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2/1/2013 - February 2013 SLI Educational Update - The Alabama Supreme Court Further Solidifies Protection to the Unborn

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

 To:                  SLI Supporters                                  

 Date:                February 2013  

From:                A. Eric Johnston

Re:                  The Alabama Supreme Court Further Solidifies Protection to the Unborn

 In recent years, the Alabama Supreme Court has been consistent in defining and protecting the rights of unborn children.  When Roe v. Wade was decided in 1973, judges everywhere became confused as to its meaning and application.  As a result, it is most often assumed that because Roe said the unborn child has no protection in the abortion context, then it has no protection in other ways.  What is clear is that Roe only removes the unborn child’s protection if his or her mother wants to abort him or her.  Otherwise, that unborn child has all of the same rights and protections that we as born people have.

 The latest Alabama decision is the case of Ex Parte Hope Elisabeth Ankrom v. State of Alabama, 2013 WL 135748 (Ala.), along with a companion case.  The decision was released on January 11, 2013 by the Alabama Supreme Court with the majority opinion being written by Justice Tom Parker and concurred in by Justices Woodall, Stuart, Bolin, Shaw and Main.  Chief Justice Malone and Justice Murdock dissented.  Justice Wise did not participate in the decision, because she was the presiding judge on the Court of Criminal Appeals when the case was first heard.

 The cases involved women who were pregnant when they ingested controlled substances which caused harm to their unborn children.  They were convicted under the Chemical Endangerment Statute, § 26-15-3.2, 1975 Code of Alabama.  The question in both cases was whether the reference to “child” in the statute included an unborn child.  The Court of Criminal Appeals ruled that it applied to a “viable unborn child,” that is, able to live outside the womb.  Because this decision was prior to Mack v. Carmack, 79 So.2d 597 (Ala. 2011),[1] which removed the viability threshold, the Supreme Court upheld and expanded it saying the statute applied to all unborn children, not only those that were viable. 

The confusion for Alabama courts began in 1993 when the Alabama Supreme Court applied the Roe “viability” concept in a wrongful death of a minor lawsuit.  The court held that the child must be viable before the parents could recover damages for its death caused by a third party.  The court used viability as a concept outside of the abortion context.  That was incorrect.  Unfortunately, some of that misunderstanding lingers.

I signed on an Amicus Curiae brief in Ankrom with Liberty Counsel.  This brief provided detailed historical evidence of the treatment of the unborn as a “child” from the earliest beginnings of law.  Proper legal construction of “child” must incorporate the unborn and it is not necessary that every legislative enactment go out of its way to say the unborn is included.  It is the misconception of Roe that perpetuates this misunderstanding by jurists. 

As evidence of this, the dissenting justices in the Ankrom case throw back to the idea that unless stated an unborn child has no rights.  One of the dissenters pointed out that in 2006, two child related laws were passed by the legislature.  In one, the Chemical Endangerment Statute (“CES”) did not include definitions for a “person” or an “unborn child.”  In the other, Alabama’s homicide statute was amended by defining a “person” to include an unborn child.  The dissenter believes that is an inconsistency such that the legislative intent would not include an unborn child in the CES.  Such an interpretative legal error is understandable if Roe is misunderstood.  The CES creates a crime for “criminal endangerment of exposing a child” to a controlled substance.  The statute does not define “person” or “child,” but uses “child” in context.  Personhood was not the issue.

 In the other law, the definition for Alabama’s homicide statute, § 13A-6-1(3), id., was amended to penalize the homicide of unborn children.[2]  Our homicide statute defined “person” this way:  “PERSON.  Such term, when referring to a victim of a criminal homicide, means a human being who has been born and was alive at the time of the homicidal act.”  This is the “born alive rule” from the English common law adopted by Alabama in 1819.  To correct that injustice, SLI authored this definition:  “PERSON.  The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability.  This was an exact new definition of personhood to remove the old rule.  Personhood was the issue.  

All of this leads to a proper interpretation of when life begins and when it is protected in law, without reference to the singular application of abortion law which gives virtually no recognition to life until it is outside the womb.  We expect our judges to be correct in their interpretation of the law.  But in the law of Roe, abortion and unborn children, it is such a unique area that jurists are often misled.  This is the case with the dissenters in Ankrom.   

We are pleased that the child in Alabama is being protected at all stages of life.  We hope that further opinions by our Supreme Court will clarify the law whenever the issue arises.  We have worked diligently in the legislative process to set Alabama’s public policy to protect the unborn child and to protect that policy through amicus briefs.  As the court pointed out in Ankrom, the Supreme Court does not set public policy, it is done by the Legislature.  We are blessed to have a Supreme Court which will follow that public policy and not attempt to create its own public policy. 



[1] Educational Update November 2011, “Alabama Supreme Court Rules Damages May be Recovered for Death of Unborn Child.”

[2] Educational Update May 2006, “Unborn Child Now a Person Under Alabama Criminal Law.” 

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