say that "public policy" is something like "whatever is in the best interests of Alabama," which really is for the Legislature and not this Court to decide. Instead, it refers to the collective rules, principles, or approaches to problems or principles and standards. Because this term refers to fixed standards and not subjective opinions of whatever serves the public good, this Court can look to this § 36.06 in appropriate cases to aid it in its decisions. When considering a question concerning "public policy," an Alabama judge is supposed to look to "the Constitution, the statutes, or definite principles of customary law which have been recognized and developed by the course of judicial decisions," such as the common law, but not "some considerations of policy which might properly have weight with the Legislature if it had occasion to deal with the question." Couch 39

SC-2022-0515; SC-2022-0579 v. Hutchison, 2 Ala. App. 444, 447, 57 So. 75, 76 (1911). Thus, Alabama precedents confirm that the Judiciary can look to the Constitution, statutes, and principles of customary law to determine what the public policy of this state is. It must not, however, usurp the role of the Legislature by attempting to guess what policy decision the Legislature might have made if it had considered other factors. That decision must be left for the Legislature itself. Now that we know what "public policy" means, we must consider what effect it has on statutory interpretation. In one of its oldest decisions considering that question, this Court held: "It is not denied that where public policy or substantial justice obviously requires it, Courts should strongly incline to such liberal construction of the statute as will effect the object." Jones v. Watkins, 1 Stew. 81, 85 (Ala. 1827). However, in more modern times, this Court has repeatedly emphasized adherence to the plain language of the statute, and I agree with this approach. See generally Jay Mitchell, Textualism in Alabama, 74 Ala. L. Rev. 1089, 1100-10 (2023). Consequently, I believe that, ordinarily, this Court may consider public policy in statutory interpretation only if (1) there is substantial doubt about the meaning of the statute and (2) the precepts 40

SC-2022-0515; SC-2022-0579 of public policy and jurisprudence to which we look are settled. Ex parte Z.W.E., 335 So. 3d 650, 660 (Ala. 2021) (Parker, C.J., concurring in the result) (citing Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258, 1260-62 (Ala. 1994); Allgood v. State, 20 Ala. App. 665, 667, 104 So. 847, 848 (1925); 82 C.J.S. Statutes § 472 (2009); 73 Am. Jur. 2d Statutes § 91 (2012)). Thus, I agree with the main opinion that, if the Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, were ambiguous, then the Sanctity of Unborn Life Amendment would resolve the matter in favor of the plaintiffs. But a special problem arises when the People of Alabama enshrine a specific statement of public policy in their Constitution. Instead of gleaning bits and pieces of the state's public policy from the Constitution, statutes, common law, and precedents, the People of Alabama explicitly told the Legislature, the Executive, and the Judiciary what they are supposed to do. Ordinarily, we resort to public-policy considerations in statutory interpretation as a last resort, so that the Judiciary does not usurp the role of the Legislature. But in this case, the People explicitly told all three branches of government what they ought to do. See The Federalist No. 78, at 525 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) 41

SC-2022-0515; SC-2022-0579 (noting that "the power of the people is superior to both" the judicial and legislative powers). Consequently, as Alexander Hamilton wrote in The Federalist No. 78, "where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former." Id. Thus, as a constitutional statement of public policy, § 36.06 circumscribes the Legislature's discretion to determine public policy with regard to unborn life. Accordingly, any legislative (or executive) act that contravenes the sanctity of unborn life is potentially subject to a constitutional challenge under the Alabama Constitution. Putting this all together, § 36.06 does much more than simply declare a moral value that the People of Alabama like. Instead, this constitutional provision tilts the scales of the law in favor of protecting unborn life. Although § 36.06 may not resolve every case involving unborn life, if reasonable minds could differ on whether a common-law rule, a statute, or even a constitutional provision protects life, § 36.06 instructs the Alabama government to construe the law in favor of protecting the unborn. Furthermore, to exclude the unborn from § 36.06's 42

SC-2022-0515; SC-2022-0579 protection, the Legislature would have to do so very clearly and for a reason that is consistent with upholding the sanctity of life. Justice Cook argues in his dissent that applying § 36.06 and the Wrongful Death of a Minor Act to frozen embryos will have disastrous consequences for the in vitro fertilization ("IVF") industry in Alabama. Although it is for the Legislature to decide how to address this issue, I note briefly that many other Westernized countries have adopted IVF practices or regulations that allow IVF to continue while drastically reducing the chances of embryos being killed, whether in the creation. process, the implantation process, the freezing process, or by willful killing when they become inconvenient. For decades, IVF has been largely unregulated in the United States, with some commentators even comparing it to the Wild West. See, e.g., Alexander N. Hecht, The Wild Wild West: Inadequate Regulation of Assisted Reproductive Technology, 1 Hous. J. Health L. & Pol'y 227, 228 (2001) ("Unfortunately, this industry remains largely unregulated. The near-absence of federal and state law combined with ineffective and unheeded industry guidelines leads to a lawless free-for-all." (footnotes omitted)); see also Myrisha S. Lewis, The American Democratic Deficit in Assisted Reproductive 43

SC-2022-0515; SC-2022-0579 Technology Innovation, 45 Am. J. L. & Med. 130, 144 & n.77 (2019) (noting that IVF in the United States is still unregulated and that commentators are still comparing it to the Wild West). In Alabama, the only statutes that mention IVF address the issue of determining parentage of children conceived through IVF, but they do not govern the practice of IVF itself. See The Alabama Uniform Parentage Act, § 26-17101 et seq., Ala. Code 1975. And the only administrative regulation of IVF in Alabama governs IVF clinics' use of radioactive materials, but not any other IVF practice. Ala. Admin. Code (State Bd. Of Health, Dep't of Pub. Health), r. 420-3-26-.02. If the Legislature agrees that it is time to regulate the IVF industry, then the good news is it need not reinvent the wheel. Other Westernized countries have given Alabama some examples to consider. For instance, in Australia and New Zealand, prevailing ethical standards dictate that physicians usually make only one embryo at a time. ¹6 On the related issue of embryo transfers, which is the process of 16Code of Practice for Assisted Reproductive Technology Units § 3.3, p. 24, Fertility Society of Australia and New Zealand, Reproductive Technology Accreditation Committee (2021) (at the time of this decision, this at: document could be located 44

SC-2022-0515; SC-2022-0579 implanting the embryos into the uterus, ¹7 in Australia and New Zealand over 90% of embryo transfers occur only one at a time. 18 Likewise, European Union ("EU") countries set a legal limit on the number of embryos transferred in a single cycle. 19 In EU countries, 58% of embryo https://www.fertility society.com.au/wp-content/uploads/20211124RTAC-ANZ-COP.pdf.). 17 According to the contract that the LePages signed, the number of embryos transferred to the mother could range from 1-5. LePage Contract at 9. It appears that the objective of transferring multiple embryos is to increase the chances of pregnancy. Id. at 8. At least two issues arise from this practice. First, it results in the mother becoming pregnant with multiple babies 30% of the time, which can cause health problems for the mother and babies. See id. at 17. Second, less than half of embryo transfers result in live births, which raises the question whether transferring multiple embryos at once risks the deaths of these little people. See Jennifer Choe & Anthony L. Shanks, In Vitro Fertilization, NIH National Library of Medicine (last updated Sep. 4, 2023), (at the time of this decision, this document could be located at: https://www.ncbi.nlm.nih.gov/books/NBK562266. 18See Choe & Shanks, supra, at n.17; Christine Wyns, Number of Frozen Treatment Cycles Continues to Rise Throughout the World, European Society of Human Reproduction and Embryology (June 30, 2021) (at the time of this decision, this document could be located at: https://www.focusonreproduction.eu/article/ESHRE-News-ESHRE-2021 -freeze-all) (reporting that "Australia/New Zealand leads the way" in the "number of single embryo transfers" in "more than 90% of cycles"). 19Regulation and Legislation in Assisted Reproduction, European Society of Human Reproduction and Embryology (Jan. 2017) (at the time of this decision, this document could be located at: https://tinyurl.com/299cvcbf). Specifically, Austria, Belgium, and Malta 45

SC-2022-0515; SC-2022-0579 transfers involve just one embryo, and 38% involve two; thus, 96% of embryo transfers in EU countries involve two or fewer transfers at one time.20 Such limitations on embryo creation and transfer necessarily reduce or eliminate the need for storing embryos for extended lengths of time. Italy went one step further, banning cryopreservation of embryos except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation.²¹ All of these measures protect the lives of the unborn and still allow couples to become parents. Therefore, although certain changes to the IVF industry's current creation and handling of embryos in Alabama will have allowed only one transfer at a time; the United Kingdom, France, and Sweden have allowed no more than two; and Germany has allowed only three, although a maximum of two is recommended. Id.; Embryo Protection Act, Chapter 524, § 6, of the Laws of Malta; Susan Mayor, UK Authority Sets Limits on Number of Embryos Transferred, 328 BMJ 65, 65 (2004). Some of these laws may have changed over time, but they illustrate that other Westernized countries have, at some point, adopted these positions. 20More Women Are Using Single Embryos During Fertility Treatment, European Society of Human Reproduction and Embryology (June 27, 2023) (at the time of this decision, this document could be located https://www.eshre.eu/ESHRE2023/Media/2023-Pressreleases/EIM). at: 2¹See Legge 19 Feb. 2004, no. 40 (art. 14, para. 3), in G.U. Feb. 24, 2004, no. 45 (It.). 46

SC-2022-0515; SC-2022-0579 result from this decision, to the extent that Justice Cook is predicting that IVF will now end in Alabama, that prediction does not seem to be well-founded. These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life than the prevailing practice of creating and transferring at once many embryos that have little chance of survival and then throwing embryos away after a while. The American states, unfortunately, have not followed the example of other Westernized countries that have regulations that achieve both the protection of life and the promotion of parenthood. Ultimately, however, it is for the Legislature to decide how the IVF industry can help parents have children. The Legislature is free to do so in any way it decides, provided that it comports with the Alabama Constitution, including the Sanctity of Unborn Life Amendment. 22 III. Conclusion In application to these cases, the contentions of the defendants and their amicus are not sustainable in light of the Sanctity of Unborn Life 22The Legislature should also take note of § 36.06 if it considers other ethical issues related to reproduction if they arise. 47

SC-2022-0515; SC-2022-0579 Amendment. The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: "Before I formed you in the womb I knew you, Before you were born I sanctified you." Jeremiah 1:5 (NKJV 1982). All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image. For these reasons, and for the reasons stated in the main opinion, I concur. 48

SC-2022-0515; SC-2022-0579 SHAW, Justice (concurring specially). I concur fully in the main opinion. I write specially to note the following. I agree with the main opinion that the meaning of the word "child" for purposes of Alabama law is well settled and includes an unborn child. Thus, for purposes of the Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975 ("the Wrongful Death Act"), the term "minor child" includes an unborn child with no distinction between in vitro or in utero. In prior cases determining whether an unborn child is a "minor child" for purposes of the Wrongful Death Act, this Court has referenced the definition of a "person" found in § 13A-6-1(3), Ala. Code 1975, which in turn applies to certain portions of the criminal code. The main opinion thoroughly explains why this criminal-law definition does not limit the determination whether an in vitro embryo is a "minor child" for purposes of a civil-law action under the Wrongful Death Act. I do not believe that any purported prior common-law rule requires a different result. "The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as 49

SC-2022-0515; SC-2022-0579 from time to time it may be altered or repealed by the Legislature." § 1-3-1, Ala. Code 1975 (emphasis added). The language of this Code section is plain: the common law does not apply when it is inconsistent with the Constitution, laws, and institutions of this state. The legislature may always alter the common law, but this Code section does not provide that the common law, if inconsistent with the above, remains in place unless altered by the legislature. As one Justice has explained: "This statute does not provide that 'the common law of England shall be the rule of decisions in Alabama unless changed by the legislature.' On the contrary, it provides that the common law of England shall be the rule of decisions in this State, so far as the common law is not inconsistent with the constitution, the laws, and the institutions of Alabama." Swartz v. United States Steel Corp., 293 Ala. 439, 446-47, 304 So. 2d 881, 887 (1974) (Faulkner, J., concurring specially). In the context of civil law, the legislature, the constitution, and this Court's decisions have collectively repealed the common law's prohibition on wrongful-death actions, § 6-5-391; protected the rights of the unborn, Ala. Const. 2022, Art. I, § 36.06(b) ("[I]t is the public policy of this state to ensure the protection of the rights of the unborn child .."); and eliminated the common law's prohibition on seeking a civil remedy for 50 ....

