The Legal Argument that Allowed an Aborted Child to Sue Her Own Killers

In March of 2019, Personhood Alabama made headlines worldwide when a judge granted their request to allow a father to represent an aborted child in a wrongful death suit against the clinic that had killed her.  The suit was eventually dropped at the request of the father who faced an incredible amount of backlash from the community, but it remains the only case in American history to win the right for an aborted child to sue her killers. 

I was serving as the president of Personhood Alabama at the time of this suit, and although I am not an attorney, the argument presented was based on one that I had drafted in 2015.  My argument was reviewed by our own attorneys as well as several attorneys from the Alliance Defending Freedom before we began our search for a plaintiff willing to go to court.
 
Here is my initial outline of the argument that made this case possible:

• Under Alabama law, the child is a person in utero at all stages of development.
  1. “PERSON. The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability.”  Brody’s Law – §13A-6-1

 

• If the prenatal child is a person, then his right to life is inviolate.
  1. “That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” AL Constitution – Section 1
  2. “Rights of persons … he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law” AL Constitution – Section 6
  3. “we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.” AL Constitution – Section 36
  4. “The public policy of the State of Alabama protects the unique rights of its citizens beginning with Article I, Section 1 of the Constitution of Alabama of 1901, guaranteeing the equality and rights of men. Except as permitted by due process of law and the right of the people to vote for self-determination, the rights, privileges, and immunities of the citizens of the State of Alabama are inviolate.” – AL Constitution – Amendment 884

 

• The Constitution of Alabama guarantees that the courts of Alabama will be open to every person to provide remedy by the due process of law for any injury sustained against his person.
  1. “That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.” AL Constitution – Section 13

 

• The exemption for abortion procedures provided in Brody’s Law is a violation of the prenatal person’s inalienable right to life and a denial of his right to remedy by due process of the law.
  1. “Nothing in Article 1 or Article 2 shall permit the prosecution of (1) any person for conduct relating to an abortion for which the consent of the pregnant woman or a person authorized by law to act on her behalf has been obtained or for which consent is implied by law or (2) any woman with respect to her unborn child.” – §13A-6-1(d)
  2. “Nothing in this section shall make it a crime to perform or obtain an abortion that is otherwise legal. Nothing in this section shall be construed to make an abortion legal which is not otherwise authorized by law.” §13A-6-1(e)

 

• The “right” to an abortion provided in Roe is a violation of the public policy of the State of Alabama and should be treated as foreign law.
  1. “The public policy of the State of Alabama protects the unique rights of its citizens beginning with Article I, Section 1 of the Constitution of Alabama of 1901, guaranteeing the equality and rights of men. Except as permitted by due process of law and the right of the people to vote for self-determination, the rights, privileges, and immunities of the citizens of the State of Alabama are inviolate.”  AL Constitution – Amendment 884(b)(4)
  2. “Different from the law of the State of Alabama is foreign law, which is any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.”  AL Constitution – Amendment 884(b)(5)
  3. “The public policy of this state is to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the Alabama Constitution or of the United States Constitution, including, but not limited to, due process, freedom of religion, speech, assembly, or press, or any right of privacy or marriage.”  Amendment 884(b)(7)
  4. “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”  AL Constitution – Amendment 884(c)
  5. “The public policy of the State of Alabama is to protect life, born, and unborn.” Code of Alabama §26-22-1(a)
  6. “The Legislature further finds the public policy of the State of Alabama is to respect life and provide safeguards to protect life in the criminal, health, and other laws of the State of Alabama; that in respecting and protecting life, there is included the unborn life of a child whose life may be subject to termination before birth by abortion and that when the mother of the unborn life is a minor who seeks an abortion through the judicial by-pass procedure, it is the interest of the State of Alabama to not only establish and protect the rights of the minor mother, but also to protect the state's public policy to protect unborn life” Code of Alabama §26-21-1

 

