Alabama Writes a New LePage In The Abortion Debate
Readers of History, Rinse, & Repeat know that one of this author’s greatest peeves is how the press misreports important events of the day. We have published articles that argue that the press has ignored or misrepresented historical facts, or we have written about historical facts to demonstrate how the press is misreporting current facts. This article, although it contains some (legal) history, is a little different, so be forewarned.
A little over a month ago, on February 16, 2024, the Alabama Supreme Court issued an opinion with respect to a wrongful death action brought by parents of embryos that were destroyed accidentally by a fertility clinic. The Alabama court determined that the statute allowing recovery for the wrongful death of an unborn child did not exclude extrauterine embryos.
Reaction to the decision was immediate and arguably over the top. One Washington Post columnist termed the decision “bizarre.” Abortion advocates deemed the decision to be an attack on abortion rights themselves. A New York Times columnist argued that Samuel Alito, by his decision in Dobbs v. Jackson Women’s Health Organization, had “opened the door to reproductive hell,” stating: “It should be said here that the majority’s decision was possible only because of Dobbs, since to free states to outlaw abortion is also to free them to touch an even larger set of rights and freedoms.”
These reactions, and others like them, miscomprehend the legal issues faced by the Alabama court, the nature of a wrongful death suit, and the relevance and scope of the U.S. Supreme Court’s original decision with respect to abortion, Roe v. Wade. There is a long history of courts granting rights to unborn children, even those who are not viable, and to their parents, a history unchanged by Roe v. Wade. The decision of the Alabama court was far from bizarre, but was relatively consistent with prior law. Moreover, it was not made possible only because of Dobbs, but, to the contrary, was entirely consistent with Roe v. Wade.
At the outset, I would note that I wade into this debate with the greatest of trepidation. The subject of abortion raises great passions. But the subject into which I am wading is not about abortion; it is about the need for any debate to be honest and informed. In a political landscape where attacks on the courts in general, and upon the US Supreme Court’s so-called “legitimacy” in particular, have become an increasingly frequent occurrence, it is necessary, when examining a judicial decision, to understand what exactly the court’s task was in any particular case, and then to understand how it went about its task. More particularly, this article does not reflect my personal view on abortion or my view on the correctness of the LePage decision. Instead, it reflects my view that, with respect to that decision, the press not only failed miserably in its task to inform the public, but that it deliberately misinformed it.
The Facts of LePage
The facts of the LePage case are relatively straightforward. The plaintiffs were clients of an in vitro fertilization (“IVF”) clinic, which helped them conceive children by joining the mother’s eggs and the father’ sperm “outside the mother’s body.” The clinic stored, at very low temperatures, the embryos created by this process in a so-called “cryogenic nursery.” All parties agreed that, if properly safeguarded, an embryo can remain alive in a cryogenic nursery “indefinitely” – several decades or longer.
As a result of this process, the plaintiffs were able to conceive and give birth to several children. They contracted to store their remaining embryos with the clinic. Interestingly, according to the defendants’ briefs, the plaintiffs waived their right to pursue wrongful death claims and treated the embryos as non-human property in those contracts. However, the Alabama Supreme Court held that those defenses had not been argued to the court below and therefore could not be introduced on appeal.
The complaints alleged that a patient at the defendant hospital wandered through an unsecured doorway and removed certain embryos. Because the embryos were stored in extremely low temperatures, they burned the patient’s hands. The patient dropped the embryos, killing them.
Two sets of parents sued for wrongful death and negligence. One set of parents also brought breach of contract and bailment claims against the hospital.
The Legal Nature of Wrongful Death Claims and Their History
Under English common law, there was no lawsuit permitted for wrongful death, one theory being that lawsuits die with the plaintiff. Thus, while there is some dispute among the states as to whether the English rule carried over to the United States, most states, including Alabama, believe that the right to bring a claim for wrongful death is not a common law claim -- one created by the courts – but that the right only arises when it is created by the legislature by statute. Thus, when determining whether a claim for wrongful death exists under a particular set of facts, the court looks primarily to the language and meaning of the relevant statute.