SC-2022-0515; SC-2022-0579 injuries done to the unborn, Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972), and Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012). If, after this, the common law does not allow wrongful-death actions for some unborn children when they are injured -- here, based on their physical location -- that rule must be consistent with the Constitution, laws, and institutions of this state. Whether such rule is in fact consistent, we can respectfully disagree. But if it is inconsistent, then it need not be first altered or repealed by the legislature. It can scarcely be argued that science is not outdistancing the law in various areas, especially in the context of human reproduction. Creating and sustaining life outside a woman's womb is nothing less than the stuff of miracles. The overriding public policy of this state recognizes and supports the sanctity of unborn life and the rights of unborn children, including the right to life, and requires the protection of the rights of the unborn child "in all manners and measures lawful and appropriate." § 36.06(b). The people of Alabama, apparently recognizing that advancements in reproductive science necessarily come with concomitant responsibilities, have bound all three branches of our state government 51

SC-2022-0515; SC-2022-0579 to this policy, and, in my view, the enactments of the Alabama Legislature are consistent with it. Stewart, J., concurs. 52

SC-2022-0515; SC-2022-0579 MENDHEIM, Justice (concurring in the result). Over the course of time, previous cases from this Court have applied the protection afforded to a "minor child" in subsection (a) of § 6-5-391, Ala. Code 1975, the Wrongful Death of a Minor Act, to human lives at earlier and earlier stages of development. In Stanford v. St. Louis-San Francisco Railway Co., 214 Ala. 611, 108 So. 566 (1926), this Court, construing a predecessor to § 6-5-391(a),23 held that a "parental injury before the birth is no basis for action in damages by the child or its personal representative." Birmingham Baptist Hosp. v. Branton, 218 Ala. 464, 467, 118 So. 741, 743 (1928) (citing Stanford). However, in Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972), "[t]he Court concluded that the term 'minor child' in the predecessor to § 6-5-391(a) [Title 7, § 119, Ala. Code 1940 (Recomp. 1958),] included an unborn child who was viable at the time of a prenatal injury, who thereafter was born alive, but who later died. 289 Ala. at 55, 265 So. 2d at 596." Mack v. Carmack, 79 So. 3d 597, 601 (Ala. 2011). The Court pushed the boundary back again in Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758 (1973), in which the Court "concluded that [a] father could maintain an action for the 2³Section 5695, Ala. Code 1923. 53

SC-2022-0515; SC-2022-0579 wrongful death of his unborn child even though the injuries that allegedly caused the death occurred before the fetus became viable." Mack, 79 So. 3d at 604. A year later, in Eich v. Town of Gulf Shores, 293 Ala. 95, 100, 300 So. 2d 354, 358 (1974), the Court held that "the parents of an eight and one-half month old stillborn fetus [were] entitled to maintain an action for the wrongful death of the child." The Court stepped back from those broader applications of protection in Gentry v. Gilmore, 613 So. 2d 1241 (Ala. 1993), and Lollar v. Tankersley, 613 So. 2d 1249 (Ala. 1993), concluding that "the Wrongful Death [of a Minor] Act did not permit recovery for the death of a fetus that occurs before the fetus attains viability." Mack, 79 So. 3d at 606. But, several years later in Mack, the Court returned to its understanding of the Wrongful Death of a Minor Act espoused in Wolfe, holding that "the Wrongful Death [of a Minor] Act permits an action for the death of a previable fetus." Mack, 79 So. 3d at 611. In Hamilton v. Scott, 97 So. 3d 728, 735 (Ala. 2012), the Court reaffirmed its conclusion from Mack, stating that "Alabama's wrongfuldeath statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability." 54

SC-2022-0515; SC-2022-0579 The foregoing history of previous decisions concerning the Wrongful Death of a Minor Act, and the fact that the pertinent language in the Act has not been amended since its enactment in 1872, shows that this Court, rather than the Legislature, has taken the lead in shaping when the protection afforded by the Act may be invoked. See Eich, 293 Ala. at 100, 300 So. 2d at 358 (describing that decision as one in which the Court was "again extending out judicial prerogative as was done in Huskey and Wolfe ."). Because of that, and because the terms "child" and "minor child" in § 6-5-391(a) are not further defined in the Wrongful Death of a Minor Act, I agree with the main opinion that the Act can be construed to include frozen embryos produced through in vitro fertilization ("IVF"). For those reasons, I concur in the result reached today that reverses the trial court's dismissal of the plaintiffs' wrongful-death claims. However, I have misgivings about the reasoning and some of the comments contained in the main opinion. The main opinion begins its analysis by observing that "[t]he parties to these cases have raised many difficult questions," but it insists throughout that applying the protection of § 6-5-391(a) to frozen embryos is not one of those difficulties because "existing black-letter law" dictates our answer to the central question. _ 55

SC-2022-0515; SC-2022-0579 So. 3d at. Indeed, the main opinion states that the text of § 6-5-391(a) is "clear" and that there is no ambiguity as to whether its protection applies to frozen embryos. So. 3d at "Too often, a court's conclusion that statutory language is 'plain' is a substitute for careful analysis. At best, such unexplained conclusions are based on a judge's gestalt sense of the best meaning of the words in question. At worst, the bare insistence that statutory language is 'plain' is cover (perhaps subconscious) for judicial policymaking." Carranza v. United States, 267 P.3d 912, 916 (Utah 2011) (opinion of Lee, J., joined by one other Justice). In my judgment, the main opinion's view that the legal conclusion is "clear" and "black-letter law" is problematic because when the Wrongful Death of a Minor Act was first enacted in 1872, and for 100 years thereafter, IVF was not even a scientific possibility. Likewise, although it may be true that "the phrase 'minor child'... in everyday parlance" has long included an "unborn child," the main opinion fails to acknowledge that, at the time the Wrongful Death of a Minor Act was 56

SC-2022-0515; SC-2022-0579 enacted and long thereafter the term "unborn child" was only -- understood to refer to a child within its mother's womb.24 So. 3d at The main opinion's contention that "[t]he central question presented in these consolidated appeals ... is whether the [Wrongful Death of a Minor] Act contains an unwritten exception to th[e] rule" that the Act "allows parents of a deceased child to recover punitive damages for their child's death" is similarly simplistic. So. 3d at defendants have never argued for an "exception" to the Wrongful Death The 24See, e.g., Wolfe, 291 Ala. at 331, 280 So. 2d at 761 (observing that "the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother" (emphasis added)); Clarke v. State, 117 Ala. 1, 8, 23 So. 671, 674 (1898) ("'When a child, having been born alive, afterwards died by reason of any potion or bruises it received in the womb, it seems always to have been the better opinion that it was murder in such as administered or gave them.'" (quoting 3 Russell on Crimes 6 (6th ed.))). Cf. Ex parte Ankrom, 152 So. 3d 397, 416 (Ala. 2013) (observing, in the course of construing the term "child" in the chemicalendangerment statute, that "[c]learly, for an unborn child, the mother's womb is an essential part of its physical circumstances"). Indeed, even with regard to IVF, a mother's womb is obviously an indispensable part of pregnancy. See Maher v. Vaughn, Silverberg & Assocs., LLP, 95 F. Supp. 3d 999, 1002 n.1 (W.D. Tex. 2015) (describing IVF as "a multi-step medical procedure," and listing the final steps of that process to be "the grown embryos are transferred into the patient's uterus" and then "the patient takes supplemental hormones for the ensuing nine to eleven days, and if an embryo implants in the lining of the patient's uterus and grows, a pregnancy can result"). 57

SC-2022-0515; SC-2022-0579 of a Minor Act. The main opinion reaches that conclusion by implication -- simply assuming that the term "minor child" includes frozen embryos -- a wholesale adoption of the plaintiffs' argument. See Appellants' brief in appeal no. SC-2022-0515, p. 19 (contending that the "[d]efendants' arguments ... create an exception to existing Alabama law so that not all embryonic lives are treated equally under the law"). The main opinion then goes on in Part A.2. of its analysis to provide reasons why this Court's many pronouncements about "congruence" between Alabama's wrongful-death statutes and its criminal-homicide statutes 25 do not dictate importing the definition of the term "person" in § 13A-6-1(a)(3), Ala. Code 1975, into § 6-5-391(a). The reasoning in that portion of the main opinion also strikes me as strained given the history behind our wrongful-death statutes. As this Court has observed numerous times, there was no right of action for wrongful death at common law. See, e.g., Ex parte Bio-Med. Applications of Alabama, Inc., 216 So. 3d 420, 422 (Ala. 2016) ("'"A wrongful death action is purely statutory; no such action existed at 25See, e.g., Mack, 79 So. 3d at 611 (observing that "this Court repeatedly has emphasized the need for congruence between the criminal law and our civil wrongful-death statutes"). 58

SC-2022-0515; SC-2022-0579 common law."'" (quoting Ex parte Hubbard Props., Inc., 205 So. 3d 1211, 1213 (Ala. 2016), quoting in turn Waters v. Hipp, 600 So. 2d 981, 982 (Ala. 1992))); Giles v. Parker, 230 Ala. 119, 121, 159 So. 826, 827 (1935) ("There is no civil liability, under the common law, as interpreted in this jurisdiction, against one who wrongfully or negligently causes the death of a human being; and hence no right of action exists under the common law therefor. The right of action is purely statutory."); Kennedy v. Davis, 171 Ala. 609, 611-12, 55 So. 104, 104 (1911) ("It has been decided and many times reaffirmed by this court that actions under [the wrongfuldeath statutes] are purely statutory. There was no such action or right of action at common law."). This was also true for the wrongful death of a minor child. See White v. Ward, 157 Ala. 345, 349, 47 So. 166, 167 (1908) ("There was no right of action at the common law for the death of the child. ... The right to recover damages for its death is therefore purely statutory."). The reasons for the common-law prohibition appear to have been based on two legal concepts. "The effect to be given the death of a person connected with a tort rests almost entirely upon statutory foundations. The common-law limitations that eventually led to legislative reform were twofold. First was the rule that personal tort 59

SC-2022-0515; SC-2022-0579 actions die with the person of either the plaintiff or the defendant. This limitation is expressed by the maxim, actio personalis moritur cum persona, which has roots deep in the early history of English law. The second limitation was that the death of a human being was not regarded as giving rise to any cause of action at common law on behalf of a living person who was injured by reason of the death. This latter is of more recent origin as a distinct proposition, although it doubtless rests in part on the same considerations that underlie the other and older maxim of actio personalis moritur cum persona." Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1044 (1965) (footnotes omitted). 26 Our wrongful-death statutes sought to remedy that erroneous legal thinking. See, e.g., Suell v. Derricott, 161 Ala. 259, 262, 49 So. 895, 897 (1909) ("Statutes like ours were clearly intended to correct what was deemed a defect of the common law, that the right of action based on a tort or injury to the person died with the person."); King v. Henkie, 80 Ala. 505, 509 (1886) ("The purpose of this, and like legislation, was clearly to correct a defect of the common law, by 26See also Malone, 17 Stan. L. Rev. at 1055 (explaining that "[t]he probable origin of the rule denying a cause of action for wrongful death was the doctrine, since discarded, that when a cause of action disclosed the commission of a felony the civil action was merged into the criminal wrong"). Restatement (Second) of Torts § 925, cmt. a. (Am. Law Inst. 1979), also provides a nice summary of the genesis of wrongful-death statutes. 60

SC-2022-0515; SC-2022-0579 a rule of which it was well settled, that a right of action based on a tort or injury to the person, died with the person injured. Under the maxim, 'Actio personalis moritur cum persona,' the personal representative of a deceased person could maintain no action for loss or damage resulting from his death."). The close connection between Alabama's wrongful-death statutes and its criminal-homicide statutes was reflected in the first wrongfuldeath statute, Act No. 62, Ala. Acts 1871-72, p. 83, which was titled "AN ACT To prevent homicides," and their shared purpose has been repeatedly noted in our cases. See, e.g., Stinnett v. Kennedy, 232 So. 3d 202, 215 (Ala. 2016) (noting "the shared purpose of the Wrongful Death Act and the Homicide Act to prevent homicide"); Ex parte Bio-Med. Applications, 216 So. 3d at 424 ("[The wrongful-death] statute authorizes suit to be brought by the personal representative for a definite legislative purpose -- to prevent homicide."" (quoting Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761 (1965))); Eich, 293 Ala. at 100, 300 So. 2d at 358 ("[T]he pervading public purpose of our wrongful death statute .... is to prevent homicide through punishment of the culpable party and the determination of damages by reference to the quality of the tortious act. 61

SC-2022-0515; SC-2022-0579 ..."); Huskey, 289 Ala. at 55, 265 So. 2d at 597 ("One of the purposes of our wrongful death statute is to prevent homicides.") Thus, it seems logical to me for there to be a correlation between the persons protected under Alabama's wrongful-death statutes and the persons protected under Alabama's criminal-homicide statutes. The main opinion is correct that the protection afforded in a civil law certainly can be broader than its corollary in criminal law, but nothing requires the civil law to be read more broadly, particularly given the absence of legislative action on this subject.27 27The main opinion asserts that Art. I, § 36.06(b) of the Alabama Constitution of 2022, in stating that "it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate," "operates in this context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that 'protect[s] ... the rights of the unborn child' equally with the rights of born children, whenever such a construction is 'lawful and appropriate."" So. 3d at The main opinion offers no authority for taking § 36.06 as a canon of legal construction, and I am not sure what an "appropriate" construction of the law means. More generally, it is unclear to me why a constitutional amendment that was adopted in 2018 is somehow so central to deciding the specific meaning of a statute that has substantively remained unchanged since 1872. In any event, "[t]o declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative."" Lindsay v. United States Sav. & Loan Ass'n, 120 Ala. 156, 168, 24 So. 171, 174 (1898) (quoting Thomas Cooley, Constitutional Limitations 114). 62

SC-2022-0515; SC-2022-0579 Moreover, I find it interesting that the Human Life Protection Act, § 26-23H-1 et seq., Ala. Code 1975, which was enacted in 2019 -- well after the Brody Act, which amended § 13A-6-1 of our criminal-homicide statutes, (and also after the Sanctity of Unborn Life Amendment, i.e., Art. I, § 36.06, Ala. Const. 2022) -- defines an "unborn child" exactly the same way the Brody Act defines a "person": "A human being, specifically including an unborn child in utero at any stage of development, regardless of viability." § 26-23H-3(7), Ala. Code 1975. In its amicus curiae brief, the Alabama Medical Association states: "[D]uring the debate on the Alabama Senate floor regarding the Human Life Protection Act, Senator Clyde Chambliss, the Bill's sponsor in the Alabama Senate, confirmed that the 'in utero' language in the Act was intentional, since it was not the intent of the Legislature through this Act to impact or prevent the destruction of fertilized in vitro eggs because in those circumstances, the woman is not pregnant. Likewise, Eric Johnston, president of the Alabama Pro-Life Coalition and one of the individuals who helped draft the Human Life Protection bill, stated in an interview with the Washington Post that the Bill would 'absolutely not' impact in vitro fertilization. Mr. Johnston gave this statement in response to the ACLU's misguided suggestion that the Act might affect in vitro fertilization." Alabama Medical Association's brief, pp. 30-31 (footnotes omitted). I fully realize that such legislative history is not persuasive for purposes of 63

SC-2022-0515; SC-2022-0579 statutory interpretation, but that history should give us pause regarding any kind of expansive interpretation of the Brody Act. I also take issue with a hypothetical employed by the main opinion to support the decision. Despite asserting at the outset of its analysis that "the Court today need not address" questions such as "the application of the 14th Amendment to the United States Constitution to [IVF] children," So. 3d at, the main opinion nonetheless proceeds to share -- and implicitly agree with -- a hypothetical posited by the plaintiffs that purports to implicate the Equal Protection Clause of the 14th Amendment. 28 The main opinion asserts that "one latent implication" of the defendants' interpretation of § 6-5-391(a) is that "even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a 'child' or 'person,' because such a child would both be (1) 'unborn' (having never been delivered from a biological womb) and (2) not 'in utero.' And if such children were not legal 28It is, perhaps, telling that the plaintiffs and the main opinion chose to insert a hypothetical federal equal-protection issue given that there is no express equal-protection clause in the Alabama Constitution, a fact this Court has noted on several occasions. See, e.g., Mobile Infirmary Ass'n v. Tyler, 981 So. 2d 1077, 1104 (Ala. 2007) (observing that "this Court has acknowledged that the Alabama Constitution contains no equal-protection clause ....'" (quoting Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801, 813 (Ala. 2003), and citing Ex parte Melof, 735 So. 2d 1172 (Ala. 1999))). 64

