In a decision Friday, the Alabama Supreme Court questioned the fetus viability standards set out by the United States Supreme Court in Roe v. Wade. The decision was written by Justice Tom Parker, and Justices Alica Kelly Wise, Mike Bolin, Lyn Stuart concurred with the opinion.
In 2006 plaintiff Amy Hamilton sued Dr. Warren Scott and the Isbell Medical Group claiming that their negligence had caused the wrongful death of her unborn son. Hamilton had suffered from “fifths disease” and the flu, causing her unborn child to die. Lower courts agreed with defendants that a wrongful death claim could not apply to a non-viable fetus, an unborn baby that could not survive outside the womb.
In its decision Friday, the state Supreme Court disagreed and remanded the case back to the lower court.
In his concurrent opinion, Justice Parker attacked the fetus viability standard established by Roe v. Wade. Alabama’s wrongful death statute applied to a fetus, regardless of viability, Parker said.
Roe’s viability rule 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. And together, 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.” For these reasons, Roe’s viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court.