An Alabama judge has recognised the legal rights of an aborted foetus, allowing a man whose girlfriend ended her pregnancy at six weeks to sue the manufacturer of the pill she used and the clinic that gave it to her.
The decree, issued by Madison County probate judge Frank Barger, explicitly states that “Baby Roe” is a person and allows plaintiff Ryan Magers to name the foetus as a co-plaintiff in the suit for “wrongful death”.
Mr Magers, 19, said in court filings that when his girlfriend discovered she was pregnant in early 2017, he “repeatedly pleaded” with her to carry the pregnancy to term and give birth, but she wanted to have an abortion. His lawyers say that the case is the first of its kind in the US.
“It’s the first time in the country that an aborted foetus has been recognised as having legal rights,” Mr Magers’ attorney Brent Helms told Alabama local news outlet WHNT 19.
Abortion-rights groups expressed alarm, saying Judge Barger’s decision sets a dangerous precedent.
It comes at a time when the idea of “foetal rights” – which recognises embryos and foetuses as separate from the women who carry them – is gaining currency in legislatures, courts and law enforcement agencies.
In one New Jersey case, a mother lost custody of her child when she had a vaginal birth instead of the C-section her doctors insisted was necessary.
In others, pregnant women who drank or took drugs – either illegal or prescribed – and then had miscarriages were accused of child abuse.
And dozens of states have passed foetal homicide laws that treat the unborn as a separate entity from the woman carrying them.
Ilyse Hogue, president of Naral Pro-Choice America, tweeted on Tuesday that the Alabama lawsuit is a “very scary case”. It asserts that a woman’s rights are “third in line” after the rights of a man who impregnates her and the foetus she aborts, she said.
“It has the potential to be used in other states, and it’s part of abortion opponents being emboldened ... and conservatives turning over every rock to see how they can ban abortion,” said Elizabeth Nash, who studies state legislation at the Guttmacher Institute, which supports abortion rights.
Legal experts say the case highlights the high stakes for abortion if a new conservative majority on the US Supreme Court should strike down Roe v Wade.
University of San Diego law professor Dov Fox said the high court has been clear that foetuses are not people and that a woman’s views on abortion trump her partner’s because she is the one to carry and deliver the baby.
But if foetuses are recognised as having rights equal to the women carrying them, it would open up tough legal and ethical questions.
“The implications would revolutionise our ability to use reproductive technologies, to access contraception – and potentially impose all kinds of restrictions on lives and freedoms of pregnant women,” Mr Fox said.
Arthur Caplan, a professor of bioethics at New York University, Langone, said the cases are “chipping away at the framework that allows abortion, by trying to protect foetal life and drawing a moral equivalency between a foetus and newborn”.
However, he said, “biological development matters in terms of how we treat an embryo or a foetus legally and morally,” which is why even many Americans who support abortion rights feel uncomfortable with the idea of third-trimester abortions.
Mr Magers’ case names the Alabama Women’s Centre for Reproductive Alternatives in Huntsville and an unknown pharmaceutical company that makes and distributes “a pill designed to kill unborn children” as defendants.
Hannah Ford, a spokesperson for Personhood Alabama, an anti-abortion group that has been assisting in the suit, said in a statement that Baby Roe “was cruelly robbed of life and silenced before entering the world or being able to personally voice complaint in court”.
Dalton Johnson, owner and administrator of the Alabama Women’s Centre, said he felt like this kind of case was “unprecedented, and we are assembling our legal team”.
The father of the woman in the lawsuit – who asked that his and his daughter’s names not be used, to protect their privacy – said his “family is really distraught”. He said his daughter was 16 and a high school senior, and Mr Magers was 19 and unemployed when they discovered that she was pregnant.
“We had a long discussion over what she was going to do when she got pregnant. And we said we would support her either way,” he said, adding: “They weren’t married, and I felt, legally, it was her right to make that decision.”
He said his daughter and Mr Magers are no longer together.
The lawsuit is part of a series of efforts by anti-abortion activists to elevate the moral and legal status, or “personhood”, of a foetus, embryo or even a fertilised egg, to that of a person.
Last year, voters in Alabama – one of the most conservative states in the country when it comes to abortion – passed an amendment to the state’s constitution that recognises the rights of the unborn with a 59 per cent yes vote.
Gualberto Garcia Jones, president of the Washington-based Personhood Alliance, said on Wednesday that he is “very hopeful that Alabama will continue to lead the country in standing up for the rights of the pre-born”.
In addition to Alabama, Kansas and Missouri have personhood language on the books, and Louisiana passed a 1986 law that gives embryos the status of a “juridical person”. But many other efforts have been unsuccessful.
A 2011 legal challenge to embryonic stem-cell research based on the personhood argument was dismissed when a judge demanded more information about the “identity” of the individual embryo.
And a highly publicised dispute involving actress Sofia Vergara and her ex-fiance Nick Loeb over their two frozen embryos – stored in California – has continued for years in Louisiana without resolution. (Mr Loeb wants to use them and has named them Emma and Isabella and set up a trust fund for them, while Ms Vergara does not want to use them.)
Adrienne Kimmell, the Naral Pro-Choice America vice president, called such efforts “chilling” to women’s rights.
“It represents the real-life consequences of anti-choice ‘personhood’ policies,” she said, “which, by design, seek to demote the fundamental rights of women, and are a stepping stone in the anti-choice movement’s ultimate goal of criminalising abortion and punishing women.”
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