SC-2022-0515; SC-2022-0579 'children' or 'persons,' then their lives would be unprotected by Alabama law." So. 3d at (footnote omitted). First, in mentioning the foregoing hypothetical, the main opinion ignores the fact that it is not now or for the foreseeable future scientifically possible to develop a child in an artificial womb so that such a scenario could somehow unfold. 29 Second, the main opinion's choice to 29Perhaps in anticipation of that objection, the main opinion inserts a footnote that selectively quotes from a couple of journal articles to make it seem as if the time when artificial wombs for the earliest stages of human life are a reality is just around the corner. See So. 3d at n.2. That is simply untrue. See, e.g., Jen Christensen, FDA Advisers Discuss Future of 'Artificial Womb' for Human Infants, CNN, Sept. 19, 2023 (at the time of this decision, this article could be located at: https://www.cnn.com/2023/09/19/health/artificial-womb-human-trialfda/index.html) (reporting that "[a] handful of scientists have been experimenting with animals and artificial wombs," but that "no such device has been tested in humans," and that, in any event, "[a]n artificial womb is not designed to replace a pregnant person; it could not be used from conception until birth. Rather, it could be used to help a small number of infants born before 28 weeks of pregnancy, which is considered extreme prematurity."); Stephen Wilkinson et al., Artificial Wombs Could Someday be a Reality, The Conversation, Dec. 1, 2023 (at the time of this decision, this article could be located at: https://theconversation.com/artificial-wombs-could-someday-be-areality-heres-how-they-may-change-our-notions-of-parenthood-217490) (observing that even an artificial womb for premature babies "may be many decades away" but that "artificial womb technologies could eventually lead to 'full ectogenesis' -- growing a foetus from conception to 'birth' wholly outside the human body" (emphasis added)). 65

SC-2022-0515; SC-2022-0579 include that emotionally charged hypothetical undermines its earlier observation that "[a]ll parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life began at fertilization and ends at death."30 So. 3d at . No —. 30I note that although I certainly agree with the above-quoted statement from the main opinion, even that observation is not as simple as it appears because of the terms involved. "Notwithstanding various legislative pronouncements, from a medical and scientific perspective, fertilization is currently considered to be a chaotic and multi-step process, whereas 'conception' has variously been described as the time frame between fertilization and implantation in a woman's uterus, or the process of implantation. Precisely how long an in vitro growing cell mass is considered an embryo versus a preembryo, or whether the latter term is a legitimate distinction has long been the subject of debate among scientists as well as legal and ethical scholars." Susan L. Crockin & Gary A. Debele, Ethical Issues in Assisted Reproduction: A Primer for Family Law Attorneys, 27 J. Am. Acad. Matrim. Law. 289, 299 (2015). See also McQueen v. Gadberry, 507 S.W.3d 127, 134 n.4 (Mo. Ct. App. 2016) (observing that "'"Pre-embryo" is a medically accurate term for a zygote or fertilized egg that has not been implanted in a uterus. It refers to the approximately 14-day period of development from fertilization to the time when the embryo implants in the uterine wall and the "primitive streak," the precursor to the nervous system, appears. An embryo proper develops only after implantation. The term "frozen embryos" is a term of art denoting cryogenically preserved pre-embryos."" (quoting Elizabeth A. Trainor, Annotation, Right of Husband, Wife, or Other Party to Custody of Frozen 66

SC-2022-0515; SC-2022-0579 one not Mobile Infirmary Association, the Center for Reproductive - Medicine, the amicus Alabama Medical Association, my dissenting colleagues, or anyone who disagrees with today's Court's decision - is suggesting that such a child, if he or she could be produced, should not be protected by Alabama law. Ultimately, as I stated at the outset, we must be guided by the language provided in the Wrongful Death of a Minor Act and the manner in which our cases have interpreted it. Under those guideposts, today's result is correct. However, the decision undoubtedly will come as a shock in some quarters of the State. I urge the Legislature to provide more leadership in this area of the law given the numerous policy issues and serious ethical concerns at stake,31 and the fact that there is little -- Embryo, Pre-embryo, or Pre-zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R. 5th 253, 260 (2001))). 31See, e.g., Yehezkel Margalit, From (Moral) Status (of the Frozen Embryo) to (Relational) Contract and Back Again to (Relational Moral) Status, 20 Ind. Health L. Rev. 257, 257 (2023) ("The existing hundreds of thousands of unused frozen embryos, coupled with the skyrocketing rate of divorce, raise numerous moral, legal, social, and religious dilemmas. Among the most daunting problems are the moral and legal status of the frozen embryo; what should its fate be in the event of conflicts between the progenitors?; and whether contractual regulation of frozen embryos is valid and enforceable."); Caroline A. Harman, Defining the Third Way -- the Special-Respect Legal Status of Frozen Embryos, 26 Geo. Mason L. 67

SC-2022-0515; SC-2022-0579 Rev. 515, 516 (2018) (observing that, "[u]nfortunately, American courts have not kept pace with the advancements happening in the field of ART [assisted reproductive technology]" and that, "[m]ost often, frozen embryo cases come to the courts during divorce suits between progenitors. Due to the personal nature of ART, however, progenitors are less likely to seek legal recourse when frozen embryos are negligently destroyed and the harm caused by the clinic is shielded from the public eye. While suits regarding negligent destruction of frozen embryos and suits when progenitors stop paying storage fees are less common, they are not without their legal and societal implications. When couples do turn to the judicial system, the courts are often ill-equipped to answer such legal questions in a manner that also considers the unique nature of ART and the accompanying emotions of the progenitors." (footnotes omitted)); Shirley Darby Howell, The Frozen Embryo: Scholarly Theories, Case Law, and Proposed State Regulation, 14 DePaul J. Health Care L. 407, 407 (2013) (explaining that "[u]sing IVF to assist individuals and couples having trouble procreating would be seemingly positive, but the procedure has resulted in serious unintended consequences that continue to trouble theologians, physicians, and the courts. The ongoing legal debate focuses on two principal questions: (1) whether a frozen embryo should be regarded as a person, property, or something else and, (2) how to best resolve disputes between gamete donors concerning disposition of surplus frozen embryos."); Maggie Davis, Indefinite Freeze?: The Obligations A Cryopreservation Bank Has to Abandoned Frozen Embryos in the Wake of the Maryland Stem Cell Research Act of 2006, 15 J. Health Care L. & Pol'y 379, 396-97 (2012) (asserting that "[c]ryopreservation is a scarce good, and is incredibly costly. For instance, one California cryopreservation bank charged clients $375 a year, prepaid, to store embryos. After many years, this can become incredibly burdensome on the progenitors. When the fees become too burdensome, there is a higher chance for couples to stop paying their fees, and eventually fall out of contact with the clinic. As embryos are abandoned, and storage fees are not paid, cryopreservation banks will likely need to raise the costs of the fees to other customers in order to compensate." (footnotes omitted)); Beth E. Roxland & Arthur Caplan, Should Unclaimed Frozen Embryos Be Considered Abandoned Property and Donated to Stem Cell Research?, 21 B.U. J. Sci. & Tech. L. 108, 109 (2015) 68

SC-2022-0515; SC-2022-0579 regulation of the entire IVF industry. 32 Ultimately, it is the Legislature that possesses the constitutional authority and responsibility to be the final arbiter concerning whether a frozen embryo is protected by the laws of this State. Without such guidance, I fear that there could be unfortunate consequences stemming from today's decision that no one intends. ("'As science races ahead, it leaves in its trail mind-numbing ethical and legal questions.'" (quoting Kass v. Kass, 91 N.Y. 2d 554, 562, 696 N.E.2d 174, 178, 673 N.Y.S. 2d 350, 354 (1998) (citing John A. Robertson, Children of Choice: Freedom and The New Reproductive Technologies (1994))). 32See, e.g., Valerie A. Mock, Getting the Cold Shoulder: Determining the Legal Status of Abandoned IVF Embryos and the Subsequent Unfair Obligations of IVF Clinics in North Carolina, 52 Wake Forest L. Rev. 241, 257 (2017) (observing that "IVF centers are largely a self-regulated industry, meaning that for better or for worse, they receive little governmental oversight. There are no federal regulations for the disposition of abandoned embryos, and very few states have addressed it legislatively." (footnotes omitted)); Roxland & Caplan, 21 B.U. J. Sci. & Tech. L. at 115 (noting that "[n]o federal statutory law or regulation generally governs the classification of frozen embryos. In fact, only three states have enacted legislation concerning the disposition of frozen embryos more generally: Louisiana, Florida, and New Hampshire." (footnotes omitted)). 69

SC-2022-0515; SC-2022-0579 SELLERS, Justice (concurring in the result in part and dissenting in part). These cases are not about when life begins, nuances of statutory construction, or the definition of "minor child" or "person." And, contrary to the main opinion, there is no black-letter law in Alabama, or any other state, to help us.33 Regrettably, these cases use the specter of destroying human life to craft a narrative involving the protection of unborn children to cynically inflame worries about the sanctity of life under Alabama law. In reality, these cases concern nothing more than an attempt to design a method of obtaining punitive damages under Alabama's Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, by concluding that frozen embryos, negligently destroyed, are entitled to the same protections as a fetus inside a mother's womb. Parsing the Brody Act, Act No. 2006-419, Ala. Acts 2006, codified as § 13A-6-1, Ala. Code 1975 (which is a part of Alabama's criminal-homicide statutes), and employing any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of "person," see § 13A-6 33Otherwise, the duration of oral argument would not have approached two hours. 70

SC-2022-0515; SC-2022-0579 1(a)(3), much less the definition of "minor child," see § 6-5-391(a). It is clear from the four corners of the Brody Act that the legislative intent was to protect unborn life, regardless of viability, from violence perpetrated against the mother. Previously, to impose criminal sanctions. for the murder of an unborn child was impossible. See Act No. 77-607, § 2001(2), Ala. Acts 1977 (amended in 2006 by the Brody Act) (" 'Person,' when referring to the victim of a criminal homicide, means a human being who had been born and was alive at the time of the homicidal act." (emphasis added)). The Brody Act eliminated not only this born-alive requirement but also any viability threshold to create the bright-line rule that, if a woman is pregnant, an embryo in utero receives all the protections that a viable life would be afforded under the laws of Alabama. See § 13A-6-1(a)(3). Thus, and in light of Justice Houston's special writings in Gentry v. Gilmore, 613 So. 2d 1241, 1245 (Ala. 1993) (Houston, J., concurring in the result), and Lollar v. Tankersley, 613 So. 2d 1249, 1253 (Ala. 1993) (Houston, J., concurring in the result), which "emphasized the need for congruence between the criminal law and our civil wrongful-death statutes," Mack v. Carmack, 79 So. 3d 597, 611 (Ala. 71

SC-2022-0515; SC-2022-0579 2011), this Court held "that the Wrongful Death [of a Minor] Act permits an action for the death of a previable fetus." Id. But interpreting the Brody Act as we are asked to do here is a judgment call. In short, we must determine whether to constrain ourselves to the clear intent of the Act or whether to inform our interpretation using extraneous means to reach a result clearly contrary to anything the Act ever intended. The majority's conclusion that an action may be maintained under the Wrongful Death of a Minor Act for the negligent destruction of an in vitro embryo -- an atextual conclusion purportedly reached by utilizing the Brody Act's definition of "person" to inform the Wrongful Death of a Minor Act's definition of "minor child" -- is clearly contrary to the intent of the legislature. To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain. Furthermore, I am puzzled by the majority and concurring opinions' references to Article I, § 36.06, of the Alabama Constitution of 2022. We have repeatedly stated that "[a] court has a duty to avoid constitutional questions unless essential to the proper disposition of the case."" Lowe v. 72

SC-2022-0515; SC-2022-0579 Fulford, 442 So. 2d 29, 33 (Ala. 1983) (quoting trial court's order citing other cases). The majority believes the word "child" is unambiguous, yet it opines in dicta, without any citation to authority, that if the word "child" were ambiguous, § 36.06 acts "as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that 'protect[s] ... the rights of the unborn child' equally with the rights of born children." So. 3d at. Respectfully, § 36.06 neither operates in such a fashion nor commands this Court to override legislative acts it believes "contraven[e] the sanctity of unborn life." So. 3d at (Parker, C.J., concurring specially). Section 36.06 states, in relevant part, "that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." § 36.06(b). Because all policy determinations are vested in our legislature, this includes those determinations regarding the sanctity of unborn life. Therefore, § 36.06 merely reaffirms that "the judicial branch may not exercise the legislative or executive power." Art. III, § 42(c), Ala. Const. 2022. Accordingly, this Court has no authority to determine whether legislation concerning or relating to unborn life defies § 36.06; 73

SC-2022-0515; SC-2022-0579 that authority lies only with the People of this State, acting through their elected representatives. Any public-policy ramifications of any decision in these cases are outside the purview of this Court, and they are more appropriately reserved for the legislature. Should the legislature wish to include in vitro embryos in the definition of "minor child," it may easily do so. Absent any specific legislative directive, however, we should not read more into a legislative act than the legislature did so itself. Thus, as to the majority opinion's conclusion regarding the Wrongful Death of a Minor Act, I respectfully dissent. Insofar as the majority opinion affirms the trial court's dismissal of the plaintiffs' negligence and wantonness claims, I concur in the result. I must necessarily disagree with the majority opinion's mootness rationale on account of my dissent as to the majority opinion's analysis and conclusion regarding the Wrongful Death of a Minor Act. 74

SC-2022-0515; SC-2022-0579 COOK, Justice (dissenting). I respectfully dissent. The first question that this Court is being asked to decide in these appeals is whether Alabama's Wrongful Death of a Minor Act ("the Wrongful Death Act"), see § 6-5-391, Ala. Code 1975, as passed by our Legislature, provides a civil cause of action for money damages for the loss of frozen embryos. This is a question of the meaning of the words in that Act, as it was originally passed and understood in 1872. My sympathy with the plaintiffs and my deeply held personal views on the sanctity of life cannot change the meaning of words enacted by our elected Legislature in 1872. Even when the facts of a case concern profoundly difficult moral questions, our Court must stay within the bounds of our judicial role. Limiting our role to interpreting the existing words in a statute and letting the Legislature decide changes is one of the basic teachings of the United States Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). In that case, the United States Supreme Court overruled Roe v. Wade, 410 U.S. 113 (1973), and returned the hotly disputed issue of abortion to the citizens 75

