Judge Skeptical of Wrongful Death Claim for Aborted Embryo

HUNTSVILLE, Ala. (CN) – An Alabama attorney claimed Wednesday that under state law, anyone can do what his client is hoping to achieve: Successfully sue an abortion provider for wrongful death after getting a letter of administration to represent the estate of an aborted embryo or fetus.

But Madison County Circuit Court Judge Chris Comer was skeptical.

“The impact of that would be chaos,” Comer said.

The comments came during a hearing in Huntsville, in which the judge considered whether to throw out the case entirely.

In March, a probate judge in Madison County granted Ryan Magers, 21, a letter of administration to oversee the estate of the embryo his ex-girlfriend aborted two years earlier. According to a brief filed by his attorneys, this was the first time that a judge had granted an aborted embryo personhood.

Magers filed suit against the abortion clinic in Huntsville, the Alabama Woman’s Center for Reproductive Alternatives, on behalf of “Baby Roe,” alleging the embryo’s constitutional rights were violated when the clinic gave his former girlfriend a pill that caused her to have a miscarriage at six weeks.

The clinic, represented by Sara Tucker of the Atlanta firm Greenberg Traurig and local attorney Brian White, asked in April for the matter to be dismissed. Wrongful death suits, they argued, can only arise out of wrongful acts and abortion is a lawful act.

The attorneys stood before the packed Huntsville courtroom that, per the fire marshal, could only sit 65. In the gallery, a couple thumbed rosaries. One man wore a priest’s clerical collar.

Magers sat in the front row in a thin grey suit, brown shoes and a white shirt without a tie. For much of the hearing, he watched the proceedings, brow furrowed. He declined a request for an interview.

Attorneys Brent Helms and Matthew Clark stood before Comer to argue why the case should not be dismissed. Clark is representing Magers outside his work at the legal nonprofit The Foundation for Moral Law, which is run by the wife of U.S. Senate candidate Roy Moore. Helms, a former probate judge in Alabama, said this is his first case dealing with abortion.

Before the judge, they agreed to have Magers dropped as a party and allow the case to proceed just on behalf of the estate of Baby Roe.

Clark told the court there has been hypothesizing in some legal circles in recent years that if a state fully recognizes that an unborn fetus is a person, it could lead to the collapse of Roe v. Wade, the 1973 landmark Supreme Court decision that legalized abortion up until 22 to 24 weeks of pregnancy.

Helms said if Baby Roe has personhood, then it has rights under the Constitution and that must be squared with the woman’s right to privacy.

Clark and Helms said they are unaware of any court case like this one anywhere in the country.

But Comer called Mager’s complaint vague, saying it would have to be amended if the judge denies the motion to dismiss.

Under questioning by the judge, Clark and Helms said Magers was not present when the abortion was performed, when he was 19 and his ex-girlfriend was 16. There was no genetic testing done and the embryo was disposed of two years ago.

Furthermore, Magers’ attorneys said they had no death certificate when they asked the probate court for a letter of administration, just memorandum in support. The court held no hearing and no notice was sent to any other party.

Helms said that any person could file for a letter of administration for the estates of aborted fetus or embryo.

“I feel like it could be replicated over and over and over again,” Helms said.

Tucker, the clinic’s attorney, said in response, “If that’s not an undue burden, I don’t know what is.”

Arguing her first abortion case, Tucker told Comer the case could prevent any abortion provider in the state from performing the procedure without the express permission of the would-be father.

It was, she said, an “end run around Roe v. Wade.”

After about 50 minutes, Comer said he would take the arguments under advisement.  He told the parties to submit proposed orders and he would issue a decision within 14 days, noting that either way his ruling would probably be appealed.

Wednesday’s hearing comes two months after the Alabama Legislature passed the nation’s most restrictive anti-abortion bill, criminalizing the procedure as a felony punishable by up to 99 years in prison. The legislation, signed into law by Governor Kay Ivey, does not include exceptions for rape and incest. A challenge to the law by the American Civil Liberties Union is pending in federal court.

In 2017, Alabama voters approved an amendment to the state’s constitution making it the official position of the state to support pro-life policies.

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