In November 2018, voters in the state of Alabama approved an amendment to the state’s constitution to make it state policy to "recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life." Now a probate judge in Madison County in the northern part of the state has ruled that a fetus is a person with legal rights, and that the so-called estate of an aborted fetus has standing to participate in legal activities. The ruling is another advance in Alabama’s efforts to eliminate abortion access entirely should Roe v. Wade be overturned.
The ruling by Probate Judge Frank Barger comes in connection with a wrongful death lawsuit filed by a man named Ryan Magers last month against the Alabama Women’s Center, a women’s health clinic in Huntsville that is one of the last three facilities in the state that provide abortion care. Magers’ girlfriend had gone to the center to obtain an abortion in 2017; Magers argues that he had tried to dissuade her from having the procedure and wanted her to go through with the pregnancy, but that she had the abortion against his wishes.
The lawsuit states that “Under Alabama law, an unborn child is a legal person,” and includes as defendants, in addition to the health center and its owners and employees, the “Unknown Pharmaceutical Company” that manufactured the medicine the woman was given at the health center to induce abortion. With the probate court’s declaration that the aborted fetus is “a person with legal rights,” its estate is now included as a plaintiff in the lawsuit, which lists the fetus as “deceased child” Baby Roe. Magers’ attorney, Brent Helms, says that, as far as he knows, this is the first time an aborted fetus has been recognized this way in the United States.
In a state that NARAL Pro-Choice America classifies as having severely restricted access to abortion care, and that regularly falls near or at the bottom of rankings of states by such measures as rates of infant mortality and access to health care, the focus of local Republican-led governments and anti-choice activists is preparing Alabama’s legal landscape to make it possible to ban abortion entirely and immediately if Roe v. Wade is overturned. Lost in the shuffle, of course, is any concern for the health and well-being of people of childbearing age in the state.
The so-called trigger ban now enshrined in the Alabama constitution includes no exceptions: As Vox reported immediately after the vote to approve the amendment in November, “The amendment doesn’t actually do anything while Roe remains in effect. But if the decision were to be overturned, Amendment 2 would ban abortion statewide. The measure has no exceptions for rape, incest, or a threat to the mother’s life.” But with the probate judge’s ruling in Alabama, the “personhood” of a fetus has become an anti-choice weapon in the state even while Roe v. Wade remains the law of the land. The lawsuit and the expense and effort required to fight it are direct attacks on the ability of the Alabama Women’s Center to provide abortion care to its patients.
The Alabama Women’s Center has operated in Huntsville since 2001. Dr. Yashica Robinson, who has been working at the clinic since 2005 and is the only known abortion provider in Alabama with hospital admitting privileges, continues to provide care to vulnerable patients despite the official and unofficial obstacles many Alabamians work hard to put in her way, and the personal risks and sacrifices she must take on every day. As restrictions on abortion care access in Alabama increase, Dr. Robinson is on the front lines of the fight to keep abortion care legal, accessible, and safe.