by Ben Johnson
MONTGOMERY, ALABAMA, February 17, 2012, (LifeSiteNews.com) – In a landmark legal case that established the right of a mother to sue if her unborn child wrongfully dies before viability, today the Alabama State Supreme Court unanimously ruled that “each person has a God-given right to life.”
A concurring opinion issued by four judges specifically stated that Roe v. Wade‘s viability standard “should be rejected by other states until the day it is overruled by the United States Supreme Court.”
Amy Hamilton sued after doctors repeatedly failed to administer ultrasounds. 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.
On March 10, 2005, her son was stillborn.
A lower court had ruled that, since the child had not yet reached the stage that it could survive outside the womb, she could not pursue a wrongful death claim “for the death of [her] non-viable fetus.”
Today, the Alabama Supreme court’s Hamilton v. Scott ruling rejected that understanding, which was based on Roe v. Wade. Instead, it cited the 1973 Alabama Supreme Court decision Wolfe v. Isbell, which ruled “that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.”
In footnote three, the justices quoted the Alabama state constitution before concluding that its “words, borrowed from the Declaration of Independence…affirm that each person has a God-given right to life.”
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In his concurring opinion joined by three fellow justices, Justice Tom Parker stated, “I write separately today…to emphasize the diminishing influence of Roe‘s viability standard,” which he described as “arbitrary,” “incoherent,” “based on inaccurate history,” and “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,” he wrote. As such, the belief that women should not be able to sue if their unborn child is below an ever-changing medical standard “should be universally abandoned” and “rejected by other states until the day it is overruled by the United States Supreme Court.”
Upon learning of the seminal decision, the ABA Journal wrote, “An Alabama justice known for his conservative stands is using a woman’s wrongful death case over a stillborn fetus to question the viability standard in Roe v. Wade.”
But pro-life attorneys greeted the decision – which does not have a direct impact directly upon abortion – as a step toward the full recognition of an unborn child’s humanity and value in the eyes of the law.
“Women do not begin loving their children only at an arbitrary line of viability and suffer great loss whenever they lose their child,” Casey Mattox, Alliance Defense Fund senior counsel told LifeSiteNews.com. “That anyone could believe the Constitution would prevent a woman from seeking justice for the loss of her unborn child just demonstrates how wrong the Roe decision is.” Mattox is a native Alabamian who once clerked at the Alabama Supreme Court.
Ben DuPre, an attorney at the Foundation for Moral Law and director of the Personhood Alabama Project, said this would not overturn or even challenge Roe, since Justice Parker’s was not the majority opinion. Yet he felt the decision “lays a very important precedent here in Alabama for the right of unborn children.”
The Foundation for Moral Law was founded by former Alabama Supreme Court Justice Roy Moore, who became nationally famous for his defense of publicly displaying the Ten Commandments. Justice Parker once served as Special Projects Director at the foundation.
Dana Cody, the president and executive director of the Life Legal Defense Foundation, told LifeSiteNews.com she has long said “Roe is on a collision course with itself, because of advances in science. I hope courts will start looking at the science” when determining the moment life begins, she said.
“From the moment of conception and at all stages of development in the womb, the unborn child is a human being,” Mathew Staver, the founder and chairman of Liberty Counsel, wrote in a statement e-mailed to LifeSiteNews. “The life expectancy of Roe is limited and is being undermined by every other area of law and medicine.”
DuPre said he hoped states would heed the legal reasoning of the court’s ruling and codify its respect for unborn life into law. “States like Alabama should be able to recognize the unique, separate, human life that is an unborn child,” he told LifeSiteNews.com.
“Now, it’s incumbent upon our state to build upon this and to pass legislation that builds upon it to protect unborn life.”
He said he and others support “a constitutional amendment, or even a state statute, that would recognize the unborn child as a person under the law.”