By Jonah McKeown
In what is believed to be the first case of its kind in the United States, an attorney will represent the estate of an aborted child, after the father filed a wrongful death lawsuit on behalf of the six-week old fetus.
Court documents allege that a then-16-year-old Alabama woman obtained a medication abortion in February 2017, despite the protestations of her boyfriend, who says he is the father of the child.
The man subsequently sued the Alabama Women’s Center for Reproductive Alternatives in Huntsville last month, saying that he had wanted to keep the child.
Brent Helms, the attorney representing the father in the lawsuit, told CNA in an interview that the goals of the lawsuit are to ensure that no father has to endure what the defendant has so far endured, and also to protect unborn children in cases of abortion by establishing a right to legal “personhood” for them.
“The issue that we ran into, in the case of ‘personhood,’ there was some incongruency there in that the definition of ‘person’ from conception excluded an aborted child,” Helms said.
“And so one of the goals of this case was to ensure that we were able to establish personhood for the unborn baby.”
Alabama voters approved changes to the state constitution – Amendment 2 – in November 2018 to establish a right to life of unborn children, known as a “personhood clause.” The measure passed with 60 percent support from the public.
In addition to the new constitutional amendment, Alabama has statutes created by the legislature, Helms said, to define “personhood” as beginning at conception. The state also has seven opinions from the Alabama Supreme Court defining personhood as beginning at conception, he said.
None of these, however, have immediate legal effect, due to Roe v. Wade establishing a constitutional “right to abortion” nationally.
The attorney sees this lawsuit as another effort to enshrine personhood in the state.
Helms said he’s already had one indication that the lawsuit could succeed; he successfully set up an estate for the aborted child – identified in court documents as “Baby Roe” – and Probate Judge Frank Barger has allowed the lawsuit to go forward.
“That was the first estate, to my knowledge, ever created in the United States for an aborted child,” he said.
“So we’ve already had one victory, and we’re moving on now to the wrongful death case…Obviously, it’s the first case of its kind ever, and we hope to establish legal precedent.”
In terms of broader implications if the father wins his lawsuit, Helms explained that in the state of Alabama, abortion is a profit-making industry, and in a wrongful death lawsuit the wrongdoer is punished in some way. In this case, the lawsuit names as wrongdoers, the manufacturer of the pill that terminated the unborn baby’s life, as well as the abortion clinic, the doctor, the nurses, all those that participated in the abortion.
If those entities are found liable for the wrongful death of Baby Roe, Helms said, then what was once a profit-making industry will now be subject to liability.
“And the question for them will be, ‘are we more subject to liability than we are to profitability?’ If a drug manufacturer determines that they’re going to be held liable for an abortion in the State of Alabama, I doubt they’re going to send any kind of pills to Alabama for an abortion,” Helms speculated.
“So I would think their conclusion would likely be that liability outweighs profitability, and therefore, abortion is eliminated in the State of Alabama. It’s just a simple business decision.”
Prominent pro-abortion groups such as NARAL Pro-Choice America have spoken out against the lawsuit and the implications for legal personhood for aborted fetuses.
Eric Johnston, a fellow attorney and president of the Alabama Pro-Life Coalition, told CNA that while he doesn’t “disagree in principle” with what Helms is doing, he is worried that the lawsuit will not succeed unless the U.S. Supreme Court overturns the 1973 decision that found a constitutional right to abortion.
While the lawsuit is currently in a state court, he said, if the abortion clinic or the drug company can successfully move it to Federal Court, it will be “rejected in pretty short order.” If it stays in the state system, he said, even the Alabama Supreme Court is unlikely to rule in favour of the father.
“That case is not going to be upheld until Roe v. Wade is reversed,” Johnston told CNA. “I really don’t think that that approach is an approach that will get to the U.S. Supreme Court.”
Johnston said putting together the right lawsuit to challenge a longstanding precedent like Roe v. Wade is extremely difficult. He said he thinks laws passed by states, that directly challenge Roe v. Wade and are designed to be reviewed in the Supreme Court, are more likely to succeed.
“The Court has ruled in the past that the father of the child does not have a right over the unborn child, that it’s the woman’s right, and that’s based on the idea that abortion is legal,” Johnston explained.
“So, I don’t think that the claiming of wrongful death damages by a father is the right set of circumstances that would cause the Supreme Court [to hear the case] to review Roe v. Wade. I just don’t think that’s the right approach for it. I just don’t think it’s going to fly.”
Johnston said as long as Roe v. Wade gives the woman the right of privacy to have an abortion, then there is not a wrongful death cause of action, regardless of Alabama law.
“The Alabama Constitution does not supersede or overrule the U.S. Constitution,” Johnston said.
“And under Roe, they have held that the U.S. Constitution permits abortion. So it’s irrelevant what the Alabama Constitution says and it’s irrelevant what the Alabama Supreme Court has said in several cases.”
Helms is more hopeful. “We’re in uncharted territory, and we’re trying to do the best we can to navigate through it. But that also means the other side is in the same uncharted territory,” he said.
“We’re obviously excited about the opportunities that this may present for future fathers who are in the same position as [this father].”
Helms said protecting life is a particularly important issue for his family – he’s the father of seven children.
“When my mom was pregnant with my brother, the doctor told her that your health is such that either you or the baby is going to die, and my mom said ‘Well, if the Lord wants one of us or both of us he’ll take us,’” Helms reflected.
“And so she refused to have an abortion, and had my brother. He’s the smartest and best-looking of the bunch, an so we’re grateful to have him. So yes, [the pro-life issue] does hit home, and my wife and I have been blessed and we’re grateful to have such a large family.”