In Madison County, Alabama, a probate judge’s decision to open an estate for an aborted embryo has paved the way for its would-be father, Ryan Magers, to sue the abortion clinic for wrongful death.
Magers was none too pleased when his girlfriend, who was six weeks pregnant, decided to get an abortion against his wishes. In Magers’ apparent vision of a perfect world, he would have been able to force her to carry the pregnancy to term.
“I just tried to plead with her and plead with her and just talk to her about it and see what I could do, but in the end, there was nothing I could do to change her mind,” Magers told WAAY.
So in early February, Magers filed a lawsuit against the Alabama Women’s Center—the clinic that his girlfriend went to for abortion care—along with the pharmaceutical company that manufactured the medication abortion pill she used.
But Alabama law does not permit family members of a deceased person to bring a wrongful death claim. Only the personal representative of the deceased person’s estate can sue for the “wrongful act, omission, or negligence” that caused the person’s death.
And that’s what Probate Judge Frank Barger allowed Magers to become. Magers is now the legal representative of the aborted embryo—which he and his lawyers are calling “Baby Roe,” a patently preposterous moniker since an embryo is not a baby. And as the embryo’s representative, he may proceed on its behalf with a wrongful death lawsuit against the abortion clinic and others involved in terminating the pregnancy.
If successful, Magers’ lawsuit could have devastating consequences for people of reproductive age in Alabama—especially those who could face the possibility of abusive partners going to court to seek restraining orders blocking them from getting abortions.
“This is the first estate that I’m aware of that has ever been opened for an aborted baby,” Magers’ attorney Brent Helms said, according to WAAY
In most states, this lawsuit would be dead on arrival. The U.S. Supreme Court has ruled that spousal notification provisions are unconstitutional. In Planned Parenthood v. Danforth, the Court said in 1976 that a state (in this case, Missouri) may not constitutionally require the consent of a spouse or any particular person as a condition of abortion during the first 12 weeks of pregnancy: “Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.”
And in Planned Parenthood v. Casey, the Court ruled in 1992 that the Pennsylvania statute provision requiring a woman to notify her husband before she got an abortion operated as a substantial obstacle to her choice and was therefore an undue burden.
Surely if a wife is not constitutionally required to notify her husband that she intends to obtain an abortion, a girlfriend—like Ryan Magers’—has no such constitutional duty.
The Court in Casey laid out its reasoning:
For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law—those who most reasonably fear the consequences of notifying their husbands that they are pregnant—are in the gravest danger.
But Alabama isn’t most states. Last year, voters in Alabama approved a personhood amendment to the Alabama Constitution that gives constitutional rights to fertilized eggs, embryos, and fetuses. And the Alabama Supreme Court has already slipped so-called fetal personhood into several decisions, permitting policies and laws not explicitly intended to entrap pregnant people to nevertheless be used to prosecute and convict them.
In 2013 in Ankrom v. Alabama, for example, the Alabama Supreme Court recognized a developing fetus as a “person” under Alabama law when it held that the word “child” in the state’s child chemical endangerment statute applies to “unborn children” as well as to born children. In doing so, it upheld the criminal convictions of two women who ingested chemical substances while pregnant. The term “child” was not defined in the statute, but the court endorsed the Alabama Court of Criminal Appeals’ reasoning: that “the dictionary definition of the term ‘child’ explicitly includes an unborn person or fetus.”
In 2014, the court issued a similar ruling in Hicks v. Alabama, upholding the criminal conviction of Sarah Janie Hicks under the same chemical endangerment statute.
So if Magers’ case ends up before the Alabama Supreme Court, as his lawyer believes it will, the Alabama Supreme Court will jump at the opportunity to lay its so-called personhood law on the steps of the U.S. Supreme Court—giving the nation’s highest Court yet another chance to gut Roe v. Wade.
Even setting aside that dangerous precedent, though, Magers’ wrongful death claim makes no sense.
A wrongful death claim requires a wrongful act or omission, or a negligent act. There is nothing wrongful about Magers’ girlfriend—presumably she’s his ex-girlfriend now—terminating her pregnancy. Abortion is still legal in Alabama.
And certainly, it would be ridiculous to claim that the Alabama Women’s Center was somehow negligent in terminating the pregnancy. What is Magers going to argue? That the abortion clinic accidentally aborted this embryo? It is absurd.
But more importantly, it is telling that Magers is not suing his (ex-)girlfriend. She chose to get an abortion, and Magers had no right to stop her. And since a wrongful death claim requires that a wrongful or negligent act causes the purportedly wrongful death, the technical question regarding the cause of the abortion becomes crucial. Did the abortion clinic cause the abortion? Or was it the pregnant person seeking the abortion that caused it? Clinics aren’t in the business of going out into the world looking for pregnant people on whom to perform abortions against their will. And if the pregnant person sought and obtained a legal abortion, where’s the wrongfulness? If Magers truly believes that the termination of this embryo was wrongful, why isn’t he suing his ex-girlfriend?
Because it would be outrageous to do so, and it would operate as a de facto veto over the pregnant person’s reproductive choices. While we may be marching toward a world where under federal law, fetuses are persons for purposes of the Constitution—and where third parties wield control over the reproductive decisions of pregnant people, while the pregnant people serve as nothing but hosts—we’re not there yet.
The U.S. Supreme Court in Roe rejected the notion that a fetus is a person, and while Roe remains intact, federal law protecting pregnant people’s right to an abortion should trump Alabama law thanks to the Supremacy Clause. But with the new conservative Court and the potential for Justice Brett Kavanaugh to provide a fifth vote to either reverse Roe or substantially undermine its principles, that could quickly change. Certainly, Alabama is spoiling for the personhood fight that could make it happen.
So just because we’re not there yet, doesn’t mean we’re not going to end up there. And that is a frightening prospect.