Do you agree with this decision or should a baby have to be viable for a wrongful death determination?
Alabama court's wrongful death ruling used to recommend abandoning Roe 'viability' argument
Life groups are hailing an opinion by an Alabama Supreme Court justice who argued that it's time to abandon the viability standard used in Roe v. Wade because medical breakthroughs -- backed by case law and legislation -- have shown a fetus is only as viable as the technology monitoring it.
The opinion by Judge Thomas Parker was issued Friday in the case of a woman who sued her doctors for wrongful death when her baby died in the womb while only three months in gestation.
The Alabama Supreme Court threw out a DeKalb Circuit Court summary judgment in favor of the defendants that held the wrongful-death action could not be maintained because the unborn child was not viable.
Parker wrote that the Supreme Court "erroneously" concluded in Roe that the unborn have no rights as "persons," but since 1973, mounds of cases have been decided in tort and criminal law in favor of babies with prenatal injuries "regardless whether the injury occurred either before or after the point of viability."
Citing the National Conference of State Legislatures, Parker wrote that 38 states have enacted fetal-homicide statutes, of which 28 protect life from conception, and noted a ruling from last year by his own court that concluded that Alabama's wrongful death law applies to an unborn child at any stage of gestation. He added that at least nine other states permit recovery for the wrongful death of previable unborn children.
"This court recognized the arbitrariness of 'draw(ing) a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability,'" Parker wrote.
Extending the argument, Parker, whose opinion was signed by three other judges, wrote that "Roe's statement that unborn children are not 'persons' within the meaning of the Fourteenth Amendment is irrelevant to the question whether unborn children are 'persons' under state law. Because the Fourteenth Amendment 'right' recognized in Roe is not implicated unless state action violates a woman's 'right' to end a pregnancy, the other parts of the superstructure of Roe, including the viability standard, are not controlling outside abortion law."
The court's ruling only affects Alabama law, for now, but pro-life groups said Parker's opinion will be picked up in other courts in other states.
"Roe v. Wade is an island by itself and that island is getting smaller and smaller and that perimeter is eroding," said Matthew Staver, founder and chairman of Liberty Counsel, a nonprofit legal group dedicated to sanctity of life and religious freedom issues.
Staver noted that viability "will vary over time" and medical advances that give the child a chance to live outside the womb constantly change. "What stays constant is that at the moment of conception the child is a human being."
In the case, Amy Hamilton argued that her baby died in utero because of negligent acts by her doctors. She claimed that for six weeks beginning in early January 2005 she sought ultrasounds to monitor her baby after she contracted "fifth disease," an infection caused by human parvovirus. When the technician finally gave her an ultrasound at the end of February, the baby was shown to have problems. He was still born two weeks later.
Hamilton filed suit that the baby's death could have been avoided if she had been monitored as recommended. The lower court gave a summary judgment to the doctors, claiming that the wrongful-death action could only be claimed if the child had been able to survive outside the womb.
But the high court ruled that both legislatively and in the court, nonviable fetuses have been regarded as persons.
The Supreme Court did uphold the lower court's summary judgment for the doctors that Hamilton suffered physical injury as a result of the loss, saying that she had argued that the fetus from its conception was a separate being so she could not have been the one to suffer physical injury as a result of the baby's death.
The case now returns to the lower court to be judged on the merits of wrongful death statutes.
Pro-choice group NARAL did not respond to a request for comment.