No, Abortion Is Not a ‘Wrongful Death’

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Analysis Law and Policy

No, Abortion Is Not a ‘Wrongful Death’

Caroline Reilly

Even the Alabama Supreme Court says so. For now.

The Alabama Supreme Court recently refused to hear the appeal of a man who was so mad his ex-girlfriend got an abortion that he  sued the abortion clinic for providing her the pills to end her pregnancy, and the manufacturer of those pills for making them in the first place. It was a frivolous, hateful, and downright bananas lawsuit—but it could have grave implications for abortion rights nationwide.

The lawsuit is Ryan Magers individually and on behalf of Baby Roe, a deceased unborn child v. Alabama Women’s Center Reproductive Alternatives, and if your antenna is already up at the name of the case—that’s for good reason. (Typically nothing good comes from a petitioner filing on behalf of a deceased unborn child, a term that’s a triple oxymoron.)

This case is a stark illustration of how conservative Alabama is, and how tenuous abortion access remains in the state. It also underscores that in Alabama, the ultimate goal is personhood.

Personhood is the notion that life begins at conception. In 2018, Alabama voters approved a personhood amendment to the Alabama Constitution that gives constitutional rights to fertilized eggs, embryos, and fetuses. The measure is cloaked in language about protecting the unborn; in reality, these laws threaten not only access to abortion but also access to birth control and IVF care. Because Roe v. Wade is still the law of the land, Alabama’s personhood amendment is a trigger law, meaning it will only take effect if Roe is overturned. Until then, it’s just symbolic.

Sex. Abortion. Parenthood. Power.

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Magers cited the the Alabama constitutional amendment as the basis for his claim that his ex-girlfriend’s abortion was a wrongful death. The clinic argued there were no grounds for the lawsuit because the abortion was legal. And because abortion is still legal in Alabama, it should come as no surprise that the clinic is right on the law.

A lower court judge dismissed Mager’s case, ruling that he had no personal claim against the clinic, that there was no allegation anything illegal happened at the clinic, and that clinics were protected from lawsuits like this, according to WAFF-TV. Magers appealed the decision, and the case worked its way up the state supreme court where it was thrown out—but not for the reason you’d hope.

Let’s back up a little and take a look at how we got here: Angry that his ex-girlfriend got an abortion six weeks into her pregnancy, Magers filed a petition in probate court to be appointed as a representative for the embryo’s estate. (Alabama law does not permit family members of a deceased person to bring a wrongful death claim. Only the personal representative of the deceased person’s estate can bring wrongful death claims.)

So that Magers could pursue this claim, the probate court judge granted Magers’ request to represent the estate of a six-week embryo dubbed “Baby Roe.”Magers then filed a wrongful death claim against Alabama Women’s Center for Reproductive Alternatives, which had provided the woman with a medication abortion, on behalf of “Baby Roe.” Magers’ attorney Brent Helms gloated that it was the first time a court had created an estate for an aborted fetus. The probate judge’s ruling, he said, would lend legitimacy to their wrongful death suit because it would help establish that the termination of a six-week embryo is the same as the death of a real person, with the ability to have an estate established and presumably drive and do TikTok dances.

“It gives more legs to the lawsuit and it’s also pretty monumental because it’s the first time a probate court has opened an estate for an aborted baby,” Magers told a local newspaper.

When one of these cases inevitably works its way up to the new conservative Supreme Court, it could spell disaster for abortion rights.

Even after a local court judge dismissed the case, Magers’ attorney had good reason to gloat: The Alabama Supreme Court judges have been injecting personhood language into their opinions for years. They are perfectly fine with giving constitutional rights to embryos and fetuses. But the court dinged Magers on a procedural issue: Magers filed a one-sentence brief with a string of citations to Alabama cases and statutes. Appellate briefs are required to have actual arguments in them. Magers’ had none.

The court dismissed the case, but that didn’t stop it from taking the opportunity to opine on why Roe v. Wade should be overturned, since if Roe is overturned, the state’s personhood amendment would be triggered into law. Justice Jay Mitchell penned the concurrence, filling it with quotes from conservative giants like Scalia and Thomas. He cites Thomas’ dissent in June Medical Services v. Russo calling abortion “grievously wrong for many reasons,” and arguing that the right to an abortion finds no support in the U.S. Constitution. And he quotes from Scalia’s dissent in Ohio v. Akron, which makes a similar argument: “The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution—not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins.”

Drawing on these opinions, Mitchell calls for overturning Roe v. Wade, arguing that “Roe and Casey hamstring states as they seek to prevent human tragedy and suffering.” In his concurrence, Mitchell also describes dilation and evacuation (D&E) procedures—the most common form of second trimester abortion—as “dismemberment” abortions, a clear attempt to make the procedure seem scary and gross. And he basically spits on stare decisis—which is just legal jargon for “we should stick to precedent”—by saying Roe should be overturned even though it’s binding precedent.

Here’s the thing: Sure, it’s might seem like an absurd, nonbinding concurrence from a state supreme court (another court can’t use it to say, “welp this court said this so we’ve gotta abide by it!”), but it’s actually incredibly serious and dangerous. We are faced with a U.S. Supreme Court saturated with Trump judges, and cases like this are like warning shots across the bow: a dark and terrifying omen of what’s to come as Trump’s influence on the courts becomes more apparent. And when one of these cases inevitably works its way up to the new conservative Supreme Court, it could spell disaster for abortion rights.