A recent Alabama Supreme Court decision permitting a woman to pursue a wrongful death claim on behalf of her six-week-old embryo presents a tension for reproductive rights activists concerned about the expansion of fetal rights and the slippery slope towards fetal personhood.
At first blush, the case is alarming: Alabama’s stated public policy is to “protect life, born, and unborn.” And permitting plaintiff Kimberly Stinnett to pursue civil action against her doctor certainly seems like a dangerous step toward establishing fetal personhood rights that will interfere with a pregnant person’s privacy rights. If you give anti-choice activists an inch, they will take a mile.
But it is also vital to remember, especially in the context of Alabama’s historical jurisprudence, that supporting the rights of pregnant people to pursue wrongful death claims arising out of potentially negligent medical care is in perfect alignment with reproductive justice principles, since one of its basic tenets champions the rights of people to give birth to and raise healthy babies if they so choose.
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Alabama’s Court History on Wrongful Death Liability
Stinnett believes that she received negligent medical care that caused her to miscarry a six-week pregnancy. Based upon that belief, she decided to pursue a wrongful death claim against the doctor who provided the care. She filed a lawsuit under Alabama’s Wrongful Death Act, which permits a father or mother to sue “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person.”
For almost 50 years, Alabama had barred recovery of monetary damages for prenatal injuries. In 1926 in Stanford v. St. Louis-San Francisco Railway, the Alabama Supreme Court reasoned that “a child before birth is, in fact, a part of the mother and is only severed from her at birth.” There could be, therefore, no separate injury to the fetus that was compensable in cases of wrongful death.
The court overruled Stanford in Huskey v. Smith in 1972 and held that Alabama law recognizes a wrongful death claim arising from a “prenatal injury to a fetal child which is born alive but later dies.” This was the first time that in Alabama, a woman could recover damages for prenatal injuries.
Nearly 20 years later, in 1993, the court ruled in Gentry v. Gilmore and Lollar v. Tankersley that Alabama law permits a wrongful death action if the fetus was viable at the time of death. No longer was it necessary for the fetus to have been born alive.
And then in Mack v. Carmack in 2011, the court ruled that Alabama law permits wrongful death action even for nonviable fetuses. The court found that drawing the line at the viability standard set by Roe didn’t make a lot of sense: Allowing recovery for a fetus injured before viability but that dies after viability, but refusing recovery for an injured fetus that because of those injuries doesn’t survive to viability, was incongruous, it said.
The Brody Act and Physician Immunity
The broad ruling in Mack v. Carmack meant that Stinnett should have been able to sue her physician for the wrongful death of her embryo. But Stinnett’s physician, Dr. Karla Kennedy, filed a motion to dismiss the wrongful death claim. She argued that an exception in an amendment to the Alabama Homicide Act barred a wrongful death civil action against her.
That amendment, the Brody Act, which the Alabama legislature passed in 2006, amended Alabama’s criminal homicide and assault statute so that an “unborn child” could be a victim under Alabama’s criminal statute. The legislature passed the Brody Act in response to the slaying of a young woman, 23-year-old Brandy Parker, who was eight months pregnant with a son she planned to call Brody when she was shot to death near her home in 2005.
The act changed the definition of “person” for purposes of Alabama’s criminal homicide and assault statute to include “an unborn child at every stage of gestation in utero from conception to birth, regardless of viability.” In addition to an exception in cases of abortion, it also contained a significant exception, however: It extended immunity from criminal prosecution to physicians who make “a mistake or unintentional error causing the death of a pre-viable fetus.”
Kennedy argued that the Brody Act, which exempted physicians from criminal prosecution, should be extended to exempt them from civil liability under the Wrongful Death Act. The trial court agreed with Dr. Kennedy and dismissed Stinnett’s wrongful death claim against her. The Alabama Supreme Court, however, disagreed, reinstating Stinnett’s wrongful death claim.
Viewed in the historical context of Alabama’s abortion jurisprudence, it’s not surprising that the court ruled this way. From a legal standpoint, the court’s decision was the right one: Just because a statute immunizes physicians from criminal liability doesn’t mean it immunizes physicians from civil liability.
The Winding Road to ‘Personhood’?
From a policy standpoint, however, the opinion is worrisome.
