Casey Mattox

When Amy Hamilton’s pre-born son died, as a result of what she believed were “negligent acts” by doctors in Dekalb County, Alabama, she sought justice by filing a wrongful death suit. (Alabama law provides recovery for a mother whose preborn child is killed because of another’s negligence.) But Amy faced an obstacle, Roe v. Wade.

Although Amy could feel him moving, her son was not “viable” at the time he died, or so the argument went. And Alabama lacked an interest in protecting his preborn life because doing so would be inconsistent with Roe’s trimester framework and its constitutional right to an abortion. That’s right. In other words, women like Amy should not be able to seek justice for the wrongful death of a preborn child because allowing her to do so might negatively impact others’ ability to deliberately kill their preborn children. Such is the contorted reasoning of Roe and its defenders.

State courts in California, Michigan and several others have used this “women’s rights” rationale to prevent women from seeking justice for the unwanted death of their children. Others have limited a woman’s right to sue only for the death of a viable child, as if the loss is any less to the woman who loses her child before viability. The usual pro-abortion suspects have also opposed laws empowering women to seek justice for their preborn children.

When the federal Unborn Victims of Violence Act was signed into law by President Bush, a Democratic National Committee press release said the law “will weaken women’s constitutional rights by giving separate legal personhood to a fetus, equal to that of the pregnant woman, thus attempting to undermine the legal basis for the Supreme Court decision in Roe vs. Wade.” NARAL, NOW, the ACLU, and Planned Parenthood also strongly opposed this supposed assault on women’s rights.

But Amy’s son was wanted. According to the opinion, when Hamilton visited the doctors' office on March 10, 2005, worried that she didn’t feel her child moving, she was finally given the ultrasound she’d been denied three times prior. The ultrasound showed that the child had died within the previous 24-48 hours, and labor was induced. Her son was stillborn.

Casey Mattox

Casey Mattox is senior counsel with Alliance Defending Freedom