SC-2022-0515; SC-2022-0579 in each state, so that their elected representatives could pass laws addressing that issue. In concluding that the authority to regulate abortion "must be returned to the people and their elected representatives," the Supreme Court in Dobbs explained that "respect for a legislature's judgment applies even when the laws at issue concern matters of great social significance and moral substance." 597 U.S. at 292 and 302. The Supreme Court further explained that it "'has neither the authority nor the expertise to adjudicate those disputes'" and that "'courts do not substitute their social and economic beliefs for the judgment of legislative bodies."" Id. at 289 (quoting Ferguson v. Skrupa, 372 U.S. 726, 729-30 (1963)). Over the years, our Court has repeatedly said the same thing. Specifically, our Court has made clear that we are "not at liberty to rewrite statutes or to substitute [our] judgment for that of the Legislature." Ex parte Carlton, 867 So. 2d 332, 338 (Ala. 2003). Further, our Court has repeatedly made clear that "public-policy arguments should be directed to the legislature, not to this Court." Ex parte Ankrom, 152 So. 3d 397, 420 (Ala. 2013) (emphasis added). Statutes Do Not Evolve. The Legislature Amends Them. 76

SC-2022-0515; SC-2022-0579 On rare occasions, our Court's decisions have included language that departed from the rule that the Legislature and not this Court -- updates statutes. For example, in Eich v. Town of Gulf Shores, 293 Ala. 95, 99, 300 So. 2d 354, 357 (1974), this Court wrote that "it is often. necessary to breathe life into existing laws less they become stale and shelfworn" "in order that existing law may become useful law to promote the ends of justice." This is both dicta and fundamentally wrong. It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it. It is also not our role to consider whether a law has become "stale" or "shelfworn."34 This is the same error made by those commentators who advocate for a living constitution and argue that the words in our Constitution should evolve over time.35 -- 34See Craft v. McCoy, 312 So. 3d 32, 37 (Ala. 2020) (recognizing that "*"*"when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute"""") (citations omitted)); and Ex parte Coleman, 145 So. 3d 751, 758 (Ala. 2013) (recognizing that " '[t]he judiciary will not add that which the Legislature chose to omit'" (quoting Ex parte Jackson, 614 So. 2d 405, 407 (Ala. 1993))). 35See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 403-10 (Thomson/West 2012); Joe Carter, Justice Scalia Explains Why the "Living Constitution" is a Threat to America, Action Inst. (May 14, 2018) (at the time of this decision, this 77

SC-2022-0515; SC-2022-0579 Instead, it is the role of the Legislature to determine whether a law is outdated (for instance, because of new technology) and, thus, requires updating. If our Court does "breathe life" into a law by expanding its reach, we short-circuit the legislative process and violate the Alabama Constitution's separation-of-powers clause. That clause provides that, "[t]o the end that the government of the State of Alabama may be a government of laws and not of individuals, ... the judicial branch may not exercise the legislative or executive power." Ala. Const. 2022, Art. III, § 42(c). 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." DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 276 (Ala. 1998). Separation of powers is part of our Constitution for a reason -- there are real advantages to the Legislature -- and not this Court -- making such decisions. See Jay Mitchell, Textualism in Alabama, 74 Ala. L. Rev. 1089, 1097 (2023) (explaining that "[t]here is a reason that the people elected legislators to formulate public policy, and there is every reason to article could be located at: https://rlo.acton.org/archives/101616-justice scalia-explains-why-the-living-constitution-is-a-threat-to-america.html). 78

SC-2022-0515; SC-2022-0579 think they are better at it and better situated to be accountable for their choices than judges are" (emphasis in original)). In fact, the drafters of the Alabama Constitution felt the separation-of-powers principle was so important that they made it an express clause in our Constitution, whereas the drafters of the Constitution of the United States did not.36 The facts of these cases certainly illustrate why the Legislature is best suited to weigh competing interests and write comprehensive legislation, after full input from the public and thorough study. Why I Dissent I dissent because the main opinion violates this fundamental principle that is, that the legislative branch and not the judicial branch updates laws by expanding the meaning of the Wrongful Death Act beyond what it meant in 1872 without an amendment by the Legislature. I also dissent because I believe the main opinion overrules our recent Wrongful Death Act caselaw that requires "congruence" between the definition of "person" in Alabama's criminal-homicide statutes and the -- 36Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So. 2d 204, 212 (Ala. 2005) (explaining that "[t]he Constitution of Alabama expressly adopts the doctrine of separation of powers that is only implicit in the Constitution of the United States"). 79

SC-2022-0515; SC-2022-0579 definition of "minor child" in the Wrongful Death Act. Both the original public meaning and this recent caselaw indicate the same result here -- that the Wrongful Death Act does not address frozen embryos. Moreover, there are other significant reasons to be concerned about the main opinion's holding. No court -- anywhere in the country -- has reached the conclusion the main opinion reaches. And, the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama. The plaintiffs themselves explained in oral argument: "But today we're here advocating on behalf of plaintiffs who are supporters of in vitro fertilization. It worked for them. They have two beautiful children in each family because of in vitro fertilization. The notion that they would do anything to hinder or impair the right or access to IVF therapy is flat wrong. That's not why we're here." Supreme Court of Alabama, Supreme Court O/A Mobile Alabama, YouTube 19:14 (Sep. 21, 2023) (at the time of this decision, this oralargument session could be located at: https://www.youtube.com/watch?v =L08KGhNSDME) (emphasis added). It is not my role to judge whether ending this medical procedure is good or bad -- but it doubtless will have a huge impact on many Alabamians. And it underscores the need to have 80

SC-2022-0515; SC-2022-0579 the Legislature not this Court address these issues through the legislative process. In addition to the reasons stated above, I also dissent because the main opinion does not reach the second question presented in these appeals that is, whether the trial court prematurely dismissed the plaintiffs' negligence and wantonness claims at the pleading stage. Those claims present an alternative pathway to protect frozen embryos, a pathway without many of the problems presented by the Wrongful Death Act claims. There is no dispute in these cases about when life begins. All parties agree on that issue. I specifically asked the defendants at oral argument: "[s]o, is it your position that ... these were lives?" And they responded: "It is, Justice Cook. I think that the ... embryo is a life, but the issue today is whether an embryo is a child protected under the [Wrongful Death Act]." Supreme Court of Alabama, Supreme Court O/A Mobile Alabama, YouTube 1:17:49 (Sep. 21, 2023). The defendants nevertheless present a "catch-22" argument in support of the dismissal of those claims. On the one hand, they allege that the plaintiffs' wrongful-death claims were properly dismissed 81

SC-2022-0515; SC-2022-0579 because their frozen embryos are not "minor children" under the Wrongful Death Act. On the other hand, they allege that the trial court properly dismissed the plaintiffs' negligence and wantonness claims because their frozen embryos each represent "a life." I am deeply troubled by this argument and the consequences that could result from adopting this position. However, as explained below, there is no need for this Court to reach this "catch-22" argument at this time because it is simply too soon to dismiss those claims under Alabama's liberal pleading rules. It is for this reason that I would reverse the trial court's dismissal of the plaintiffs' negligence and wantonness claims. I. The Plaintiffs' Wrongful-Death Claims A. The Wrongful Death Act -- A Purely Statutory Claim This Court has previously observed that wrongful-death actions "are purely statutory," meaning "[t]here was no such action or right of action at common law." Kennedy v. Davis, 171 Ala. 609, 611-12, 55 So. 104, 104 (1911) (emphasis added). The Alabama Legislature, therefore, has the responsibility of declaring who is covered by this private right of action. 82

SC-2022-0515; SC-2022-0579 The Legislature originally passed the Wrongful Death Act in 1872, and the Act was later codified in the Code of Alabama in 1876. See Ala. Code 1876, § 2899. The Act states, in relevant part, that "[w]hen_the death of a minor child is caused by the wrongful act, omission, or negligence of any person, ... the father, or the mother, ... of the minor may commence an action." § 6-5-391(a) (emphasis added). Unfortunately, the Wrongful Death Act does not define the term "minor child." Although the Act was last amended in 1995, see Ala. Acts 1995, Act No. 95-774, § 1, the phrase "[w]hen the death of a minor child is caused by the wrongful act ... of any person" has remained unchanged from the Act's initial inception in 1872, and no change has ever been made to it bearing on the meaning of the term "minor child." B. We Should Use the Original Public Meaning of the Wrongful Death Act's Words With no definition of "minor child" having been provided by the Legislature, this Court must decide how to interpret the meaning of that term as used in the Wrongful Death Act. I believe in originalism, which means that we should apply the original meaning of the words as those words were used in the Act when it was passed in 1872. In other words, I apply the "original public meaning" of the words. As Justice Mitchell 83

SC-2022-0515; SC-2022-0579 has observed, "the meaning of a law is its original public meaning, not its modern meaning." Mitchell, supra, at 1092 (some emphasis added; some emphasis in original); see also Barnett v. Jones, 338 So. 3d 757, 768 (Ala. 2021) (Mitchell, J., concurring specially); Ex parte Pinkard, 373 So. 3d 192, 207 (Ala. 2022) (Mitchell, J., concurring specially); Gulf Shores City Bd. of Educ. v. Mackey, [Ms. 1210353, Dec. 22, 2022] So. 3d (Ala. 2022) (Mitchell, J., concurring in part and concurring in the result).³7 37 One of the leading scholars on this approach has undoubtedly been Justice Antonin Scalia. In Reading Law: The Interpretation of Legal Texts 33 (Thomson/West 2012), Justice Scalia and Bryan A. Garner explain that when a court is required to interpret the words in a statute, it should consider "how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued." (Emphasis added).38 See also id. at 78-92 (referring to this as the "fixed -> 37See also Mitchell, supra, at 1103 (explaining that "[w]hen judges say words should be given their 'ordinary' meaning, we do not mean that each word in a text always takes its literal meaning or its most statistically common meaning. We mean instead that words must be given the meaning that an ordinary reasonable person would ascribe to them after reading them in context."). 38 As Justice Mitchell notes in Textualism in Alabama, supra, "[o]ur court, along with the U.S. Supreme Court and courts within the United 84

SC-2022-0515; SC-2022-0579 meaning canon" and as the "original public meaning" of a statute); New Prime Inc. v. Oliveira, 586 U.S. 139 S. Ct. 532, 539 (2019) (noting that "'[i]t's a "fundamental canon of statutory construction" that words generally should be "interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute." Wisconsin Central Ltd. v. United States, 585 U.S. 138 S. Ct. 2067, 2074, 201 L. Ed. 2d 490 (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979)).").39 Because "[w]ords change meaning over time, and often in unpredictable ways," Justice Scalia and Garner explain that it is important to give words in statutes the meaning they had when they were adopted to avoid changing what the law is. Scalia & Garner, supra, at 78 (emphasis added). "By anchoring the meaning of a text to the objective indication of its words at a fixed point in time, ... a judges' -2 States Court of Appeals for the Eleventh Circuit, has cited Reading Law numerous times." 74 Ala. L. Rev. at 1107. 39 Consistent with applying original public meaning, this Court has explained that "[t]he court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time, the meaning of the law being the law itself."" Maxwell v. State, 89 Ala. 150, 161, 7 So. 824, 827 (1890) (citation omitted). 85

SC-2022-0515; SC-2022-0579 abilities to 'update' laws as they go along" is constrained. Mitchell, supra, at 1096. Again, because this Court is in the judicial branch, its role is limited, and applying the "original public meaning" of the words in a statute helps this Court to stay within its constitutional role, which is a fundamental part of democracy. See Scalia & Garner, supra, at 82-83 (recognizing that "[o]riginalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing written law, like adopting written law in the first place, is the function of the first two branches of government elected legislators and ... elected executive officials and their delegates."). After all, if judges could freely invest old statutory terms with new meanings, this Court would risk amending legislation outside the "single, finely wrought and exhaustively considered, procedure" the Constitution commands. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1953). 1. The Original Public Meaning of "Minor Child" Can Be Found in the Common Law -- "The authorities ….. are unanimous." -- The common law answers the question whether the term "minor child" as used in the Wrongful Death Act was broad enough in 1872 to 86

SC-2022-0515; SC-2022-0579 reach a frozen embryo today. In Alabama, it is a well-settled principle of law that the common law governs unless expressly changed by the statutes passed by our Legislature. Our Court has repeatedly held that "''[a]ll statutes are construed in reference to the principles of the common law; and it is not to be presumed that there is an intention to modify, or to abrogate it, further than may be expressed, or than the case may absolutely require."" State v. Grant, [Ms. 1210198, Sept. 9, 2022] So. (Ala. 2022) (quoting Beale v. Posey, 72 Ala. 323, 330 (1882)) (emphasis added); see also Ex parte Christopher, 145 So. 3d 60, 65 (Ala. 2013) (observing that "statutes [in derogation or modification of the common law] are presumed not to alter the common law in any way not expressly declared"" (quoting Arnold v. State, 353 So. 2d 524, 526 (Ala. 1977) (emphasis added)).40 3d 4ºSee also Holmes v. Sanders, 729 So. 2d 314, 316 (Ala. 1999) ("[T]he common law is the base upon which all of the laws of this State have been constructed, and when our courts are called upon to construe a statute, ... they must read the statute in light of the common law."") (citation omitted); Ivey v. Wiggins, 276 Ala. 106, 108, 159 So. 2d 618, 619 (1964) (recognizing that "[llegislative enactments in modification of the common law should be clear and such as to prevent reasonable doubt as to the legislative intent and of the limits of such change"). Further "statutes being in derogation of the common law, must be strictly construed, and cannot be extended in their operation and effect by 87

SC-2022-0515; SC-2022-0579 The Alabama Code also expressly mandates that the common law remains in effect absent actual changes by the Legislature. See § 1-3-1, Ala. Code 1975 ("The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature." (emphasis added)). Similarly, Justice Mitchell has previously recognized that "[a] statute that uses a common-law term, without defining it, adopts its common-law meaning." Mitchell, supra, at 1130 (emphasis added). Other authorities agree that we must "presume the legislature retained the common-law meaning." 3A Norman J. Singer and J.D. Shambie Singer, Statutes and Statutory Construction § 69:9 (7th ed. 2010) (quoted approvingly by Mitchell, supra, at 1130). 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 for the purpose of civil liability or criminal doubtful implication." Mobile Battle House, Inc. v. Wolf, 271 Ala. 632, 639, 126 So. 2d 486, 493 (1961) (emphasis added). 88

