Alabama Supreme Court Justice Tom Parker offered some red meat to pro-lifers when he used a wrongful death case to call on states to give legal rights to unborn babies, arguing that Roe v. Wade’s “viability standard is not persuasive” and “should be abandoned.”
In a unanimous decision issued Friday, the Alabama Supreme Court ruled that a DeKalb County, Ala. woman could pursue a wrongful death claim against her doctors on behalf of her unborn child, even though the fetus died before being able to survive outside her womb.
The court’s ruling reversed the lower DeKalb Circuit Court’s decision, which held that the woman, Amy Hamilton, could not sue because the child was not yet viable.
Hamilton and her lawyers had sued three doctors and a medical group claiming that their “negligent acts” resulted in the death of her unborn son.
The ruling authored by Parker and signed by the remaining three justices asserted that the standard of viability should be abandoned as it pertains to the law of wrongful death.
“Today, this Court reaffirms that the lives of unborn children are protected by Alabama’s wrongful-death statute, regardless of viability,” Parker wrote in the decision. “I write separately to explain why the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), does not bar the result we reach today and to emphasize the diminishing influence of Roe’s viability standard. Because Roe is not controlling authority beyond abortion law, and because its viability standard is not persuasive, I conclude that, at least with regard to the law of wrongful death, Roe’s viability standard should be universally abandoned.”
Parker added that “The Supreme Court in Roe erroneously concluded that ‘the unborn have never been recognized in the law as persons'” and that outside of abortion law, “viability” has “little significance.” According to Parker, Roe’s viability rule should be rejected by the states.
In his ruling Parker also noted that as of March 2010, 38 states have fetal homicide laws and Alabama’s homicide statute includes “an unborn child in utero at any stage of development, regardless of viability.”