"Medical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development." -Justice Tom Parker
(Montgomery, Alabama)—In a landmark legal case that established the right of a mother to sue if her unborn child wrongfully dies before viability, today the Alabama State Supreme Court unanimously ruled that "each person has a God-given right to life."
A concurring opinion issued by four judges specifically stated that Roe v. Wade's viability standard "should be rejected by other states until the day it is overruled by the United States Supreme Court."
Amy Hamilton sued after doctors repeatedly failed to administer ultrasounds. When an eventual ultrasound showed her child was unusually small and had developed a small fold at the back of his neck—a possible sign of severe anemia and hydrops, which can cause congestive heart failure—she requested to be referred to a perinatologist at another clinic but was refused.
On March 10, 2005, her son was stillborn.
A lower court had ruled that, since the child had not yet reached the stage that it could survive outside the womb, she could not pursue a wrongful death claim "for the death of [her] non-viable fetus."
Today, the Alabama Supreme court's Hamilton v. Scott ruling rejected that understanding, which was based on Roe v. Wade. Instead, it cited the 1973 Alabama Supreme Court decision Wolfe v. Isbell, which ruled "that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother."
In footnote three, the justices quoted the Alabama state constitution before concluding that its "words, borrowed from the Declaration of Independence—affirm that each person has a God-given right to life."
In his concurring opinion joined by three fellow justices, Justice Tom Parker stated, "I write separately today—to emphasize the diminishing influence of Roe's viability standard," which he described as "arbitrary," "incoherent," "based on inaccurate history," and "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," he wrote. As such, the belief that women should not be able to sue if their unborn child is below an ever-changing medical standard "should be universally abandoned" and "rejected by other states until the day it is overruled by the United States Supreme Court."