Alabama jus­tice says mur­der rul­ing ques­tions Roe Slain woman’s fe­tus de­fined as ‘per­son’

The Washington Times Weekly - - National - BY ALEX SWOYER

As the Alabama Supreme Court up­held the state’s fe­tal homi­cide law in a rul­ing last month, one of the jus­tices said the de­ci­sion should force the U.S. Supreme Court to re­visit its 1973 Roe v. Wade rul­ing.

Jus­tice Tom Parker said it is a “log­i­cal fal­lacy” for the gov­ern­ment to con­sider a fe­tus a life for the pur­poses of a mur­der con­vic­tion but not when it comes to a woman de­cid­ing to end her preg­nancy.

Even lawyers within the pro-life com­mu­nity were con­flicted on whether that is the kind of chal­lenge the high court would — or even should — take up, but they said the dis­so­nance be­tween abor­tion ju­rispru­dence and other ar­eas of law, where a fe­tus is granted many of the at­tributes of per­son­hood, is be­com­ing ten­u­ous.

“Fe­tal homi­cide laws ac­knowl­edge what sci­ence has al­ready proven: that a unique hu­man life be­gins at the very mo­ment of fer­til­iza­tion. Abor­tion laws re­ject that re­al­ity,” said Lila Rose, a prom­i­nent pro­life ad­vo­cate and pres­i­dent of Live Ac­tion.

The case in Alabama in­volved Jessie Liv­ell Phillips, who was con­victed of killing his wife when she was eight weeks preg­nant.

A jury found him guilty of mur­der of “two or more per­sons” by one act, us­ing a 2006 law that de­fined “per­son” as in­clud­ing a child in utero. The court sen­tenced him to death.

He ap­pealed his death sen­tence, ar­gu­ing that an un­born child is not a per­son with in­de­pen­dent pro­tec­tions and that he there­fore couldn’t be con­victed of a dou­ble killing. The state Supreme Court re­jected his case and up­held his death sen­tence, cit­ing the state’s in­ter­est in pro­tect­ing the life of both the born and un­born.

Thirty-eight states have laws specif­i­cally aimed against vi­o­lence on preg­nant women and their un­born chil­dren. Mas­sachusetts’ law dates as far back as 1973, the year of the Roe v. Wade de­ci­sion. In­di­ana is the most re­cent; its law was en­acted just this year.

Like other states, Alabama’s 2006 law specif­i­cally carves out a woman’s de­ci­sion to ter­mi­nate her preg­nancy as an ex­cep­tion to fe­tal pro­tec­tions. Jus­tice Parker called that the “Roe ex­cep­tion.”

“I urge the Supreme Court of the United States to re­con­sider the Roe ex­cep­tion and to over­rule this con­sti­tu­tional aber­ra­tion. Re­turn the power to the states to fully pro­tect the most vul­ner­a­ble among us,” he wrote in his con­cur­ring opin­ion.

Some pro-choice ad­vo­cates agree that there is an in­con­sis­tency but want to go the other way by cur­tail­ing laws pro­tect­ing fe­tuses. Ad­vo­cates say the laws don’t pro­tect women against vi­o­lence and can give states more av­enues to in­ter­fere with women’s rights.

Lynn Pal­trow, ex­ec­u­tive di­rec­tor of Na­tional Ad­vo­cates for Preg­nant Women, cited the cases of a woman who was ar­rested on at­tempted-feti­cide charges after ac­ci­den­tally fall­ing down a stair­well, a woman who served eight years in prison for a still­birth after a pos­i­tive test for il­le­gal drugs, and a woman who was ar­rested after los­ing her child fol­low­ing a sui­cide at­tempt.

“The real ques­tion is in what man­ner can women be de­prived of their stand­ing as con­sti­tu­tional per­sons?” Ms. Pal­trow said.

Yet state laws also have served to give women more of a chance to pur­sue dam­ages. In the 2012 Alabama rul­ing, the state Supreme Court said an in­jured woman could pur­sue a wrong­ful death claim for her un­born child.

In that case, Jus­tice Parker again said those sorts of state de­ci­sions chal­lenge the un­der­pin­nings of Roe.

In a 2013 case, he wrote the court’s opin­ion al­low­ing the state to use its chem­i­cal en­dan­ger­ment statute to pros­e­cute preg­nant moth­ers for en­dan­ger­ing their fe­tuses through drug use. He also wrote a sep­a­rate opin­ion to chide Roe again.

In his lat­est opin­ion this month, Jus­tice Parker pointed to other cases in which judges have found the un­born can be par­ties to es­tate set­tle­ments and dis­putes over trusts, and in which courts have ap­pointed le­gal guardians for the fe­tuses to rep­re­sent their in­ter­ests in those cases.

At least 23 of the more than 30 states that have the death penalty pro­hibit preg­nant women from be­ing put to death, sus­pend­ing their sen­tences un­til the child is born.

“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,” Jus­tice Parker ar­gued in 2013.

There is an­other ex­cep­tion, though. A judge in Ari­zona ruled that a fe­tus did not count as a “per­son” for a preg­nant woman to use the HOV lane in 2006.

A po­lice sergeant told reporters at the time that if the judge had ruled the other way, po­lice of­fi­cers would need to carry preg­nancy tests with their guns and ra­dios.

Jus­tice Parker’s plead­ing not­with­stand­ing, some pro-life ad­vo­cates say fil­ing fe­tal homi­cide cases isn’t the best way to force the na­tional high court to re­visit Roe.

Clarke Forsythe, se­nior coun­sel for Amer­i­cans United for Life, said the jus­tices have faced cases sim­i­lar to Phillips’ ar­gu­ment since the 1990s.

“They have uni­formly re­fused to touch on these is­sues in the past,” Mr. Forsythe said.

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