SC-2022-0515; SC-2022-0579 homicide liability. In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a "minor child" who could be killed. For example, in 1926, this Court, for the first time, addressed the issue whether the Wrongful Death Act permitted claims for the death of an unborn fetus who died from prenatal injuries. Citing cases from other jurisdictions, this Court in Stanford v. St. Louis-San Francisco Railway Co., 214 Ala. 611, 612, 108 So. 566, 566 (1926), held that the Wrongful Death Act did not permit recovery for injuries during pregnancy that resulted in the death of the fetus. In support of that holding, our Court wrote: ""The doctrine of the civil law and the ecclesiastical and admiralty courts ….. that an unborn child may be regarded as in esse is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth. If the action can be maintained, it necessarily follows that an infant may maintain an action against its own mother for injuries occasioned by the negligence of the mother while pregnant with it. We are of opinion that the action will not lie."" 214 Ala. at 612, 108 So. at 567 (quoting Allaire v. St. Luke's Hosp., 184 89

SC-2022-0515; SC-2022-0579 Ill. 359, 368, 56 N.E. 638, 640 (1900)) (emphasis added). We emphasized: "The authorities, however, are unanimous in holding that a prenatal injury affords no basis for an action in damages, in favor either of the child or its personal representative." 214 Ala. at 612, 108 So. at 566 (emphasis added). For many years afterwards, this Court maintained this position. See, e.g., Birmingham Baptist Hosp. v. Branton, 218 Ala. 464, 467, 118 So. 741, 743 (1928) (recognizing that "[t]his court has established a general line of demarcation between the civil rights of the mother and child to be born. It is concurrent with separate existence of the mother and child by the birth; and parental injury before the birth is no basis for action in damages by the child or its personal representative."); Snow v. Allen, 227 Ala. 615, 619, 151 So. 468, 471 (1933) (recognizing that "[s]o long as the child is within the mother's womb, it is a part of the mother, and for any injury to it, while yet unborn, damages would be recoverable by the mother in a proper case"). Thus, the common law in Alabama before 1872, and for 100 years afterward, was clear: ""The doctrine of the civil law that an unborn child may be regarded as in esse ... is a mere legal fiction, which ….. has 90

SC-2022-0515; SC-2022-0579 not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth.'" Stanford, 214 Ala. at 612, 108 So. at 566 (citation omitted; emphasis added).41 2. The Main Opinion's Responses to the Common-Law are Mistaken The main opinion provides four responses to the position that the common law did not consider an unborn infant to be a minor child capable of being killed for the purpose of civil liability or criminal-homicide liability: (1) that the common-law homicide rule was merely an "evidentiary rule," (2) that a dictionary from the 1800s includes a definition of "child" that did not provide an "exception" for unborn infants, (3) that William Blackstone (among other things) "grouped" the "rights" of unborn children with the "Rights of Persons," and (4) that the defendants' argument seeks an "exception" to the definition of "minor child" for frozen embryos. Each of these arguments is mistaken. I will address them one at a time. First, the main opinion notes that "[i]t is true, as Justice Cook 4¹Again, we must follow the original public meaning of the statute, even if we might believe that the meaning is ill-informed, unwise, or outdated. If a meaning of a statute is, in fact, ill-informed, unwise, or outdated, the Legislature -- not this Court -- must amend or update that statute. 91

SC-2022-0515; SC-2022-0579 emphasizes, that the common law spared defendants from criminalhomicide liability for killing an unborn child unless the prosecution could prove that the child had been 'born alive' before dying from its injuries." So. 3d at n.6. Nevertheless, the main opinion goes on to assert that the common-law "born-alive" rule was "an evidentiary rule rather than ... a substantive limitation on personhood." Id. 42 The main opinion cites no Alabama authority in support of its "evidentiary rule" argument. The only authority cited is a law-review article from 2009, which in turn relies on a second law-review article from 42The main opinion also asserts that we can ignore the common-law criminal-law rule that it admits existed, because the criminal law has always been "out of step with the treatment of prenatal life in other areas of law."" So. 3d at n.6 (quoting Dobbs, 597 U.S. at 247). It does not cite any Alabama law for this assertion. Regardless, this assertion is directly contrary to our Court's repeated holdings that there should be "congruence" between the Wrongful Death Act and Alabama's criminal-homicide statutes (as discussed more fully below). See Mack, 79 So. 3d at 611. Even if it were not, this argument is nevertheless irrelevant given that the common-law rule in the civil-law context in Alabama was the same rule as the criminal-law rule. See, e.g., Stanford, 214 Ala. at 612, 108 So. at 566. Further, Dobbs did not say that the criminal law could be ignored in determining the meaning of the common law. Instead, the main opinion's quote from Dobbs merely concerned a debate over the "basis" for a different common-law rule (the quickening rule) -- an issue that the Dobbs Court did not even decide. 597 U.S. at 247. 92

SC-2022-0515; SC-2022-0579 1987.43 See id. (citing Joanne Pedone, Filling the Void: Model Legislation for Fetal Homicide Crimes, 43 Colum. J. L. & Soc. Probs. 77, 82 (2009), citing in turn Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 586 (1987)). Regardless, the main opinion is mistaken. Our caselaw makes clear that this common law was a substantive rule of law -- both in the criminal context and in the civil context. Stanford, 214 Ala. at 612, 108 So. at 567 (concluding that a wrongful-death action for an unborn child "will not lie"" (citation omitted; emphasis added)); Clarke v. State, 117 Ala. 1, 8, 23 So. 671, 674 (1898) (recognizing that "[a]n infant in its mother's womb, not being in rerum natura, is not considered as a person who can 43 Although the main opinion cites to Dobbs in an apparent effort to support these two law-review articles, Dobbs did not hold, or even suggest, that this common-law rule was merely an evidentiary rule and not a substantive rule of law. Instead, as noted above, the page in Dobbs cited by the main opinion contains a discussion of a debate over the possible "basis" for the "quickening rule." Dobbs, 597 U.S. at 247. Moreover, Dobbs concluded that even the debate over the "basis" of the "quickening rule" was "of little importance." Id. In the present appeals, the "basis" for the common-law rule that an unborn infant could not be killed is not at issue. Even if we were to assume that the "basis" for this common-law rule was unwise, it was still the rule in effect at the time the Wrongful Death Act was passed and therefore is part of the original public meaning of that Act unless the Legislature amends it. 93

SC-2022-0515; SC-2022-0579 be killed within the description of murder ....'" (quoting 3 Russell on Crimes (6th ed.)) (emphasis added)). The main opinion does not cite or distinguish either of these Alabama cases. Nor would it matter if it was an "evidentiary rule" because even an evidentiary rule would still indicate the original public meaning of the statute (that is, what a "reasonable reader" at the time of passage understood the law to be). The main opinion also cites no caselaw holding that an "evidentiary rule" (even if one applied here) should be ignored in determining the original public meaning. Further, even if the common law were a mere evidentiary rule (and it was not), it would be an irrebuttable evidentiary rule as clearly shown by the cases and language cited above. Second, the main opinion argues that the "leading dictionary of that time defined the word 'child' as 'the immediate progeny of parents' and indicated that this term encompassed children in the womb." So. 3d (citing Noah Webster et al., An American Dictionary of the English Language 198 (1864) (quoting the first listed definition). However, this Court cannot ascertain the meaning of disputed terms merely by "plugging a string of words into a dictionary and running with the first results that come up." Mitchell, supra, at 1091. Instead, "words at 94

SC-2022-0515; SC-2022-0579 are given meaning by their context." Scalia & Garner, supra, at 56. Here, the context indicates that the main opinion is mistaken. The cited dictionary does not "indicate[] that this term encompassed children in the womb." Instead, it indicates the opposite. The same first definition of "child" also states: "The term is applied to infants from their birth; but the time when they cease ordinarily to be so called, is not defined by custom." Webster, supra, at 198. (emphasis added).44 "From their birth" 44The main opinion argues in a footnote that the language in the first definition of "child" merely "contrasts newborns with older children in order to make the point that there is no clear-cut time at which a young person transitions from childhood to adulthood." So. 3d at n.5. But this is not the plain meaning of the language in the definition of "child": "[t]he term is applied to infants from their birth." Webster, supra, at 198. And, our Court is not in a position to speculate about what the subjective intent of the author of an 1864 dictionary might have been -- that is, whether this plain language was included merely "in order to make the point." See Scalia & Garner, supra, at 30 ("Subjective intent is beside the point. ... Objective meaning is what we are after …..."). In that same footnote (and in a parenthetical in the text of the main opinion), the main opinion also quotes the last line of the definition in this dictionary (line 41 - under the seventh definition). So. 3d at n.5. However, this quotation is simply an illustration. Webster, supra, at 198 ("To be with child, to be pregnant"). Again, this illustration does not contradict the common law or Alabama law of the time. In fact, to the extent that this illustration could mean anything in these appeals, it would tend to show that a frozen embryo outside of a mother would not have been part of the public meaning of "minor child" in 1872 because there would be no mother who was "pregnant." 95

SC-2022-0515; SC-2022-0579 means after they were born. Further, the language quoted in the text of the main opinion is general in nature ("immediate progeny of parents") and thus fails to answer the question whether a frozen embryo is a "minor child" as that term was understood in 1872. This general definition also does not contradict the common law in any way. As explained above, the common law (and Alabama law) is definite, and it does indicate that, in 1872, the public meaning of "minor child" as used in the Wrongful Death Act did not include an unborn infant (or a frozen embryo). In the same vein, the main opinion cites Blackstone's Commentaries and argues (1) that it "expressly grouped the rights of unborn children" with the "Rights of Persons,"" (2) "consistently described unborn children as 'infant[s]' or 'child[ren],"" and (3) spoke of "such children as sharing in the same right to life that is 'inherent by nature in every individual."" So. 3d at (quoting 1 William Finally, the main opinion argues that the definition of a different word "childbearing" -- "drives home the point" when it "describes 'childbearing' as the act of 'bearing children' in the womb." Id. However, the definition is far less clear. Instead it states that "childbearing" is "[t]he act of producing or bringing forth children; parturition." 96

SC-2022-0515; SC-2022-0579 Blackstone's Commentaries on the Laws of England *125-26). The main of these principles in Blackstone's opinion's characterization Commentaries is mistaken. First, none of this contradicts the Alabama caselaw cited above. In fact, the snippets quoted by the main opinion do not state, one way or the other, whether an unborn infant could be killed under the common law (whether for civil or criminal purposes). Second, how a list of rights were "grouped" seems insignificant at best, and the main opinion provides no explanation for why this is even relevant, much less important. Third, although the main opinion's assertion that children share the "same right to life" is certainly true, it does not help explain why a frozen embryo is a "minor child" as that term was understood in 1872 when the Act was adopted. Finally, the main opinion incorrectly characterizes the defendants' argument as seeking an exception to the definition of "minor child." The very beginning of the main opinion argues: "This Court has long held that unborn children are 'children' for purposes of Alabama's Wrongful Death of a Minor Act The central question presented ... is whether the Act contains an unwritten exception to that rule for extrauterine children that is, unborn children who are located outside of a biological uterus at the time they are 97

SC-2022-0515; SC-2022-0579 killed." So. 3d at (emphasis added). In making this assertion, the main opinion assumes the answer to the relevant question -- i.e., whether a "frozen embryo" is a "minor child" as that term was understood in 1872 in the Wrongful Death Act -- by immediately labeling frozen embryos as "extrauterine children" and deeming them "unborn children." In other words, the main opinion assumes that a frozen embryo is a "child" without further context or analysis and does so in the second sentence of the opinion. The main opinion then asks an irrelevant question -- "whether the Act contains an unwritten exception" for "extrauterine children." So. 3d at (emphasis added). No party has suggested or requested an "exception" to anything in these appeals. Assuming the answer to the question and then framing this debate as whether an "exception" exists is semantics. It does not provide an answer to the relevant question and does nothing to respond to the common-law rule. In short, the common-law rule as stated by our Court in Stanford is the original public meaning of the term "minor child" as it was understood in 1872 in the Wrongful Death Act. Stanford, 214 Ala. at 612, 98

SC-2022-0515; SC-2022-0579 108 So. at 567 (1926) (concluding "that an unborn child may be regarded as in esse is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth'" (citation omitted)). And, our Court has made clear that "': 'statutes [in derogation or modification of the common law] are presumed not to alter the common law in any way not expressly declared.'" Ex parte Christopher, 145 So. 3d at 65 (citation omitted). Thus, any update to the Wrongful Death Act must be done by the Legislature and not this Court. C. Prior Caselaw Interpreting and Applying the Wrongful Death Act Based on Congruence with Alabama's Criminal-Homicide Statutes and Action by the Legislature What about this Court's more recent caselaw interpreting the Wrongful Death Act? Although the members of this Court believe in originalism and textualism, we should not ignore our prior caselaw unless we are willing to overrule it. After the cases cited above, the next time we tackled these issues was in 1972 when we decided Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972). In Huskey, for the first time, 100 years after the passage of the Wrongful Death Act, we allowed an action for unborn infant who was viable at the time of a prenatal injury 99

SC-2022-0515; SC-2022-0579 and thereafter was born alive, but who later died, thus partially overruling Stanford. Why did we partially overrule Stanford in Huskey? One key reason was our Court's recognition that the purpose and reach of the Wrongful Death Act was tied to the State's criminal-homicide statutes: "By the criminal law, it is a great crime to kill the child after it is able to stir in the mother's womb, by an injury inflicted upon the person of the mother, and it may be murder if the child is born alive and dies of prenatal injuries. Clarke v. State, 117 Ala. 1, 23 So. 671 (1897). One of the purposes of our wrongful death statute is to prevent homicides. Bell v. Riley Bus Lines, [257 Ala. 120, 57 So. 2d 612 (1952)]. If we continued to follow Stanford, which followed then existing precedent, a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly. This is incongruous." Huskey, 289 Ala. at 55, 265 So. 2d at 597-98 (second and third emphasis added). Then, in 1993, our Court made clear that it would not expand recovery under the Wrongful Death Act beyond that which was expressly provided in the Act absent a clear direction from the Legislature. First, in Lollar v. Tankersley, 613 So. 2d 1249, 1252-53 (Ala. 1993), we explained that, "[w]ithout a clearer expression of legislative intent," we would decline to hold that the Wrongful Death Act "creates a cause of 100

