Last week Alabama passed the most restrictive abortion law in the country, criminalizing abortion of “any woman known to be pregnant,” with very limited exceptions that do not include rape or incest. But a recent case in Alabama presents an even more threatening challenge to reproductive rights.
In a new paper published in JAMA, the Journal of the American Medical Association, authors Dov Fox, Eli Y. Adashi, and I. Glenn Cohen, discuss a recent Alabama state court case involving a man suing an abortion clinic and the manufacturer of a pill that enabled his then-girlfriend to terminate her pregnancy at 6 weeks.
In a troubling decision, the court permitted the fetus be a co-plaintiff alongside the man in a “wrongful death” lawsuit.
The authors critique the decision in “A Troubling Court Decision for Reproductive Rights: Legal Recognition of Fetal Standing to Sue,” show why it is contrary to settled precedent, and explain why it represents a particularly threatening salvo in the abortion wars: another court could sustain this decision without necessarily overruling Roe v. Wade and other Supreme Court precedent.
As the authors write, “By elevating the legal status of the fetus, the Alabama judgment provides at least indirect support for all manner of restrictions on women’s interests and reproductive freedom, for example, to limit embryo creation, mandate ‘adoption’ of unused IVF embryos, and require female patients who do not get pregnant after the first IVF cycle to undergo additional rounds of painful egg retrieval.”
“This troubling decision, which disregards several foundational precedents, should worry all those who seek to defend the rights of women in these contexts. Threatening liability by allowing fetuses to sue is likely to further chill the already limited number of physicians willing to provide abortions in states like Alabama,” said I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law, Harvard Law School, and one of the authors. “We are hopeful that on appeal the error will be corrected.”