Alabama legislators, with an assist from an activist judiciary, are intent on expanding fetal rights. They are itching to declare that as a matter of law, a fetus is a person; that life begins at conception; and that, therefore, fetal people should have the same constitutional rights as living, breathing people do. One way to do that, they hope, is to reject the viability standard in wrongful death cases, and perhaps lead to a reversal of Roe v. Wade.
That certainly seems to be what is driving Justice Tom Parker, who wrote a ten-page concurrence in Stinnett grandstanding about how the viability standard for fetuses is generally incoherent. Incidentally, Justice Parker also authored the opinion in Ex Parte Ankrom, a case I wrote about here, in which the court upheld the convictions of two women—Hope Ankrom and Amanda Kimbrough—under Alabama’s meth lab statute, a child endangerment statute intended to punish people who exposed their children to narcotics in a meth lab but which was twisted to punish two substance abusers who exposed their fetuses to narcotics in utero.
The intention of anti-choice lawmakers in Alabama is, as Parker noted in his opinion in Ankrom, to “recognize unborn children as persons with legally enforceable rights in many areas of the law,” namely, “property law, criminal law, tort law, guardianship law, and health-care law—demonstrating the breadth of legal protection afforded the rights of unborn children.” (After all, this is the state that provides lawyers for fetuses.)
This is obviously alarming to reproductive rights and justice advocates, who rightfully fear that laws permitting parents to be compensated for their pregnancy losses—whether those policies take the form of feticide laws or wrongful death suits—are a stepping stone on the road to fetal personhood and, in turn, the criminalization of abortion. After all, prosecutors and judges often twist statutes not intended to punish pregnant people, tossing women in jail when they suffer bad pregnancy outcomes. That’s what the State of Alabama did to Amanda Kimbrough and Hope Ankrom, and it’s what the State of Indiana did to Purvi Patel and Bei Bei Shuai.
But civil wrongful death claims like Stinnett’s are not inconsistent with Roe.
In Roe, the U.S. Supreme Court determined that “person” as used in the 14th Amendment does not include the “unborn.” Even when a state like Alabama permits wrongful death claims based on injuries to a nonviable fetus, a nonviable fetus still doesn’t have the rights guaranteed to natural persons under the 14th Amendment. A nonviable fetus is, at best, a “juridical person,” which is legalese for artificial person. Juridical persons are legal fictions, and states grant them certain rights normally associated with live, breathing persons. (A prime example of juridical personhood is corporate personhood.) The rights that states grant juridical persons do not attach at birth, and whether or not juridical persons are afforded constitutional rights is subject to the whims of the state. But thanks to the Supremacy Clause of the U.S. Constitution, whatever rights states confer on nonviable fetuses cannot infringe upon a woman’s privacy rights.
In fact, the Supreme Court in Roe specifically noted that permitting wrongful death actions based on prenatal injury “vindicates the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life.”
There’s a fundamental difference between a woman who decides to terminate her own pregnancy and a third party who ends the pregnancy for her against her will.
As reproductive justice advocates, we can and should support efforts to compensate women when they have pregnancy losses due to the criminal or civil negligence of a third party, including medical malpractice by a physician. To the extent that the application of “person” to a fetus becomes simply a legal designation that triggers state protection in order to protect the interests of the pregnant woman—a person who already exists—then reproductive justice advocates should support such laws.
In other words, if laws containing fetal personhood language provide a mechanism to vindicate the rights of pregnant people—for example, by providing a remedy when a third party causes a loss of a wanted pregnancy—reproductive justice advocates should not oppose them out of fear that such laws might undermine reproductive autonomy. After all, one of the tenets of reproductive justice provides that women should be permitted to have children if they wish.
The Alabama Supreme Court ultimately made the right decision: Kimberly Stinnett should be permitted to make her case that her doctor caused her miscarriage. Any person whose pregnancy is terminated by the intrusion of a third party—be it a negligent doctor or a reckless driver—should be entitled to compensation under basic reproductive justice principles and tort law.
We can and should, however, resist state efforts to further introduce fetal personhood into the law and expand fetal rights in a way that interferes with a person’s right to privacy and right to choose. We must also be vigilant about the ways in which existing laws meant to protect the rights of pregnant people are used against those people.