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Alabama Supreme Court Rules Mother Can Sue for ‘Wrongful Death’ of Pre-viable Unborn Son

by | Feb 21, 2012

By Dave Andrusko

Alabama Supreme Court Justice Tom Parker

In a unanimous decision, the Alabama Supreme Court Friday ruled that a DeKalb County woman could sue for wrongful death of her unborn son even though her baby had not reached viability. In a separate concurring opinion, three justices joined Justice Tom Parker to highlight what it called the “diminishing influence of Roe’s viability standard” outside the abortion context.

The decision overturns a ruling by a lower court that held Amy Hamilton could not sue because her baby had not reached the stage when he could  survive outside the womb. The baby was stillborn on March 10, 2005.

Attorneys for Hamilton filed suit against several doctors and a medical group, asserting that the lack of proper medical intervention resulted in the child’s death.

“Amy Hamilton sued after doctors repeatedly failed to administer ultrasounds,” according to “When an eventual ultrasound showed her child was unusually small and had developed a small fold at the back of his neck – a possible sign of severe anemia and hydrops, which can cause congestive heart failure – she requested to be referred to a perinatologist at another clinic but was refused.”

The concurring opinion, which gathered most of the attention, took Roe v. Wade to the woodshed, although the decision in Hamilton v. Scott focused on viability and made clear that the impact of the holding is outside the abortion context.

Parker stated,

‘I write separately to explain why the Supreme Court’s decision in Roe v. Wade…does not bar the result we reach today and to emphasize the  diminishing influence of Roe’s viability standard.  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 of wrongful death, Roe’s viability  standard should be universally abandoned. … Since 1973, when Roe was decided, laws regarding prenatal injury, wrongful death, and fetal homicide have increasingly abandoned the viability standard expressed in  Roe. “

He went on to note that Roe’s statement that unborn children are not ‘persons’ within the  meaning of the Fourteenth Amendment is irrelevant to the question whether unborn children are ‘persons’ under state law.  Because the Fourteenth Amendment ‘right’ recognized in Roe is not implicated unless state action violates a woman’s ‘right’ to end a pregnancy, the other parts of the superstructure of Roe, including the viability standard, are not controlling outside abortion law.”

Roe’s viability rule, Parker continued, “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.”

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,” Parker wrote.

He concluded, “[T]ogether, 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..’”

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