A suit for wrongful death is brought on behalf of the parents, heirs, or spouse of the victim, and ordinarily seeks damages that they, not the deceased, incurred as result of the victim’s death. This often includes economic damages, e. g., what would the deceased have earned, in some instances, damages for emotional distress, and, for a spouse, loss of consortium. But Alabama goes one step further -- that statute is primarily punitive in nature, designed to deter future conduct. Damages are to be measured by the enormity of the wrong.
Initially, claims of wrongful death or injury could not be brought on behalf of unborn infants, the most famous case being Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), written by Justice Oliver Wendell Holmes, the subject of a prior article at History, Rinse & Repeat. In dismissing the plaintiff’s claim, Justice Holmes, writing in language that would be embraced by abortion activists today, stated: "as the unborn child was part of the mother at the time of the injury, any damage to it . . . was recoverable by her." Later courts further reasoned that it would be difficult to prove that any injury and death to an unborn child had been caused by the defendants’ action and that it would be easy to assert fraudulent claims.
The state of the law stayed undisturbed for decades until a decision by a United States District Court in D. C., Bonbrest v. Kotz. A viable baby was injured during delivery. In sustaining the claim, the court wrote:
As to a viable child being "part" of its mother -- this argument seems to me to be a contradiction in terms. True it is in the womb, but it is capable now of extrauterine life - and while dependent for its continued development on sustenance derived from its peculiar relationship to its mother, it is not a "part" of the mother in the sense of a constituent element -as that term is generally understood. Modem medicine is replete with cases of living children being taken from dead mothers. Indeed, apart from viability, a nonviable foetus is not part of its mother.
As the author of the leading textbook on torts, William Prosser, wrote, Bonbrest "brought about what was up till that time the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts."
After Bonbrest, courts permitted claims for injuries brought by viable fetuses who survived their birth. Among those courts was Alabama. In time, however, the requirement that the fetus be viable was relaxed by many courts. First, courts allowed babies, injured while pre-viable, but who survived birth, to sue for pre-natal injuries. According to one commentator, the first decision to do away with the viability requirement was issued by a court in that hotbed of evangelicalism, New York. In Kelly v. Gregory, the court wrote:
We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and foetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.
The mother's biological contribution from conception on is nourishment and protection; but the foetus has become a separate organism and remains so throughout its life. That it may not live if its protection and nourishment are cut off earlier than the viable stage of its development is not to destroy its separability; it is rather to describe conditions under which life will not continue.
Other courts reasoned that if a fetus survived until birth, it made little sense to distinguish between whether it was injured pre-viability and post-viability.
Then, certain courts dispensed with the requirement that the child be born alive, permitting wrongful death actions by parents of viable children even if the fetus died in the womb. Courts reasoned that it similarly made little sense to reward the wrongdoer for the severity of his act by providing a cause of action for injuries that did not result in the death of the fetus, but deny such cause of action to a fetus who was more seriously injured. As one court reasoned, twins injured by the same conduct should not be treated so differently merely because one survived till birth, and one did not. Finally, a minority of states -- ten, according to a 2012 Alabama case, Hamilton v. Scott -- allowed actions for wrongful death of pre-viable fetuses, including Alabama.
Alabama’s first case to establish to establish this was a 2011 case called Mack v. Carmack. In holding that a wrongful action could be brought on behalf of a pre-viable fetus, the court noted that the amendment to a criminal homicide statute defined “unborn infant” as “a human being in utero at any stage of development,” and reasoned that, while the language of the civil statute had not similarly changed, it made little sense to impose broader criminal liability than civil for the same act. The court also analyzed other jurisdictions that had similarly reversed their positions. In the Mack decision, the court repeatedly made clear that the fetus was a separate legal entity from the moment of conception.
This was the state of the law at the time the Alabama Supreme Court determined the LePage appeal. The law was unequivocal that for purposes of a wrongful death suit, a fetus was a separate legal entity from the moment of conception. According to the decision, this was not disputed by the parties. Furthermore, that law was not some radical departure from prior law, but the result of a gradual evolution in the law, although some states, such as Alabama, had “evolved” more than others. The only issue for the court to decide was whether the Alabama wrongful death of a minor legislation encompassed a fetus conceived and killed outside the uterus.
