In a unanimous ruling, the eight justices of the Alabama Supreme Court have revived a wrongful death claim against a physician even though the life that was lost was that of a “pre-viable” unborn child.
The ruling sets the state at odds with the U.S. Supreme Court’s Roe v. Wade decision, which established abortion as a “right.”
The Alabama judges criticized the Roe decision’s “incoherent standard” of viability.
“Viability is irrelevant to determining the existence of prenatal injuries, the extent of prenatal injuries, or the cause of prenatal death,” wrote Justice Tom Parker in a special concurrence to the majority.
He was quoting from his own previous commentary on a case when he said, “Viability is irrelevant to proving causation because the unborn child’s anatomic condition can be observed regardless of viability and, if the unborn child dies, the cause of its death can be determined by autopsy regardless of the child’s gestational age.
“Viability does not affect the child’s loss of life or the damages suffered by the surviving family,” he wrote.
The potential conflict arises because under Roe, the U.S. Supreme Court said states cannot put the interests of an unborn child ahead of the interests of the pregnant mother until the unborn baby is “viable,” meaning it is capable of living apart from its mother.
Already, 41 states restrict abortions for children who are viable.
Parker pointed out the challenge to Roe that is developing.
“The use of the viability standard established in Roe is incoherent as it relates to wrongful-death law because, among other reasons, life begins at the moment of conception. The fact that life begins at conception is beyond refutation,” he said.
The Roe opinion itself noted its fatal flaw, reasoning that if the personhood of the unborn were to be established, it would be accorded all of the constitutional rights, including the right to life.
Parker noted that unborn children increasingly are being recognized.
“Laws and judicial opinions throughout the country ‘that recognize unborn children as persons with legally enforceable rights in many areas of the law … property laws, criminal law, tort law, guardianship law and health-care law – demonstrate[e] the breadth of legal protection afford the rights of unborn children,” he wrote.
His state’s formal public policy he noted is “to protect life, born, and unborn … and at every stage of development.”
In the Alabama case, a lower court had dismissed a claim submitted by Kimberly Stinnett for the “wrongful death” of her unborn child.
She was pregnant, and when she called her doctor’s office for advice about cramping and fever, was referred to Karla Kennedy, M.D., who after some tests, eventually ordered her to have methotrexate, a cytotoxic drug used to treat ectopic pregnancies.
Her own doctor then returned and found that she was “having a failing intrauterine pregnancy, possibly as a result of her methotrexate injection.”
After Stinnett suffered a miscarriage, she sued Kennedy for medical negligence, alleging the treatment violated the applicable standard of care, and filed a claim for the wrongful death of her unborn.
Kennedy argued that because state law protects doctors from criminal charges in the deaths of the unborn in some circumstances, she should be protected from civil liability as well. The high court said no.
“‘Logic, fairness, and justice’ compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to life outside the womb,” the court ruled.
“We hold that the Wrongful Death Act permits an action for the death of a previable fetus.”
In fact, Alabama law now states the term “person,” when describing the victim of a criminal homicide or assault, includes an “unborn child in utero at any stage of development regardless of viability.”
The ruling said: “We settled the incongruence between civil and criminal statutes [previously] not by giving unborn children less protection under the law but by recognizing that unborn children, viable or not, were equally protected under the Wrongful Death Act.
“Members of the judicial branch of Alabama should do all within their power to dutifully ensure that the laws of Alabama are applied equally to protect the most vulnerable members of our society, both born and unborn,” the court said.