SC-2022-0515; SC-2022-0579 action for the wrongful death of a fetus that has never attained viability" and noted that "it appears that no court in the United States has, without a clear legislative directive, recognized a cause of action for the wrongful death of a fetus that has never attained a state of development exceeding that attained in this case." Then, in Gentry v. Gilmore, 613 So. 2d 1241, 1244 (Ala. 1993), we repeated this sentiment and explained: "We follow the reasoning of a majority of jurisdictions and hold that our statute provides no cause of action for the wrongful death of a nonviable fetus. In so holding, we point out that, with the exception of Georgia, the Gentrys' position [that a wrongful-death action exists for the death of a nonviable fetus] apparently is not the law in any American jurisdiction where there is no clear legislative direction to include a nonviable fetus within the class of those covered by the wrongful death acts. See Miccolis v. AMICA Mutual Insurance Co., 587 A.2d 67, 71 (R.I. 1991); Gary A. Meadows, Comment, Wrongful Death and the Lost Society of the Unborn, 13 J. Legal Med. 99, 107 (1992); and Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411, 453-54, § 5[a] (1978 & Supp. 1992)." (Emphasis added.) Using language similar to Huskey, Justice Houston wrote specially in both cases and argued for an approach that he believed would be "consistent with the criminal law." Noting the definition of "person" in Alabama's criminal-homicide statutes at that time, Justice Houston 101

SC-2022-0515; SC-2022-0579 wrote: "There should not be different standards in wrongful death and homicide statutes, given that the avowed public purpose of the wrongful death statute is to prevent homicide and to punish the culpable party and not to compensate for the loss." Gentry, 613 So. 2d at 1245 (Houston, J., concurring in the result); Lollar, 613 So. 2d at 1253 (Houston, J., concurring in the result). 1. The Brody Act and This Court's Reiteration of Congruence Between Alabama's Criminal-Homicide Statutes and the Wrongful Death Act In 2006, nearly 13 years after Justice Houston's observations in Lollar and Gentry, the Alabama Legislature enacted the "Brody Act," Act No. 2006-419, Ala. Acts 2006, codified as § 13A-6-1, Ala. Code 1975. The Brody Act amended the definition of "person" in Alabama's criminalhomicide statutes to expand who could be deemed a victim of a criminal homicide to include an "unborn child in utero." See § 13A-6-1(a)(3), Ala. Code 1975. Before that amendment, the definition of "person" in Alabama's criminal-homicide statutes was: "[A] human being who had been born and was alive at the time of the homicidal act." See Act No. 607, § 2001(2), Ala. Acts 1977, formerly codified as § 13A-6 102

SC-2022-0515; SC-2022-0579 1(2) (emphasis added). After the passage of the Brody Act, however, the definition of "person" in the criminal-homicide statutes became: "[A] human being, including an unborn child in utero at any stage of development, regardless of viability." § 13A-6-1(a) (3) (emphasis added). Following the passage of the Brody Act, our Court decided Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), in which we held that a plaintiff could bring a claim under the Wrongful Death Act for the death of a previable in utero fetus. Our holding in Mack rested, in large part, on the Legislature's adoption of the Brody Act. Specifically, we noted that the Brody Act "constitute [d] clear legislative intent to protect even nonviable fetuses from homicidal acts." 79 So. 3d at 610. We also explained that the public purpose of our wrongful-death statutes, including the Wrongful Death Act, is to prevent homicide and that "this Court repeatedly has emphasized the need for congruence between the criminal law and our civil wrongful-death statutes." 79 So. 3d at 611 (emphasis added). Thus, we held, after considering "the legislature's amendment of Alabama's homicide statute to include protection for 'an unborn child in utero at any stage of development, regardless of viability,' § 13A-61(a)(3)," that the Wrongful Death Act should likewise permit an action 103

SC-2022-0515; SC-2022-0579 for the death of the plaintiff's previable, in utero fetus given that the purpose of the Act is to prevent the death of a child. Id. In so holding, we quoted with approval Justice Houston's special concurrences from Gentry and Lollar regarding the need for congruence between Alabama's wrongful-death statutes and its criminal-homicide statutes given that the purpose of those statutes is to prevent homicide and "'to punish the culpable party and not to compensate for the loss.'" Id. at 610 (quoting Gentry, 613 So. 2d at 1245 (Houston, J., concurring in the result); and Lollar, 613 So. 2d at 1253 (Houston, J., concurring in the result)). Five years after this Court's decision in Mack, our Court reached an identical result in Stinnett v. Kennedy, 232 So. 3d 202 (Ala. 2016). In that case, we explained that "borrowing the definition of 'person' from the criminal Homicide Act to inform [us] as to who is protected under the civil Wrongful Death Act made sense." 232 So. 3d at 215 (emphasis added). In the present appeals, the parties have neither asserted that our holdings or reasoning in either Mack or Stinnett are wrong, nor have they asked us to overrule those decisions. See Clay Kilgore Constr., Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala. 2006) (noting absence of a specific request to overrule existing authority and stating that, 104

SC-2022-0515; SC-2022-0579 "[e]ven if we would be amenable to such a request, we are not inclined to abandon precedent without a specific invitation to do so"). 45 I therefore see no reason to abandon this precedent in deciding the question at issue in the present appeals. 2. The Main Opinion is Overruling Mack and Stinnett The main opinion alleges that this Court's decisions in Mack and Stinnett do not "mean that the definition of 'child' in the Wrongful Death of a Minor Act must precisely mirror the definition of 'person' in our criminal-homicide laws." Specifically, the main opinion alleges that, because criminal liability is "more severe than civil liability," the "set of conduct that can support a criminal prosecution is almost always narrower than the conduct that can support a civil suit." According to the main opinion, an argument to the contrary is "not only illogical, it was rejected in Stinnett itself." So. Based on the foregoing, the main opinion concludes that the definition of "person" in Alabama's criminal-homicide law provides a "floor" for the definition of personhood in wrongful-death actions, not a 3d at So. 3d at So. 3d at 45See also Alabama Dep't of Revenue v. Greenetrack, Inc., 369 So. 3d 640 (Ala. 2022) (declining to overrule precedent when the parties did not expressly ask this Court to do so). 105

SC-2022-0515; SC-2022-0579 "ceiling." So. 3d at Contrary to the main opinion's assertion, our Court in Stinnett expressly stated that it was "borrowing the definition of 'person' from the criminal Homicide Act to inform [us] as to who is protected under the civil Wrongful Death Act." 232 So. 3d at 215 (emphasis added). By using the phrase "borrowing the definition," it is difficult to imagine how much clearer our Court could have been that the definitions of the terms "person" and "minor child" were to be interpreted the same. Thus, the main opinion is simply incorrect when it states that Stinnett "did not say that." So. 3d at Additionally, in reaching the above conclusion, the main opinion mistakes statutory definitions for liability standards. It is certainly true that criminal law includes additional defenses (and sometimes includes additional elements) and thus contains a "narrower" standard of liability than civil law, but it is also true that definitions of terms can be the same in the criminal-homicide statutes and the civil wrongful-death statutes. Stinnett illustrates this. In that case, the plaintiff sued a physician for the wrongful death of her unborn fetus pursuant to the Wrongful Death Act. The defendant, emphasizing the congruence discussion in 106

SC-2022-0515; SC-2022-0579 Mack, argued that an exception to liability for medical personnel in the criminal-homicide statutes also prevented malpractice liability under the Wrongful Death Act. See Stinnett, 232 So. 3d at 214-15 (citing § 13A-61(b), Ala. Code 1975, which provides a defense to homicide for a physician providing medical care for a "[m]istake, or unintentional error"). Not surprisingly, our Court disagreed. Relying on Mack, we explained that the liability standard differed between the criminalhomicide statutes and the civil Wrongful Death Act. Therefore, this Court held, the defendant could be liable for medical malpractice even if she were a physician and committed an "unintentional error." We wrote: "[Mack's] attempt to harmonize who is a 'person' protected from homicide under both the Homicide Act and Wrongful Death Act, however, was never intended to synchronize civil and criminal liability under those acts, or the defenses to such liability." 232 So. 3d at 215 (emphasis added); (quoting the same language). Thus, contrary to the main opinion's position, our Court in Stinnett made clear that our holding on liability standards had no impact on our decision to "borrow[]" the definition of "person" (that is, the victim) in Alabama's criminal-homicide statutes to determine who a "minor child" was under the Wrongful Death Act. 107 So. 3d at

SC-2022-0515; SC-2022-0579 Moreover, the main opinion's reasoning that the definition of "person" in Alabama's criminal-homicide statutes provides a "floor" for the definition of "child" in wrongful-death actions, not a "ceiling," is also illogical given the changes brought about by the Brody Act. 46 The Legislature made an intentional decision to extend the criminal-homicide statutes beyond the common law when it passed the Brody Act. In sharp contrast, the Legislature has never extended the relevant portion of the Wrongful Death Act, despite the passage of 150 years. Yet, the main opinion now decides that the definition in this unamended civil statute goes further than the definition in the criminal-homicide statutes that the Legislature did extend. In sum, the main opinion overrules Mack and Stinnett 47 sub silentio 46When construing a criminal statute in a civil action, the Rule of Lenity should be applied because it would be "inconceivable" to give "the language defining the violation ... one meaning (a narrow one) for the penal sanctions and a different meaning (a more expansive one) for the private compensatory action." Scalia & Garner, supra, at 297. 47The year after this Court decided Mack, supra, it was once again called upon to address the reach of the Wrongful Death Act in Hamilton v. Scott, 97 So. 3d 728 (Ala. 2021). The main opinion quotes Hamilton for the proposition that a wrongful-death-act claim can be brought for "'any unborn child."" So. 3d at (quoting Hamilton, 97 So. 3d at 735). This quote is correct, but it does not answer the relevant question in these that is, whether a frozen embryo is a "minor child" as that term 108 cases --

SC-2022-0515; SC-2022-0579 by decoupling the definitions in the criminal-homicide statutes and the Wrongful Death Act, by removing the reasoning of those decisions, and by overlooking our other caselaw requiring congruence between the definition of "person" in Alabama's criminal-homicide statutes and the definition of "minor child" in the Wrongful Death Act.48 was used in 1872 in the Wrongful Death Act. Further, Hamilton did not change the holding in Mack and instead expressly stated that "Mack is now controlling precedent .... Therefore, we will apply Mack in deciding this appeal." Hamilton, 97 So. 3d at 735. Moreover, to the extent that there is any confusion about whether the homicide statutes' definition of "person" has been "borrow[ed]" (and thus is both a "floor" and a "ceiling" for the scope of the term "minor child" in the Wrongful Death Act), Stinnett governs because it was decided after Hamilton. 48The main opinion argues that the "bulk of [my] dissent is animated by the view that Mack was wrongfully decided and that, contrary to its holding, unborn children are not 'children' under the Act after all." So. 3d at n.4. This is inaccurate. The opinions in these cases are settled law, and I have not questioned them or their reasoning. Moreover, as explained above, Mack arose after the Legislature made an express change to the criminal-homicide statutes that broadened the definition of "person" beyond the common law for the first time. So that there is no doubt, the law in Alabama is clear (since the Legislature amended the criminal-homicide statutes) that killing an "unborn child in utero" is both a homicide and actionable under the Wrongful Death Act -- and I agree with this law. Here, we are called upon to decide a question that this Court has not decided before -- whether a frozen embryo is a "minor child" under the Wrongful Death Act. There are two possible approaches to this: (1) follow the holding of Mack and Stinnett (that is, use the homicide definition of "person" adopted by the Legislature in the criminal-homicide 109

SC-2022-0515; SC-2022-0579 3. The Plaintiffs' Arguments Regarding the Brody Act are Mistaken Because I would follow our prior precedent that there must be "congruence" between the definition of "person" in Alabama's criminalhomicide statutes and the definition of "minor child" in the Wrongful Death Act, I must consider whether a frozen embryo is within the definition of "person" in the criminal-homicide statutes, as amended by the Brody Act-- a question that is hotly debated in the briefs. Because the main opinion holds that the definition in the criminal-homicide statutes is merely a "floor," it does not engage on this question. As noted above, after the passage of the Brody Act, the definition of "person" in the criminal-homicide statutes became: "[A] human being, including an unborn child in utero at any stage of development, regardless of viability." § 13A-6-1(a)(3) (emphasis added). The primary argument between the parties is over the phrase "including an unborn child in utero." On the one hand, the defendants argue strongly that the statutes) or (2) independently determine the meaning of that term by following the original public meaning of that term. As explained above, the result is the same under either approach. The main opinion must choose one way or the other. Either Mack and Stinnett were correct and the main opinion is bound by the criminal-homicide statutes' definition for "person," or the main opinion is bound by the original public meaning of the term "minor child." 110

SC-2022-0515; SC-2022-0579 phrase "including an unborn child in utero" indicates that the Legislature, by adding this phrase to the definition, implied that "human being" would not otherwise include an unborn child in utero (and therefore would not include a frozen embryo, which was not added). On the other hand, the plaintiffs argue just as strongly that this phrase is not intended to be a limiting phrase but, instead, merely provides one example of a "human being," thus implying that "human being" is broad enough to include a frozen embryo. First, this Court has recognized that both the preamble and the title of an act may be used to resolve any ambiguities in the text. See Newton v. City of Tuscaloosa, 251 Ala. 209, 218, 36 So. 2d 487, 494 (1948) (recognizing that "both the preamble and the title of an act may be looked to in order to remove ambiguities and uncertainty in the enacting clause"); City of Bessemer v. McClain, 957 So. 2d 1061, 1075 (Ala. 2006) (noting that our Court "can also look at the title or preamble of the act"); Scalia & Garner, supra, at 33 (recognizing that the textual purpose of an act is "vital" to its context). The Brody Act provides that it "shall be known as the 'Brody Act,' in memory of the unborn son of Brandy Parker, whose death occurred 111

SC-2022-0515; SC-2022-0579 when she was eight and one-half months pregnant." Act No. 2006-419, § 4. Likewise, the title to the Brody Act provides that it is "[a]n act, [t]o amend [Alabama's homicide code], to define person to include an unborn child [and] to name the bill 'Brody Act' in memory of the unborn son of Brandy Parker, whose death occurred when she was eight and one-half months pregnant." Based on the contents of the Brody Act and its title, it seems quite clear to me that the death of Brody Parker an unborn, in utero child -- spurred the Legislature to change the definition of a "person" in the criminal-homicide statutes from the common-law meaning to a meaning that now allows a defendant to be charged with murder when he or she causes the death of a "human being" "in utero." In other words, the textual purpose was to expand the definition of "person" to cover victims like Brody Parker who died in utero. Our caselaw makes clear that we must presume that the terms of a statute mean what they were designed to effect, and we are not allowed to enlarge them by construction. See Holmes v. Sanders, 729 So. 3d 314, 316 (Ala. 1999) (explaining that this Court presumes "that the legislature did not intend to make any alteration in the law beyond what it declares either expressly or by 112 --

