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Alabama Court decision casts doubt on Roe v Wade
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Alabama Court decision casts doubt on Roe v Wade

February 22, 2012, 4:20 pm
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Viability relevant only in privacy cases
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A few years ago Investigators working on the case of a mother who allegedly hid several tiny bodies around her home found themselves facing a tough legal hill. They found four sets of pre-term infants remains hidden in various places in the suspected woman’s home. But they could not just arrest and prosecute the suspect, 37 year old Christy Freeman. Investigators first had to determine whether all four bodies were the offspring of Freeman. Then investigators needed to find out how old the other pre-term infants were when they died, and whether Freeman or someone else was responsible for their dying before birth.

There is no statute of limitation on murder, so why should it matter when the infants died? This would not matter if the victims had been full term infants or full grown adults. But the timing in this instance was critical. If the pre-term infants were too young to be considered viable outside the womb, Ms. Freeman could not be charged with murder. And if they were old enough to live outside the womb, but died before Maryland passed its 2005 fetal homicide law, it may not be a crime even if Freeman caused their deaths.

The Roe v Wade defense

Since Roe a woman has had the legal right to terminate her pregnancy before the fetus became viable.  So unless investigators could show that the pre-term fetuses found in Ms. Freeman’s home were viable when they died, then they had no case against her. What is puzzling is that she could face murder charges if the infants were not her own, because the right to terminate the pregnancy is the mother’s right not hers.

The debate over   rights of unborn infants is not new. It has been a hot button issue since the Supreme Court legalized   abortions in its 1973 Roe v Wade decision.  Every year pro-life and pro-choice advocates vie for the upper hand in this contentious issue.  In recent years, states have expanded this debate to include the issue of fetuses killed by violent acts against pregnant women. 38 states now have fetal homicide laws that make it unlikely that someone like Freeman would escape a murder charge.

The Alabama Case casts doubt on Roe


The Alabama Supreme may have put this issue to rest.  It ruled unanimously last Friday that a woman has the right to pursue a wrongful death claim against her doctors on behalf of her unborn child. Whenever the death of a person, including an unborn child in utero at any stage of gestation, is caused by the wrongful act, neglect, or default ... the person who would have been liable if death had not ensued, is liable in an action for damages.

States are forbidden to protect unborn children only in ways that conflict with a woman's " right of privacy...this encompasses a woman's decision whether or not to terminate her pregnancy." Unless a state's law conflicts with a woman's "right" to an abortion, the state law does not conflict with Roe, and whether or not the infant is viable becomes an irrelevant issue.

Ms. Freeman would be guilty in Alabama. Because now, says the court the unborn has a status distinct from the woman’s and would not need to prove that the unborn was viable. There would be an inherent conflict in giving the mother the right to terminate the pregnancy yet holding that an action may be brought on behalf of the same fetus under the wrongful death act. But perhaps Ms freeman’s defense would then be that she was exercising her right of privacy, because even in Alabama, a woman still has the right to terminate  her pregnancy under Roe. 

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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