by Gualberto Garcia Jones, Public Policy Director, Personhood Alliance
January 4, 2017 (LifeSiteNews) — A unanimous opinion handed down the last day of 2016 by the Alabama Supreme Court is the latest in a growing body of state law extending personhood and the equal protection of the law to pre-born children in Alabama.
The personhood of the pre-born from the moment of conception has now been recognized by the Supreme Court of Alabama as it relates to the Homicide Act, the chemical endangerment statute and the Wrongful Death Act.
The facts of the case in Stinnett v. Kennedy revolve around the death of the pre-born child of Ms. Kimberly Stinnett due to the alleged malpractice of an obstetrician, Dr. Karla Kennedy.
The main question faced by the Alabama Supreme Court was whether the Alabama Wrongful Death Act applied to pre-born children harmed by medical negligence before viability.
Under review was the fact that during the trial, the lower trial court instructed the jury that Alabama law did not permit recovery for the loss of a "pregnancy" or the effects of the loss of the "pregnancy." In a unanimous decision, the Supreme Court of Alabama reversed the decision of the trial court and remanded it for further proceedings that comport with its ruling that the preborn child is a person under the Wrongful Death Act.
"This decision is the best way to begin the new year," stated Daniel Becker, president of the Personhood Alliance. "By insisting on the equal protection of the right to life of the preborn child from the moment of conception, Alabama is leading the nation in a return to a culture of life."
In its holding, the Supreme Court of Alabama conceded that while the term "minor child" was not defined within the Wrongful Death Act itself, its recent decisions have clearly defined the word "person" to include preborn children from the moment of conception without regard to viability.
Alabama becomes the seventh state (Illinois, Louisiana, Missouri, Oklahoma, South Dakota, and West Virginia) to allow wrongful-death actions before the pre-born child becomes viable.
Steven Heninger, the attorney for Ms. Stinnett, told LifeSiteNews that his team was "confident that this decision would be the result because of precedent and common sense." Mr. Heninger also stated that while he does "not expect any attempt to appeal to the U.S. Supreme Court," he does believe that the case will have some impact outside of Alabama.
The Stinnett case was very similar to the 2011 Mack case, however the defendant's main argument during the appeal was a novel one. Dr. Kennedy pointed out that according to Alabama's Homicide Act, which defines a person to include an "unborn child in utero at any stage of development, regardless of viability," doctors are granted an exception from criminal prosecution when a "mistake, or unintentional error on the part of a licensed physician" causes the death of a "non-viable fetus." Dr. Kennedy argued that if doctors cannot be charged criminally for unintentionally harming a child, then they should not be civilly liable.
The court disagreed, explaining that while it would be unfair for a person to be subject to criminal punishment (which requires a higher burden of proof) but not civil liability, "it simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act."
Dr. Kennedy also expressed concern that physicians treating women in early stages of pregnancy and women suffering active miscarriages need additional protection from civil liability. The court addressed this concern by pointing to the fact that the Alabama Medical Liability Act already requires plaintiffs to prove that the injury or death was "proximately caused by a deviation from the standard of care proven, generally, by expert testimony from a similarly situated healthcare provider."
Mr. Heninger told LifeSiteNews that "this case has clarified the law in Alabama by not extending criminal immunity to civil litigation where negligence has caused the death of a pre-viable fetus. The Court emphatically held that malpractice law gave sufficient protection to health care providers and that such immunity would be ill-advised."
While abortion itself was not an issue in the case, the viability standard, which currently determines which pre-born children receive protection under the law in relation to abortion, was once again forcefully rejected by the court as an "incoherent standard."
"Until the judiciary ceases to authorize and protect the dehumanization and destruction of children in the womb, we cannot expect to restore the rule of law in America," Steve Crampton, a Mississippi attorney who was a candidate for the state Supreme Court last year, told LifeSiteNews. "By recognizing the preborn child as a person and allowing a civil lawsuit seeking damages for the wrongful death of the child even before viability to proceed, the Alabama Supreme Court has once again taken the lead in attempting to restore some degree of respect for our courts and faith in our judicial system. "
In a specially poignant concurrence, Justice Thomas Parker summarized the court's jurisprudence with regard to the pre-born child in the following manner:
We settled the incongruence between civil and criminal statutes in Mack, not by giving unborn children less protection under the law but by recognizing that unborn children, viable or not, were equally protected under the Wrongful Death Act. Likewise, in Ankrom and Hicks, although we applied the plain language of the chemical endangerment statute, we settled the controversy over whether the statute protected unborn and born children equally by holding in favor of the equal protection of life. Protecting the inalienable right to life is a proper subject of state action, and Alabama judges called upon to apply Alabama law should do so consistent with the robust, equal protection with which the Creator God endows and state-law guarantees to unborn children from the moment of conception.
Justice Parker, in his concurring opinion, instructed judges in Alabama on the proper application of the law with regard to pre-born children. "Members of the judicial branch of Alabama should do all within their power to dutifully ensure that the laws of Alabama are applied equally to protect the most vulnerable members of our society, both born and unborn."
In his remarkable concurrence, Justice Parker also cited the late Professor Charles Rice — one of the nation's first and most eloquent advocates of pre-born personhood — emphasizing that "even if one somehow does not concede that the child in the womb is a living human being, one ought at least to give him the benefit of the doubt. Our law does not permit the execution, or imprisonment under sentence, of a criminal unless his guilt of the crime charged is proven beyond a reasonable doubt. The innocent child in the womb is entitled to have us resolve in his favor any doubts we may feel as to his living humanity and his personhood."
"This is one of the most pro-life opinions written by any American court since Roe v. Wade," Mr. Becker stated. "We are hopeful that other courts will follow Alabama's example and begin to recognize the equal protection of the right to life of the preborn child from conception."