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Feb. 19, 2012

Decision: Unborn child 'entitled to full protection of the law'

A stunning ruling from the state Supreme Court in Alabama is suggesting that states simply “reject” the concept of pre-viability abortion-at-will that comes from Roe v. Wade until the U.S. Supreme Court overrules the precedent.

In a powerful statement that appears to affirm the concept of the “personhood” movement, through which pro-life advocates seek to have states recognize the unborn as “persons,” a concurrence from Justice Tom Parker said, “Since Roe was decided in 1973, advances in medical and scientific technology have greatly expanded our knowledge of prenatal life.

“The development of ultrasound technology has enhanced medical and public understanding, allowing us to watch the growth and development of the unborn child in a way previous generations could never have imagined,” he wrote.

“Similarly, advances in genetics and related fields make clear that a new and unique human being is formed at the moment of conception, when two cells, incapable of independent life, merge to form a single, individual human entity.”

He continued, “Of course, that new life is not yet mature – growth and development are necessary before that life can survive independently – but it is nonetheless human life. And here has been a broad legal consensus in America, even before Roe, that the life of a human being begins at conception.”

His concurrence continued, “An unborn child is a unique and individual human being from conception, and, therefore, he or she is entitled to the full protection of law at every stage of development.

“Roe’s viability rule was based on inaccurate history and was mostly unsupported by legal precedent. Medical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development. And together, Alabama’s homicide statute, the decisions of this court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun’s words, ‘reluctant … to accord legal rights to the unborn..’

“For these reasons, Roe’s viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court,” he said.

Mathew Staver, founder and chairman of Liberty Counsel, said the decision by the Alabama Supreme Court “is an example of a ruling consistent with legal precedent and logic.”

“I applaud Justice Tom Parker’s clear and well-reasoned concurring opinion, which conclusively shows that Roe v. Wade’s viability rule does not apply, was based on flawed legal reasoning, and is undermined by advances in medical technology,” Staver said. “The life expectancy of Roe is limited and is being undermined by every other area of law and medicine.”

The comments came in the court’s decision that a woman who lost her unborn, pre-viable child, allegedly because of medical negligence, can sue for damages. The doctors named as defendants had argued that because the child was not yet viable, they were not liable for damages.

The unanimous majority opinion, which Parker also wrote, said the woman, Amy Hamilton, is entitled to pursue a claim over wrongful death, so the case must be returned to the lower court for “proceedings consistent with this opinion.”

Staver said, “Recovery for wrongful death of an unborn child does not depend on an arbitrary line of viability, because that line is based solely on existing medical technology. From the moment of conception and at all stages of development in the womb, the unborn child is a human being.”

According to Liberty Counsel’s report, “Parker wrote that Roe is out of step with every other area of law in which many state legislatures and courts have recognized the rights of the unborn child in wills and estates, tort or criminal law, and more.”

Parker noted his court previously had ruled that it was “unfair and arbitrary … to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability to that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability.”

Parker explained he wrote the special concurrence to the unanimous ruling because the Roe decision doesn’t apply in such cases.

“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 for wrongful death, Roe’s viability standard should be universally abandoned.”

Staver said the ruling does not directly impact abortion law, because American jurisprudence has put those laws in a special category. But he noted that the decision clearly reveals how out of step abortion precedents are with the medical and legal realities.

“Roe v. Wade is an aberration of the law,” he said. “This decision is more mounting evidence of how out of step it is.”

Parker explained that various courts have concluded that Roe holds that states have no interest in protecting the life of an unborn child.

“Roe does not support that conclusion,” he wrote. “The states are forbidden to protect unborn children only in ways that conflict with a woman’s ‘right.’ Roe held that a pregnant woman’s ‘right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’ No one, however, other than a woman seeking to ‘terminate her pregnancy,’ possesses the ‘right’ created in Roe.”

He wrote, “Roe does not prohibit states from protecting unborn human lives. To the contrary, the Supreme Court acknowledged that ‘the state has legitimate interests from the outset of the pregnancy’ in protecting the unborn child.

“Unless a state’s law conflicts with a woman’s ‘right’ to an abortion, the state law does not conflict with Roe,” he said.

The “personhood” campaign that has been developing around the nation calls for states to adopt constitutional amendments describing the unborn from the moment of conception as “persons.”

It is aimed at a loophole in the original Roe decision, in which the Supreme Court noted that if the “personhood” of the unborn was established, arguments for abortion would fall apart as the unborn then would be availed the full protections of the Constitution.