The LePage Decision
In the appeal before it, the LePage court was faced with two, alternative claims: one that the conduct of the clinic resulted in the loss of life, the other that it resulted in the loss of property or some other undefined interest. The court identified the issue before it as, not whether an extrauterine fetus was included in Alabama’s wrongful death act, but “whether the Act contains an unwritten exception to that rule for extrauterine children.” In doing so, the court can be accused of subtly tilting the field, placing the burden on the hospital to show the claim was excluded rather than upon the plaintiff to show that it was included. However, it is questionable whether this tilt was outcome determinative.
While many in the press have focused on the colorful language of the chief justice’s concurring opinion, that invoked Jeremiah and God, the opinion of the court is far drier. At the outset, the court first looked not to the Old Testament, but to the Alabama constitution, which provides in pertinent part:
(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.
(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.
The court deemed this provision as mandating that the court resolve any ambiguities in the statutory language in favor of preserving the life of the unborn child. It then rejected the defendants’ argument that the civil statute should not be construed more broadly than the criminal statute addressed in Mack v. Carmack, which referred to an unborn child “in utero.” The court said there was no requirement that the two statutes be co-extensive, and that the criminal statute was the floor, not the ceiling.
The court also reasoned that excluding extrauterine fetuses might raise even thornier issues. For example, science allows a fetus born through IVF to be brought to term outside the womb. Would the killing of a full-term fetus produced in that manner be excluded from the statute?
In reaching its decision, the court recognized the public policy implications of its decision. It also noted, in its final paragraph, largely omitted from the press coverage, that the clinic had numerous and, to an outside observer, compelling contractual defenses to any claim, including, as noted, the waiver by the plaintiffs of the right to bring various claims including one for wrongful death. The court reasoned that the clinic could assert those defenses in the trial court. However, it felt it was bound by the language of the statute, the Alabama constitution, and preexisting decisions to allow the claim to proceed.
Press Coverage of the Decision
As set forth above, while one might disagree with the decision of the Alabama court, and while the consequences of that decision may be significant, there is little that is “bizarre” about the decision. Faced with a constitutional mandate “to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate,” the court had a reasonable basis to reach its decision, even if one disagrees with that reasoning. Indeed, one could even argue that the historical objections to a wrongful death action by a fetus -- (1) that the fetus is part of the mother, (2) that issues of causation would be difficult, and (3) that fraudulent claims would be encouraged – were all absent from the LePage action because of its unusual fact pattern. If the result is bizarre, blame might more rightly be placed upon the legislature and voters of Alabama who amended the constitution than upon the court.
Far more groundless is the suggestion that the LePage decision was made possible only by Dobbs, and that it is in some way inconsistent with Roe v. Wade. In Roe v. Wade, the US Supreme Court determined that, based upon its reading of various constitutional provisions, a woman had a constitutional right to privacy that included the decision as to whether to have an abortion. At the same time, however, the Court recognized repeatedly that the state had “important and legitimate interest in protecting the potentiality of human life.” (Emphasis added). The Court balanced the two countervailing interests, determining that, to overcome the woman’s constitutional right to privacy, the state’s interest had to be “compelling.” The relative strength of these interests ebbed and flowed depending upon the term of the pregnancy. The moment when the state’s interest in protecting the “potentiality of life” became compelling and therefore outweighed the woman’s right to privacy was the moment of viability. Thus, regardless of its result, Roe expressly recognized the interest of the State to protect even pre-viable life during a woman’s pregnancy. It merely held that such interest was not sufficiently compelling to overcome the woman’s right to choose.
More significantly, Roe addressed a situation where the interests of the mother and the interests of the state were at odds. In LePage, those interests were aligned. Both the state and the mother wished to preserve the lives of the embryos. It is impossible to discern how Roe v. Wade, if it had any relevance at all, would preclude the LePage decision or even counsel against it. Indeed, the decision accords with Roe. The fundamental premise of abortion advocates is a woman’s right to choose. In LePage, the mother chose to preserve life. Thus, proponents of abortion are unquestionably hypocritical in criticizing a decision that validates her choice. “My body, my choice” has little application to a fact situation that involves neither.
In conclusion, I reiterate that the point of this article is not whether I consider the result of the Alabama decision to be right or wrong. Likely a majority of Americans do not believe that life begins at the moment of conception. However, if the law says that it does, a judge is duty bound to apply that law, whether he agrees with it or not. My ultimate point is that, in doing so, a judge does not demonstrate his illegitimacy, but his legitimacy.