• Alabama is not required to give full faith and credit to the opinion of the Roe Court.
  1. “Article IV, Section 1, of the United States Constitution provides that full faith and credit shall be given by each state to the public acts, records, and judicial proceedings of other states. Provided, however, when any such public acts, records, and judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama is not and shall not be required to give full faith and credit thereto.”  AL Constitution – Amendment 884(b)(8)
  2. “Where the public acts, records, or judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama shall not give full faith and credit thereto.”  AL Constitution – Amendment 884(i)

 

• The Roe Court’s recognition of a “right” to abortion is no longer applicable to Alabama.
  1. “The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” Roe v. Wade
  2. “PERSON. The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability.”  Brody’s Law – §13A-6-1
  3. “The rights of life and personal liberty are natural rights of man. ‘To secure these rights,’ says the Declaration of Independence, ‘governments are instituted among men, deriving their just powers from the consent of the governed.’ The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these ‘unalienable rights with which they were endowed by their Creator.’ Sovereignty, for this purpose, rests alone with the States.” United States v. Cruikshank
  4. “The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Reed v. Reed
  5. "'Alabama law, unlike the statutory schemes in some of these states, does not provide for separate treatment for crimes committed against unborn children. Instead, it expressly includes an unborn child within the definition of 'person' in its criminal homicide and assault statutes. Thus, in Alabama, violent crimes committed against unborn children are prosecuted under the same provisions as violent crimes committed against adults and children who have been born.'" State Brief Cited with Approval in Ankrom v. Alabama
  6. "Roe has sometimes been misread as holding that those unborn children are not persons and do not have the same fundamental rights as does every other person, which rights must be protected by the law.  As I explained in Hamilton v. Scott, 97 So. 3d 728, 737 (Ala. 2012 ) (Parker, J., concurring specially, joined by Stuart, Bolin and Wise, JJ.), nothing could be further from the truth. I concur in the decision of the Court today, which I authored.  I write specially to emphasize that this decision ... is consistent with many statutes and decisions throughout our nation that recognize unborn children as persons with legally enforceable rights in many areas of the law." Concurring Opinion of Justice Parker in Ankrom v. Alabama
  7. "The decision of this Court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law.  Today, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of Roe." Concurring Opinion of Justice Parker in Ankrom v. Alabama
  8. "The homicide statute 'defines 'person' to include an 'unborn child.'  The legislature has thus recognized under that statute that, when an 'unborn child' is killed, a 'person' is killed.'"  Concurring Opinion of Justice See in Ziade v. Koch quoted with approval in Concurring Opinion of Justice Parker in Hamilton v. Scott
  9. "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."  Concurring Opinion of Justice Parker in Hamilton v. Scott
  10. "The viability standard adopted in Roe was dictum ... It was not a part of either the Texas statute addressed in Roe or the Georgia statute addressed in Doe v. Bolton ... In fact, the viability standard was adopted in Roe without any evidentiary record and was not discussed in the briefs or arguments."  Concurring Opinion of Justice Parker in Hamilton v. Scott
  11. "Quite simply, the use of viability as a standard in prenatal-injury or wrongful-death law is incoherent."  Concurring Opinion of Justice Parker in Hamilton v. Scott

 

• The prenatal child’s rights to life and due process supersede the contractual agreement between the mother and the abortionist.
  1. “Any contractual provision or agreement incapable of being modified or amended in order to preserve the constitutional rights of the parties pursuant to the provisions of this amendment shall be null and void.”  AL Constitution – Amendment 884(f)

 

