The Washington PostDemocracy Dies in Darkness

Alabama judge allows man to sue clinic on behalf of aborted fetus

The decision, described as a first, hinges on the state’s ‘personhood’ law recognizing legal rights of the unborn.

Antiabortion activists are pressing “fetal rights” in state legislatures and in litigation. (Carolyn Van Houten/The Washington Post)

An Alabama judge has recognized the legal rights of an aborted fetus, allowing a man whose girlfriend ended her pregnancy at six weeks to sue the manufacturer of the pill she used and the clinic that gave it to her.

The decree, issued by Madison County Probate Judge Frank Barger, explicitly states “Baby Roe” is a person and allows plaintiff Ryan Magers to name the fetus as a co-plaintiff in the suit for “wrongful death.” Magers said in court filings that when his then-girlfriend discovered she was pregnant in early 2017, he “repeatedly pleaded” with her to carry the pregnancy to term and give birth, but she wanted to have an abortion.

Abortion rights groups expressed alarm, saying the Alabama judge’s decision last month sets a dangerous precedent at a time when the idea of “fetal rights” — which recognize embryos and fetuses as separate from the women who carry them — is gaining currency in state legislatures, courts and law enforcement agencies. In one New Jersey case, a mother lost custody of her child when she had a vaginal birth instead of the C-section her doctors insisted was necessary. In others, pregnant women who drank or took drugs — both illegal and prescribed — and then had miscarriages were accused of child abuse. And dozens of states have passed fetal homicide laws that treat the unborn as a separate entity from the woman carrying them.

Ilyse Hogue, president of NARAL Pro-Choice America, tweeted Tuesday that the Alabama lawsuit is a “very scary case.” It asserts that a woman’s rights are “third in line,” after the rights of a man who impregnates her and the fetus she aborts, she said.

“It has the potential to be used in other states, and it’s part of abortion opponents being emboldened … and conservatives turning over every rock to see how they can ban abortion,” said Elizabeth Nash, who studies state legislation at the Guttmacher Institute, which supports abortion rights.

The father of the pregnant teenager, who spoke on the condition of anonymity to protect the privacy of him and his daughter, said the family is "distraught” over the lawsuit. He said his daughter was 16 and a high school senior, and that Magers was 19 and unemployed when they discovered that she was pregnant.

“We had a long discussion over what she was going to do when she got pregnant. And we said we would support her either way,” he said, adding, “They weren’t married, and I felt legally it was her right to make that decision.”

He said his daughter and Magers are no longer together. "I knew he was pressuring my daughter to have sex, and I can’t believe we are here now.”

Legal experts say the case highlights the high stakes beyond abortion if a new conservative majority on the U.S. Supreme Court were to strike down Roe v. Wade. University of San Diego law professor Dov Fox said the high court has been clear that fetuses are not people and that a woman’s views on abortion trump her partner’s because she is the one who carries and delivers the baby. But if fetuses are recognized as having rights equal to the women carrying them, it would open up a legal and ethical minefield.

“The implications would revolutionize our ability to use reproductive technologies, to access contraception — and potentially impose all kinds of restrictions on lives and freedoms of pregnant women,” Fox said.

Arthur Caplan, a professor of bioethics at NYU Langone, said the cases are “chipping away at the framework that allows abortion by trying to protect fetal life and drawing a moral equivalency between a fetus and newborn."

However, he said, “biological development matters in terms of how we treat an embryo or a fetus legally and morally," which is why even many Americans who support abortion rights feel uncomfortable with the idea of third-trimester abortions.

Magers’s case names the Alabama Women’s Center for Reproductive Alternatives in Huntsville and an unknown pharmaceutical company that makes and distributes “a pill designed to kill unborn children” as defendants.

Hannah Ford, a spokeswoman for Personhood Alabama, an antiabortion group that has been assisting in the suit, said in a statement that Baby Roe “was cruelly robbed of life and silenced before entering the world or being able to personally voice complaint in court.”

Dalton Johnson, owner and administrator of the Alabama Women’s Center, said the case is “unprecedented, and we are assembling our legal team.”

The lawsuit is part of a series of efforts by antiabortion activists to elevate the moral and legal status, or “personhood,” of a fetus, embryo or even a fertilized egg, to that of a person already born.

Last year, voters in Alabama — one of the most conservative states in the country when it comes to abortion — passed an amendment to the state constitution that recognizes the rights of the unborn with a 59 percent yes vote. Gualberto Garcia Jones, president of the D.C.-based Personhood Alliance, said Wednesday that he is “very hopeful that Alabama will continue to lead the country in standing up for the rights of the pre-born.”

In addition to Alabama, Kansas and Missouri have personhood language on the books, and Louisiana passed a 1986 law that gives embryos the status of a “juridical person.” But many other efforts have been unsuccessful.

A 2011 legal challenge to embryonic stem cell research based on the personhood argument was dismissed when a judge demanded more information about the “identity” of the individual embryo. And a highly publicized dispute involving actress Sofia Vergara and Nick Loeb, her ex-fiance, over their two frozen embryos — stored in California — has dragged on for years in Louisiana without resolution. (Loeb wants to use them and has named them Emma and Isabella and set up a trust fund for them, while Vergara does not want to use them.)

Adrienne Kimmell, NARAL Pro-Choice America vice president, called such efforts “chilling” to women’s rights.

“It represents the real-life consequences of anti-choice ‘personhood’ policies," she said, “which, by design, seek to demote the fundamental rights of women, and are a stepping stone in the anti-choice movement’s ultimate goal of criminalizing abortion and punishing women.”

Researcher Alice Crites contributed to this report.