SC-2022-0515; SC-2022-0579 unmistakable implication"" (quoting Beasley v. MacDonald Eng'g Co., 287 Ala. 189, 197, 249 So. 2d 844, 851 (1971))).49 Second, the plaintiffs' proposed statutory construction of the criminal-homicide statutes is contrary to the common law of homicide and is not supported by the history of Alabama's criminal-homicide statutes. In 1852, the Alabama Legislature passed the first criminalhomicide statute, which made clear that only a "human being" could be the victim of a murder. That statute read, in relevant part, that "every homicide perpetrated ... to effect the death of any human being" constituted murder. § 3080, Ala. Code 1852 (emphasis added). Although every Code section addressing criminal homicide enacted between 1852 and 1977 used the term "human being" to describe the victim of murder and manslaughter, the Legislature never defined the term. After the passage of the first homicide statute, this Court held that killing an unborn infant in utero did not constitute a murder, citing a common-law treatise. For example, in Clarke v. State, 117 Ala. at 8, 23 4⁹See also Cook v. Meyer Bros., 73 Ala. 580, 583 (1883) (noting the "presumption ... that the language of the statute import[s] the alteration or change it was designed to effect, and [its] operation will not be enlarged by construction ...."). 113

SC-2022-0515; SC-2022-0579 So. at 674, this Court wrote that "[a]n infant in its mother's womb, not being in rerum natura, is not considered as a person who can be killed, within the description of murder ...." (Quoting 3 Russell on Crimes (6th ed.) (emphasis added).) 50 Then, in 1977, the Legislature repealed the previous criminalhomicide statutes and replaced them with the new criminal-homicide statutes. In doing so, the Legislature expressly adopted the common-law rule and defined the term "person" as "a human being who had been born and was alive at the time of the homicidal act." Former § 13A-6-1(2). That definition remained unchanged until the adoption of the Brody Act, at which point the Legislature, as explained above, went beyond the common-law rule to expressly declare that a victim of a homicide or assault (that is, a "human being") included an "unborn child in utero." 50 The authority cited in Clarke was a leading criminal-law treatise originally written about the common law by an English Justice named William Oldnall Russell. Although this Court cited the sixth edition (published in 1896), the earlier editions contained the same quote, dating back to at least 1826. See, e.g., William Oldnall Russell, A Treatise on Crimes and Indictable Misdemeanors at 424 (2d ed. 1826). In other words, this Court in Clarke correctly stated and followed the content of the common law. 114

SC-2022-0515; SC-2022-0579 In short, the common law was clear that an unborn infant was "not considered as a person who can be killed."" Clarke, 117 Ala. at 8, 23 So. at 674 (citation omitted). The statutory law did not change this until the passage of the Brody Act. Thus, the common-law definition remains, except to the extent that it has been expressly changed by the Brody Act to add an "unborn child in utero" to the definition of "person" in Alabama's criminal-homicide statutes. To conclude otherwise would be inconsistent with our caselaw cited above holding that "'[a]ll statutes are construed in reference to the principles of the common law; and it is not to be presumed that there is an intention to modify, or to abrogate it, further than may be expressed, or than the case may absolutely require."" Grant, (citing and quoting Beale v. Posey, 72 Ala. at 330).51 So. 3d at 511 note briefly that, were we to adopt the plaintiffs' proposed construction of the definition of "person" in the criminal-homicide statutes, we risk criminalizing the IVF process. Under the Rule of Lenity, "'criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants."" Ex parte Bertram, 884 So. 2d 889, 891 (Ala. 2003) (quoting Clements v. State, 370 So. 2d 723, 725 (Ala. 1979), overruled on other grounds by Beck v. State, 396 So. 2d 645 (Ala. 1980)). Thus, if there were any reasonable doubts as to the statutory construction of the criminal-homicide statutes, this Court would apply the Rule of Lenity and strictly construe the definition of "person" in favor of those persons sought to be subjected to their 115

SC-2022-0515; SC-2022-0579 For all of these reasons, it seems clear to me that a frozen embryo does not fit within the statutory definition of "person" as that term is used in Alabama's criminal-homicide statutes and thus cannot be a "minor child" under the Wrongful Death Act. D. Article I, § 36.06, of the Alabama Constitution of 2022 Has No Impact on the Terms in the Wrongful Death Act from 1872 The main opinion also argues that, even if the word "child" in the Wrongful Death Act were ambiguous, Article I, § 36.06, of the Alabama Constitution of 2022 "operates in this context as a constitutionally imposed canon of construction," which "require[s] courts to resolve the ambiguity in favor of protecting unborn life." section "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." § 36.06(b) (emphasis added). The Chief Justice also devotes his special concurrence to this argument. So. 3d at That The first problem with this argument is that there is nothing in the 116 operation -- for instance, in a future case, perhaps fertility-clinic workers. This is yet another reason why the plaintiffs' interpretation of the criminal-homicide statutes is mistaken.

SC-2022-0515; SC-2022-0579 text of § 36.06 about resolving ambiguities in statutes (assuming there was one here), and the main opinion cites no authority supporting such a rule of construction. Even if we were to assume such a rule of construction, there is nothing in § 36.06 that tells us how to best protect frozen embryos. Specifically, § 36.06 does not indicate (1) whether we should protect frozen embryos by updating the words in the Wrongful Death Act or (2) whether we should protect frozen embryos via the ordinary common-law route (that is, by allowing the claims of negligence and wantonness to move forward in these actions). Why is one option more constitutionally mandated than another -- especially when one option requires us to discount the original public meaning of the terms in the Wrongful Death Act as it was passed by the Legislature in 1872? The second problem with this position is timing. The Wrongful Death Act was passed in 1872, whereas § 36.06 was passed in 2018. Section 36.06 cannot retroactively change the meaning of words passed in 1872. The Legislature in 1872 had no idea about a constitutional amendment that would be passed 150 years later. If the Legislature wanted to change the words in the statute, they should have changed the 117

SC-2022-0515; SC-2022-0579 words in the statute.52 Although I agree with much of what Chief Justice Parker so eloquently states in his special concurrence regarding the "sanctity of So. 3d at (Parker, C.J., concurring specially), I do not agree with his discussion of the "Effect of Constitutional Policy." (Parker, C.J., concurring specially). In particular, 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" in § 36.06. So. 3d at (Parker, C.J., concurring specially). The question for these appeals is whether Alabama law provides a private cause of action, for money damages, for the loss of a frozen embryo. There is no language in this constitutional amendment mentioning private causes of action, or money damages, or frozen embryos, or IVF. Compare Dobbs, 597 U.S. at unborn life," So. 3d at 52It is of course true, as the main opinion notes, that the Constitution is the "supreme law of the state"" and that all statues "must yield"" to it. So. 3d at n.7. However, the main opinion fails to explain why the original public meaning of the term "minor child" in the Wrongful Death Act violates -- that is, does not "yield" to § 36.06. Although the main opinion contends that the definition of "child" that it applies here is "in keeping with the definition that was established by this Court's precedents at the time § 36.06 was adopted," id. (emphasis omitted), I fail to see how that could be true given that, as explained in detail above, the main opinion is overruling Mack and Stinnett. 118

SC-2022-0515; SC-2022-0579 237 (noting that a right to abortion "is not mentioned anywhere in the Constitution"). The third difficulty with this argument is that it does not rebut any of my conclusions discussed above, including those premised on the common law, the criminal-homicide statutes, and our prior caselaw. It is for all of these reasons that I find this argument unpersuasive. E. The Suggestion that the Common Law Has Been "Collectively Repealed" Is Mistaken Justice Shaw argues that it is "well settled" that the meaning of the term "minor child" "includes an unborn child with no distinction (Shaw, J., concurring specially) (emphasis added). Other than simply referring to the main opinion, Justice Shaw cites no legal authority that this lack of any distinction is "well settled." Regardless, he is mistaken for all the reasons explained above. As to his assertion that "the legislature, the constitution, and this Court's decisions have collectively repealed the common law's prohibition on ... seeking a civil remedy for injuries done to the unborn," So. 3d (Shaw, J., concurring specially), Justice Shaw provides no analysis on this point either and, instead, simply provides a string between in vitro or in utero." at So. 3d at 119

SC-2022-0515; SC-2022-0579 citation to (1) the Wrongful Death Act itself, (2) § 36.06(b) (analyzed in full earlier), and (3) two cases that support my position (as explained Regardless, it is well settled that the Legislature -- earlier). Id. at not this Court -- "repeal[s]" statutes. Further, the question in these appeals is not whether there is a common-law "prohibition on seeking a civil remedy for injuries done to the unborn" (as Justice Shaw frames the issue). (Shaw, J., concurring specially) (emphasis added). Instead, the question is whether the common law can help this Court determine if a frozen embryo is within the meaning of the term "minor child" in the Wrongful Death Act. Justice Shaw appears to contend that the common law has a narrower role in providing meaning for words used in Alabama statutes than I have explained above. Relying on a special concurrence to a 1974 plurality opinion from this Court and § 1-3-1, Ala. Code 1975, he contends that Alabama statutory law "'does not provide"" that the "'"common law of England shall be the rule of decisions in Alabama unless changed by the legislature.' (Shaw, J., concurring specially) (quoting Swartz v. United States Steel Corp., 293 Ala. 439, 446, 304 So. So. 3d at So. 3d at 120

SC-2022-0515; SC-2022-0579 2d 881, 887 (1974) (Faulkner, J., concurring specially)) (emphasis added). He argues "[o]n the contrary,"" Alabama law merely provides that the common law applies so long as it is "[n]ot_inconsistent with the constitution, the laws, and the institutions of Alabama."" Id. (some emphasis omitted); id. at ("But if it is inconsistent, then it need not be first altered or repealed by the legislature."). I fail to see a distinction between these standards and what our Court has repeatedly (and very recently) broadly stated: "'All statutes are construed in reference to the principles of the common law,'" Grant, and "statutes [in derogation or modification of the common law] are presumed not to alter the common law in any way not expressly declared,'" Ex parte Christopher, 145 So. 3d at 65 (citation omitted; emphasis added); see also 3A Norman J. Singer and J.D. Shambie Singer, Statutes and Statutory Construction § 69:9 (explaining that we "presume the legislature retained the common-law meaning"). Justice Shaw does not cite or distinguish any of this authority. More fundamentally, Justice Shaw does not explain how using the common-law understanding of the meaning of the term "child" to determine whether a frozen embryo is a "minor child" under the Wrongful So. 3d at 121

SC-2022-0515; SC-2022-0579 Death Act is "inconsistent" with "the constitution, the laws, and the (Shaw, J., concurring specially) (emphasis and citation omitted). As explained thoroughly above, any changes that have been made in this area of the law have been made incrementally by the Legislature over time and have only gone so far as to encompass unborn, in utero children, as reflected in the holding and language discussed above in Stinnett, 232 So. 3d at 215 (which postdates the two cases cited by Justice Shaw).53 Thus, unless and until the Legislature updates Alabama law in such a way that demonstrates that a "frozen embryo" is a "minor child," this Court remains bound by the original public meaning of that term as it was understood in 1872 when the Legislature passed the Wrongful institutions of Alabama."" Death Act. So. 3d at F. Not a Single State Agrees with the Main Opinion Not a single state has held that a wrongful-death action (or a 53Like the main opinion, Justice Shaw argues that the definition of "person" in the criminal-homicide statutes "does not limit the determination whether an in vitro embryo is a 'minor child' for purposes of a civil-law action under the Wrongful Death Act." So. 3d at (Shaw, J., concurring specially). But, he cites no legal authority other than referring to the main opinion, and therefore he is mistaken for all the reasons explained above. 122

SC-2022-0515; SC-2022-0579 criminal-homicide action) can be brought for the destruction of a frozen embryo. In fact, a number of jurisdictions have rejected such causes of action. See, e.g., Penniman v. University Hosps. Health Sys., Inc., 130 N.E.3d 333, 339 (Ohio Ct. App. 2019) (holding that patients could not bring wrongful-death action against hospital based on destruction of frozen embryos because the embryos had no statutory rights); Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 400, 121 P.3d 1256, 1270 (Ct. App. 2005) (holding that cryopreserved, three-day-old, eight-cell pre-embryo was not a "person" for purposes of recovery under wrongful-death statute); and Davis v. Davis, 842 S.W.2d 588, 594 (Tenn. 1992) (holding that under Tennessee law pre-embryos could not be considered "persons"). It is certainly true that this Court is not bound by the results in other states; however, when we are the sole outlier, it should cause us to carefully reexamine our conclusions about expanding the reach of a statute passed in 1872 and our understanding of the common law. G. The Consequences of This Decision and Why That is Relevant The main opinion's holding will mean that the creation of frozen embryos will end in Alabama. No rational medical provider would 123

SC-2022-0515; SC-2022-0579 continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.54 There is no doubt that there are many Alabama citizens praying to be parents who will no longer have that opportunity. And, there is no doubt that there will be fewer babies born. On the other hand, there are powerful moral and policy arguments supporting the notion that ending the creation, use, and destruction of frozen embryos is a good thing and that IVF technology has the potential for grave misuse. I am empathetic to both sides of this debate; however, it is not my role to take a position one way or another on this issue. Even so, 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 and the babies who will not be born. The solemn 54The main opinion notes, but does not reach, the defendants' possible defenses based upon contracts between the IVF provider and the plaintiffs. Like the main opinion, I do not reach the possible defenses. However, no medical provider would depend upon the contract argument to continue creating and maintaining frozen embryos in the future, given this significant legal uncertainty and the potential to incur a significant punitive damage penalty. 124

SC-2022-0515; SC-2022-0579 significance of these consequences (as well as the need for comprehensive regulation) further illustrates why this question is an issue that should be addressed by the elected representatives of the people of Alabama in the Legislature, not this Court. I thus urge the Legislature to promptly consider these issues to provide certainty to these Alabama parents-tobe and to the medical professionals who are attempting to provide services to them. 55 55As to the consequences of a contrary ruling, the main opinion discusses, but does not rely upon, a "parade of horribles" that the plaintiffs claim might result from a ruling that the term "minor child" in the Wrongful Death Act does not include frozen embryos. The plaintiffs are mistaken. These cases have no connection to partial-birth abortions, and Alabama's law on partial-birth abortions would not be impacted by a ruling in favor of the defendants in these civil wrongful-death cases. See § 26-23-3, Ala. Code 1975. There are also no facts in the record to support any such argument, and there is no doubt the Wrongful Death Act could reach a partial-birth abortion situation as appropriate. As to the plaintiffs' second argument (regarding a possible future case involving a yet to be invented artificial womb), the answer to this futuristic hypothetical is simple. These cases are about the facts today and are based upon a statute that has not changed in its relevant terms since 1872. Should the facts change, the Legislature can address future technologies and can do so far better than this Court. The main opinion alleges that I have conceded that the Wrongful Death Act would not cover such a hypothetical. It is mistaken. I have made no such concession. We decide cases on the facts that are before us 125