• Abortion is an actionable cause for a wrongful death suit because the deceased child would have had cause for action as a result of his injuries had he survived the abortion.
  1. “A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama where provided for in subsection (e), and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or her or their servants or agents, whereby the death of the testator or intestate was caused, provided the testator or intestate could have commenced an action for the wrongful act, omission, or negligence if it had not caused death.”  Code of Alabama §6-5-410
  2. “an action may be maintained for prenatal injuries negligently inflicted if the injured child is born alive.” Jorgensen v. Meade Johnson Labs
  3. “In Huskey, our Supreme Court explained …  that a wrongful-death action based on prenatal injuries to a child who had reached the stage of viability was appropriate … that ‘the right to maintain an action for the wrongful death of an unborn child depends on the right of the particular child, if he had survived, to maintain an action for injuries sustained,’” L.K.D.H. v. Planned Parenthood
  4. “Despite the apparent distinction between Elliott and the present case, and despite the import of the Supreme Court's reservation language in Elliott as quoted and emphasized above, Planned Parenthood argues that the reservation language in Elliott is inapplicable because if the abortion procedure had been ‘successful’ J.L.D. would not have been born, i.e., ‘normal birth would probably [not] have occurred.’   We find Planned Parenthood's position disturbing.   According to Dr. Davis's affidavit, when an abortion provider properly performs an abortion procedure, i.e., is not negligent, ‘particularly during an early gestation period, such as in the case here, it is not uncommon for there to be a continuing pregnancy.’  (Emphasis added.)   In light of the ‘not uncommon’ possibility that a child will survive even a properly performed abortion procedure, it is untenable for Planned Parenthood to argue that it should be able to avoid liability to the child who is thereafter born no matter how deficient the abortion provider's actions or how serious the harm the provider might cause to the child.”  L.K.D.H. v. Planned Parenthood
  5. “the clear purpose of this statement by our Supreme Court was to specifically and expressly hold open the possibility that a medical provider might indeed be liable when it causes a child to be born with abnormalities that the child would not have had in the absence of the provider's wrongful conduct.”  L.K.D.H. v. Planned Parenthood
  6. “Neither the United States Supreme Court nor the Supreme Court of Alabama has ever ruled that a medical provider, or for that matter a mother, can engage, with some blanket of constitutional protection, in negligent or reckless conduct that deforms or injures a child so long as the deformity or injury is inflicted on the child before it leaves the womb.   To embrace this position as the law of the land in Alabama would give license to those who would undertake to end the life of an unborn child to do so as carelessly or recklessly as they wish without bearing any responsibility to those who are injured or deformed as a result and who are left to cope with the consequences of the provider's wrongful acts.   It would be hard to imagine a more troubling development in our law.”  L.K.D.H. v. Planned Parenthood
  7. “From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as human being, but as such from the moment of conception—which it is in fact.” Bonbrest v. Kotz
  8. “Medically speaking, Donna was viable from the instant of conception onward. An action for damages could have been brought in her behalf for injuries she might have received prior to birth.” Wagner v. Finch
  9. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. . . . The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”  Marbury v. Madison

 

• Alabama’s regulations regarding abortions do not create a right to abortion.
  1. “Nothing in this chapter shall be construed to recognize a right to abortion or to make legal an abortion that is otherwise unlawful.” Code of Alabama §26-22-5
  2. “Nothing in this chapter shall be construed as creating or recognizing a right to abortion. It is not the intention of this chapter to make lawful an abortion that is currently unlawful”  Code of Alabama §26-23A-12
  3. “An abortion that complies with this chapter but violates the provisions of Section 26-22-3, Section 26-23-3, or any otherwise applicable provision of Alabama's law shall be deemed unlawful as provided in such provision. An abortion that complies with the provisions of Section 26-22-3, Section 26-23-3, or any otherwise applicable provision of Alabama's law regulating or restricting abortion but violates this chapter shall be deemed unlawful as provided in this chapter.” Code of Alabama §26-23B-9
  4. “Nothing in this chapter shall be construed as creating or recognizing a right to abortion … It is not the intention of this chapter to make lawful an abortion that is currently unlawful.”  Code of Alabama §26-23C-4
  5. “Nothing in this chapter shall be construed as creating or recognizing a right to abortion … It is not the intention of this chapter to make lawful an abortion that is currently unlawful.”  Code of Alabama §26-23E-16

 

• Abortion is still listed as a criminal offense against the family in Alabama law.
  1. “Any person who willfully administers to any pregnant woman any drug or substance or uses or employs any instrument or other means to induce an abortion, miscarriage or premature delivery or aids, abets or prescribes for the same, unless the same is necessary to preserve her life or health and done for that purpose, shall on conviction be fined not less than $100.00 nor more than $1,000.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than 12 months.” Code of Alabama §13A-13-7