As the Alabama Supreme Court upheld the state’s fetal homicide law in a ruling this month, one of the justices said the decision should force the U.S. Supreme Court to revisit its 1973 Roe v. Wade ruling.
Justice Tom Parker said it is a “logical fallacy” for the government to consider a fetus a life for the purposes of a murder conviction but not when it comes to a woman deciding to end her pregnancy.
Even lawyers within the pro-life community were conflicted on whether that is the kind of challenge the high court would — or even should — take up, but they said the dissonance between abortion jurisprudence and other areas of law, where a fetus is granted many of the attributes of personhood, is becoming tenuous.
“Fetal homicide laws acknowledge what science has already proven: that a unique human life begins at the very moment of fertilization. Abortion laws reject that reality,” said Lila Rose, a prominent pro-life advocate and president of Live Action.
The case in Alabama involved Jessie Livell Phillips, who was convicted of killing his wife when she was eight weeks pregnant.
A jury found him guilty of murder of “two or more persons” by one act, using a 2006 law that defined “person” as including a child in utero. The court sentenced him to death.
He appealed his death sentence, arguing that an unborn child is not a person with independent protections and that he therefore couldn’t be convicted of a double killing. The state Supreme Court rejected his case and upheld his death sentence, citing the state’s interest in protecting the life of both the born and unborn.
Thirty-eight states have laws specifically aimed against violence on pregnant women and their unborn children. Massachusetts’ law dates as far back as 1973, the year of the Roe v. Wade decision. Indiana is the most recent; its law was enacted just this year.
Like other states, Alabama’s 2006 law specifically carves out a woman’s decision to terminate her pregnancy as an exception to fetal protections. Justice Parker called that the “Roe exception.”
“I urge the Supreme Court of the United States to reconsider the Roe exception and to overrule this constitutional aberration. Return the power to the states to fully protect the most vulnerable among us,” he wrote in his concurring opinion.
Some pro-choice advocates agree that there is an inconsistency but want to go the other way by curtailing laws protecting fetuses. Advocates say the laws don’t protect women against violence and can give states more avenues to interfere with women’s rights.
Lynn Paltrow, executive director of National Advocates for Pregnant Women, cited the cases of a woman who was arrested on attempted-feticide charges after accidentally falling down a stairwell, a woman who served eight years in prison for a stillbirth after a positive test for illegal drugs, and a woman who was arrested after losing her child following a suicide attempt.
“The real question is in what manner can women be deprived of their standing as constitutional persons?” Ms. Paltrow said.
Yet state laws also have served to give women more of a chance to pursue damages. In the 2012 Alabama ruling, the state Supreme Court said an injured woman could pursue a wrongful death claim for her unborn child.
In that case, Justice Parker again said those sorts of state decisions challenge the underpinnings of Roe.
In a 2013 case, he wrote the court’s opinion allowing the state to use its chemical endangerment statute to prosecute pregnant mothers for endangering their fetuses through drug use. He also wrote a separate opinion to chide Roe again.
In his latest opinion this month, Justice Parker pointed to other cases in which judges have found the unborn can be parties to estate settlements and disputes over trusts, and in which courts have appointed legal guardians for the fetuses to represent their interests in those cases.
At least 23 of the more than 30 states that have the death penalty prohibit pregnant women from being put to death, suspending their sentences until the child is born.
“Today, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of Roe,” Justice Parker argued in 2013.
There is another exception, though. A judge in Arizona ruled that a fetus did not count as a “person” for a pregnant woman to use the HOV lane in 2006.
A police sergeant told reporters at the time that if the judge had ruled the other way, police officers would need to carry pregnancy tests with their guns and radios.
Justice Parker’s pleading notwithstanding, some pro-life advocates say filing fetal homicide cases isn’t the best way to force the national high court to revisit Roe.
Clarke Forsythe, senior counsel for Americans United for Life, said the justices have faced cases similar to Phillips‘ argument since the 1990s.
“They have uniformly refused to touch on these issues in the past,” Mr. Forsythe said.
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