The Eleventh Circuit Court of Appeals is currently considering a challenge to an Alabama law that would criminalize the most common method of second-trimester abortion: dilation and evacuation (D and E). Signed into law by Gov. Robert Bentley (R) in May 2016 and ruled unconstitutional in October, Alabama’s “dismemberment ban” is a direct attack on Roe v. Wade by seeking to ban abortion before viability.
In ruling the law unconstitutional, the lower court found that should it take effect, the result would be a de facto ban on abortion beyond 15 weeks. For anti-abortion activists, though, the fight over Alabama’s D and E ban is much more than a fight over this specific restriction. It is an opportunity to try and advance the idea of so-called fetal personhood into law, thus potentially re-criminalizing abortion and some forms of birth control.
Two organizations make the case for fetal personhood in the Alabama lawsuit challenging the state’s D and E ban. One is the Foundation for Moral Law (FML), a religious advocacy organization founded in 2002 by failed U.S. Senate candidate and former Alabama Supreme Court Justice Roy Moore. Moore’s wife, Kayla, currently serves as its president. FML, according to its website, “exists to restore the knowledge of God in law and government.” Advocating against legal abortion, and specifically for fetal personhood, is one of the foundation’s top policy priorities, according to its website.
The foundation filed an amicus brief last month with the Eleventh Circuit to make the fetal personhood argument, relying heavily on case law Moore helped develop while on the bench. The brief cites Ankrom v. Alabama to argue that the state’s law has decided to recognize a developing fetus as a person under the law. Ankrom is a 2013 case in which the Alabama Supreme Court held that the word “child” in the Alabama’s child chemical endangerment statute applies to “unborn children” as well as to born children, and upheld the criminal convictions of two women who ingested chemical substances while pregnant. Although the term “child” was not defined in the statute, the court endorsed the reasoning of the Alabama Court of Criminal Appeals, which held that “‘the dictionary definition of the term ‘child’ explicitly includes an unborn person or fetus.’”
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The Ankrom decision is a textbook example of judicial activism, as Rewire‘s Imani Gandy wrote at the time: “The statute was enacted to protect children from injury resulting from exposure to toxic chemicals used to produce methamphetamines, not to punish drug-dependent women for choosing to carry their pregnancies to term despite their drug dependencies. In fact, the chemical-endangerment statute was not intended to address the behavior of pregnant women at all.” The result is a trailhead for advancing the rights of a developing fetus over the rights of a pregnant person.
The brief then moves to Hicks v. Alabama, a 2014 Alabama Supreme Court decision that upheld the criminal conviction of Sarah Janie Hicks under that same statute. Hicks had given birth to a healthy baby that later tested positive for cocaine. The entire majority opinion is a treatise on prosecuting people who end their pregnancies, with Moore going out of his way in a concurring opinion to state that the courts must follow “God’s law” and reject abortion rights jurisprudence in favor of fetal personhood.
Despite Moore’s best efforts, though, fetal personhood has not been fully enshrined in Alabama law—at least, not yet. The Alabama legislature has tried and failed three times to pass some form of fetal personhood that would effectively criminalize abortion. And in November, Alabama voters will decide whether to amend their state constitution to recognize a “right to life.” Should the amendment pass, it would set Alabama up to immediately ban abortion should the U.S. Supreme Court ever overturn Roe v. Wade.
Where Moore’s FML makes the fetal personhood argument explicitly, the amicus brief filed last month by the American Association of Pro-Life Obstetricians and Gynecologists and the American College of Pediatricians through their attorneys at Liberty Counsel does so implicitly: via arguments that a fetus feels pain as early as eight weeks and that D and E abortions should be considered cruel and unusual punishment under the Eighth Amendment.
Liberty Counsel’s brief doesn’t call on the court to ignore Roe when considering the constitutionality of Alabama’s D and E ban outright. Instead it suggests ignoring Roe is the natural conclusion to recognizing the “humanity” of a fetus. That humanity, the brief argues, can be proven in the so-called science of fetal pain. The brief cites frequent anti-choice expert Dr. Colleen Malloy for the proposition that a fetus can feel pain around eight weeks. Malloy has provided testimony in support of various anti-choice bills in Congress and at the state level. In 2012, she provided testimony for the “District of Columbia Pain-Capable Unborn Child Protection Act.” In 2016, she testified at a Senate Judiciary Committee hearing on the “Pain-Capable Unborn Child Protection Act,” which would have banned abortion at 20 weeks, and the “Born-Alive Abortion Survivors Protection Act,” which propagated the myth that abortion results in the birth of live infants. Malloy also provided testimony in the U.S. District Court case Whole Woman’s Health v. Paxton, a lawsuit challenging the 2017 Texas law similar to Alabama’s that seeks to ban D and E procedures.
Here, Liberty Counsel uses Malloy’s research to argue “feeling pain” is the same thing as “being alive.”
“The humanity of the unborn child is well-accepted by scientists who have determined that the unborn child ‘is not an inert being,’ akin to the larval stage of insects, but ‘an active and dynamic creature’, responding and even adapting to conditions inside and outside the mother’s body as it readies itself for life in the particular world it will soon enter,” the brief says.
Having established the notion of humanity being tied to “feeling pain,” the brief pivots to constitutional prohibitions on cruel and unusual punishment and argues that “dismemberment” in a D and E should therefore be considered cruel and unusual.
The argument is nothing but sophistry. The proposition that a fetus “feels” pain like anti-choice advocates claim is just not supported by science. The rhetorical purpose of that argument in this brief is to try and create a transition from pain to punishment and to equate the most common form of second-trimester abortion with state execution.
At this point, the Eleventh Circuit has not yet scheduled arguments in the case. And it’s hard to pinpoint how much influence amicus briefs like the ones submitted by FML and Liberty Counsel have on judges. But even if the judges disregard the briefs entirely, they remain part of the totality of arguments before the Eleventh Circuit. This means they can become part of the totality of the legal reasoning and find their way into the court’s decision on the law’s constitutionality when one is made. That makes their advocacy role in litigation undeniable.