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Roe v. Wade's 'Viability' Argument Not Viable

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

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.

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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