When the DeKalb Circuit Court sided with the doctors, Hamilton appealed her case and on Friday, Feb. 17, the Alabama Supreme Court unanimously held that Hamilton could pursue a wrongful death against the doctors even though her child had died prior to being able to live outside of her womb.
In an additional concurrence, joined by three other justices, Alabama Supreme Court Justice Tom Parker, wrote:
Today, this Court reaffirms that the lives of unborn children are protected by Alabama’s wrongful-death statute, regardless of viability. I write separately to explain why the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), does not bar the result we reach today and to emphasize the diminishing influence of Roe’s viability standard. Because Roe is not controlling authority beyond abortion law, and because its viability standard is not persuasive, I conclude that, at least with regard to the law of wrongful death, Roe’s viability standard should be universally abandoned.
I recommend the entire opinion to anyone needing a boost of confidence in the common sense of our courts. Justice Parker expects the decision will “engender screams of anger from the Left,” but his hope is that “it will cause Constitutionalists to write thoughtful and scholarly responses, and, in short, spark a new national debate about Roe.”
The mere fact that we should even have to pause to question whether the emanations of penumbras of the Bill of Rights prohibits a woman from seeking justice for the death of her pre-born child demonstrates how terrible a decision Roe v. Wade was. How devoted are Roe’s most faithful worshippers? They would deny a woman justice for her wanted child because that might reveal the feebleness of Roe’s logic for constitutionalizing another woman’s right to kill her unwanted child.
To be sure, the pro-abortion crowd is right. Acknowledging a woman’s right to recover against someone who takes the life of her wanted pre-born child certainly does undermine the “logic” of Roe, such as it were, that unborn children only become persons when born. It says a lot about the supposedly “pro-woman” abortion rights advocates that they would rather side with those who deliberately or negligently kill a woman’s wanted preborn child than undermine their sacrosanct right to take a pre-born child’s life themselves.
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