SC-2022-0515; SC-2022-0579 The Chief Justice's special concurrence does not dispute that this will lead to fewer newborn babies. However, Chief Justice Parker insists that the IVF process may still survive in Alabama in some other form (for instance, he suggests: "one embryo at a time") because certain other countries have more regulations on their IVF processes. So. 3d at (Parker, C.J., concurring specially); id. at (stating that he fails to see that "IVF will now end"). In fact, he spends several pages - not hypotheticals. The main opinion also alleges that I have failed to discuss the "constitutional implications" of this hypothetical. So. 3d at n.3. Again, the reason is simple -- it is a hypothetical and we do not reach arguments or facts that are not before us, certainly not hypotheticals about technology that does not even exist. This Court would be in a position to address the alleged "constitutional implications" only if the following circumstances existed: (1) such an artificial womb existed, (2) it was actually used someday in the future, (3) a developing unborn infant was killed in an artificial womb, (4) the Wrongful Death Act had not been modified by the Legislature, (5) and we concluded that this created an Equal Protection Clause conflict. No such circumstances exist in the present appeals; I therefore see no need to address these hypothetical scenarios. See, generally, Ex parte Ankrom, 152 So. 3d 397, 431 (Ala. 2013) (Shaw, J., concurring in part and concurring in the result) ("Some of the arguments made ... are premised on hypothetical situations, different from the facts before us, in which the Code section might be either unconstitutional as applied or seemingly unwise in its application. It goes without saying that we cannot strike down the application of the Code section ... merely because the Code section might be unconstitutionally applied in some other context." (footnotes omitted)). 126

SC-2022-0515; SC-2022-0579 describing the regulations that currently exist in other countries and suggests that the Alabama Legislature may wish to consider those regulations. The Alabama Medical Association strongly disagrees with the suggestion that IVF in some other, reduced, form is practical, safe, or medically sound and has filed two amicus briefs exhaustively explaining these issues. It is not the place or time to decide whether the position of the Chief Justice or the position of the Alabama Medical Association is correct, moral, or ethical. It is not the place because these are questions for the Legislature and not this Court. And, even if this Court were the correct forum, it would not be the time because these appeals are at the motionto-dismiss stage and there is no factual record at this point. Therefore, no party has had the opportunity to investigate and respond to the assertions by the Chief Justice or the Alabama Medical Association. However, as to the Chief Justice's suggestion that the Legislature consider these issues immediately (including his suggestion that they consider comprehensive regulation), I strongly agree. II. The Plaintiffs' Negligence and Wantonness Claims Finally, the main opinion does not reach the plaintiffs' negligence 127

SC-2022-0515; SC-2022-0579 and wantonness claims because they are pleaded in the alternative and, instead, holds that those claims are now "moot." Because I would affirm the dismissal of the plaintiffs' wrongful-death claims, I must reach this issue. For the reasons stated below, I would reverse the trial court's dismissal of those claims. So. 3d at 128 The defendants are making a "catch-22" argument. Ashland, Inc., 970 So. 2d 755, 772 n.6 (Ala. 2007) (Harwood, J., dissenting) ("Catch-22: a frustrating situation in which one is trapped by contradictory regulations or conditions.' Random House Webster's Unabridged Dictionary (2d ed. 2001)."). On the one hand, the defendants claim that the frozen embryos are not a "minor child." On the other hand, they claim that because the frozen embryos were "lives," no common-law claim (such as claims of negligence or wantonness) is available because no "damages" are recoverable. I am concerned that such a rule might allow the destruction of life with no consequence, even for someone who commits an intentionally wrongful act. As explained by the plaintiffs, IVF is used by many parents-to-be in dire circumstances (for instance, because of reproductive issues caused by cancer, age, or infertility). Their frozen embryos are Cline v.

SC-2022-0515; SC-2022-0579 undeniably precious. Thus, this argument has the potential to be both unjust and to incentivize bad conduct. See Huskey, 289 Ala. at 54, 265 So. 2d at 597 (noting that not allowing a recovery "would give protection to an alleged tort-feasor"). However, I need not reach the question of exactly how our Court should handle this situation because it is too early in these cases. We are only at the pleading stage. The plaintiffs argue, under this Court's prior decision in Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640, 642 (Ala. 1985), that the trial court's dismissal of their common-law tort claims in response to a Rule 12(b)(6), Ala. R. Civ. P., motion was improper. Under Raley, they argue, once a pleader has set out a cause of action, the failure of the complaint to allege requisite elements of relief (that is, damages) is not usually a ground for a motion to dismiss for failure to state cause of action but, rather, must be challenged by a motion to strike, by objection to evidence, or by requested charges. Accordingly, they contend that the trial court's dismissal of those claims is due to be reversed. "Alabama is a 'notice pleading' state." Surrency v. Harbison, 489 So. 2d 1097, 1104 (Ala. 1986) (citing Simpson v. Jones, 460 So. 2d 1282 129

SC-2022-0515; SC-2022-0579 (Ala. 1984)). Rule 8(a), Ala. R. Civ. P., provides: "(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded." "The primary purpose of notice pleading is to provide defendants adequate notice of the claims against them." Cathedral of Faith Baptist Church, Inc. v. Moulton, 373 So. 3d 816, 819 (Ala. 2022) (citing Adkison v. Thompson, 650 So. 2d 859 (Ala. 1994)). "'[P]leadings are to be liberally construed in favor of the pleader.'" Id. (quoting Adkison, 650 So. 2d at 862). As relevant here, "'the dismissal of a complaint is not proper if the pleading contains "even a generalized statement of facts which will support a claim for relief under [Rule 8, Ala. R. Civ. P.]" (Dunson v. Friedlander Realty, 369 So. 2d 792, 796 (Ala. 1979)), because "[t]he purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and to renounce the technicality of procedure." Crawford v. Crawford, 349 So. 2d 65, 66 (Ala. Civ. App. 1977).'" Id. (quoting Simpson, 460 So. 2d at 1285). In their amended complaints, the plaintiffs alleged that the defendants' negligent and wanton conduct in failing to secure their respective facilities "led to and/or caused the destruction of the plaintiffs' 130

SC-2022-0515; SC-2022-0579 embryo[s]." As a result of that allegedly negligent and wanton conduct, the plaintiffs "demand[ed] judgment for compensatory damages, including but not limited to, [the] value of embryonic human beings …... and for the severe mental anguish ...." (meaning that they are seeking any valid compensatory damages). (Emphasis added). The defendants do not attempt to address this Court's prior decision in Raley, supra. They also do not ask that we: (1) revisit the pleading standard under Alabama law or (2) reconsider our decision in Raley. They also do not point to any caselaw in which we have affirmed a trial court's dismissal at the pleading stage based upon an argument that damages had not been properly pleaded. Based on Raley, supra, I would reverse the trial court's dismissal of the plaintiffs' negligence and wantonness claims. 131

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IMAGES

  1. How to Write a Counterclaim Paragraph Part 1

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  2. What Is a Claim in Writing? Examples of Argumentative Statements

    thesis counter claim

  3. How to Write a Counterclaim Paragraph Part 1

    thesis counter claim

  4. How to Write a Counterclaim Paragraph Part 1

    thesis counter claim

  5. How To Write A Counterclaim For An Argumentative Essay

    thesis counter claim

  6. 002 Maxresdefault Argumentative Essay Counterclaim ~ Thatsnotus

    thesis counter claim

VIDEO

  1. Three Minute Thesis

  2. Counter Claim for Persuasive Essay

  3. What is Extended Essay? (Thesis Statement)

  4. Why it's essential to know yourself as a thesis writer

  5. How to turn your thesis to an article: Dr R K Singh, Professor, NORTHCAP University

  6. Exegetical Synthesis and Thesis Statements

COMMENTS

  1. How To Write A Counterclaim Like A Pro (Really)

    The counterclaim opposes the thesis statement in your essay. So, this is how a counterclaim comes about: You first introduce the topic in the introductory paragraph Create a thesis statement in the last sentence Write a counterclaim that rebuts the initial argument

  2. Counterargument

    Counterargument When you make an argument in an academic essay, you are writing for an audience that may not agree with you. In fact, your argument is worth making in the first place because your thesis will not be obvious—or obviously correct­—to everyone who considers the question you are asking or the topic you're addressing.

  3. How To Write A Counterclaim: Guideline For Success

    A counterclaim is one or several arguments that oppose the thesis statement in your argumentative essay or thesis. Before making a counterclaim, it is prudent to ensure the thesis clearly demonstrates what your central argument is. Therefore, you should not include the counter claim in this section of the paper.

  4. Organizing Your Argument

    Counterclaim: You should anticipate a counterclaim that negates the main points in your argument. Don't avoid arguments that oppose your own. Instead, become familiar with the opposing perspective. If you respond to counterclaims, you appear unbiased (and, therefore, you earn the respect of your readers). You may even want to include several ...

  5. Parts of an Argumentative Essay

    The overall claim for an essay is also known as the thesis and can be found in the introduction of the essay. Sometimes, an author breaks their overall claim, or thesis, into smaller claims...

  6. Strong Thesis Statements

    Purdue OWL General Writing Academic Writing Establishing Arguments Developing Strong Thesis Statements Developing Strong Thesis Statements The thesis statement or main claim must be debatable An argumentative or persuasive piece of writing must begin with a debatable thesis or claim.

  7. PDF Step-by-Step: Counterclaim and Rebuttal

    Step 1: Write a counterclaim. Write a sentence that contradicts the claim. For example, if your thesis says, "Everyone should eat chocolate ice cream," then your counterclaim might be, "Some people are allergic to chocolate." Practice: Write your claim here: Now write a counterclaim for it: Step 2: Explain the counterclaim.

  8. Identifying Thesis Statements, Claims, and Evidence

    Finding Claims. A claim is statement that supports a thesis statement. Like a thesis, it is not a fact so it needs to be supported by evidence. You have already identified the article's thesis statement: "People's prior convictions should not be held against them in their pursuit of higher learning."

  9. Developing Claims and Counterclaims

    Introduction. When you're diving into a persuasive speech, article, or essay, there are two key things to look out for: the claim and the counterclaim. The claim is basically what the author believes and wants you to agree with. It's their main point or argument about a topic. On the flip side, the counterclaim is the opposite stance.

  10. Claim & Counterclaim in Argumentative Writing

    A counterclaim is an opportunity to address opposing views. Begin the counterclaim paragraph with a topic sentence that acknowledges the opposing side and references the previous paragraph to...

  11. Where to Put the Essay Counterclaim

    The counterclaim is the opposing point of view to one's thesis and is also known as the counterargument. The counterclaim is always accompanied by a refutation, sometimes referred to as a rebuttal. The Common Core State Standards include the counterclaim in Writing Standards 1.0 for grades 7-12.

  12. 4.4 Basic Structure and Content of Argument

    In your thesis statement, you should clearly and specifically state the position you will convince your audience to adopt. One way to accomplish this is via either a closed or open thesis statement. A closed thesis statement includes sub-claims or reasons why you choose to support your claim. Example of Closed Thesis Statement.

  13. How to Write an Effective Counterclaim in 5 Steps

    A counterclaim can be defined as a claim that directly opposes yours. If your reaction is "Wait, what!? I have to argue against myself?" right now, hold on. There are multiple strong reasons to include a counterclaim in your essay. Here's a look: By including a counterclaim, or indeed multiple, you show that you don't have tunnel vision.

  14. How To Write Counterclaim And Rebuttal Like A Pro

    A counterclaim is included in argumentative writing and thesis to convince the reader to accept your claim. It's essential to craft a good counterclaim to convince and get the reader on your side. The blog will provide you with complete insight into everything you need to know about writing counterclaims. What is a Counterclaim in Writing?

  15. How Counterclaim Your Position in an Argumentative Essay

    A counterclaim is simply one or more arguments that oppose the thesis statement of your argument. Before you arrive at a counterclaim, you need to make sure your thesis explains what you claim you want to prove and how you'd like to do it. You don't include a counterclaim in the thesis part.

  16. Mastering Counterclaim Argumentative Essays: A Complete Guid

    A counterclaim is essentially the opposite side of the argument you're presenting. It's an acknowledgment that there are valid arguments against your thesis. Integrating a counterclaim shows...

  17. Counterclaim

    Noun A claim made to offset another claim in a legal action. Verb To assert a claim for relief against a party who has made an original claim. Origin 1775-1785 English (counter +claim) What is Counterclaim In very simple terms, a counterclaim is the opposite of a claim.

  18. How to Write a Thesis Statement

    Placement of the thesis statement. Step 1: Start with a question. Step 2: Write your initial answer. Step 3: Develop your answer. Step 4: Refine your thesis statement. Types of thesis statements. Other interesting articles. Frequently asked questions about thesis statements.

  19. How to write a Counterclaim Paragraph, Sentence or Rebuttal

    January 18, 2024 Learning If you are writing an argumentative essay, you will find yourself including counterclaims. In this guide, we guide you on how to write a good counterclaim in an essay and how to frame your counterclaim sentence and paragraph in rebuttal.

  20. How to Write a Counterclaim [Explained Simply!]

    In writing, a counterclaim is an opposing argument that goes against the thesis statement of a paper. It shows your audience that you have researched the topic thoroughly by looking into both sides of the issue and that you're not trying to hide any important information that refutes your thesis.

  21. How to Teach Claims, Counterclaims and Rebuttals in Writing!

    A counterclaim is a claim used to rebut a previous claim. A claim is the main argument. A counterclaim is the opposite of the claim, or argument. What is a Rebuttal? A rebuttal is when you address and challenge a claim by disapproving it. After you have stated your counterclaim in an argument, you add your rebuttal to why you disapprove it.

  22. How to Write an Argumentative Essay

    Make a claim. Provide the grounds (evidence) for the claim. Explain the warrant (how the grounds support the claim) Discuss possible rebuttals to the claim, identifying the limits of the argument and showing that you have considered alternative perspectives. The Toulmin model is a common approach in academic essays.

  23. Read the Alabama Supreme Court's Ruling

    SC-2022-0515; SC-2022-0579 SC-2022-0579 Felicia Burdick-Aysenne and Scott Aysenne, in their individual capacities and as parents and next friends of Baby Aysenne, deceased embryo/minor V.