The reason for all this? A teenager got his then girlfriend pregnant, she has what everybody assumed to be a totally legal abortion…and he sues on behalf of both himself and the aborted fetus.
He pleaded, and the judge thinks that is enough to bring this case forward. I think that not only should this be put to a stop ASAP, but that the judge should face some sort of admonishment, although I don’t know what could be done legally.
How does signing off on the memorandum grant rights to the fetus? IANAL but it looks more like the judge said the suit could go forward under Alabama law.
Reading the article it’s an attempt - signed off on by the judge - to advance the ‘fetal personhood’ concept in law. That’s pretty clearly an attempt to award rights to the fetus. It also tries to set the rights of the fetus as superceding the rights of the mother to abort her pregnancy.
I doubt it’ll go anywhere. But it’s clearly another shot at abortion. It also has a bit of men’s rights mixed in there by arguing that father’s have rights over the gestation process. Good luck with that.
What is the basis for the assertion that the judge used the fact that the plaintiff pleaded with his girlfriend as the basis for allowing the case to be brought forward?
So far, two assertions for which cites are necessary -
[ol]
[li]That the judge signing off on the memorandum grants rights to the fetus, and[/li][li]That the judge used the pleas of the boyfriend as a basis for allowing the suit to go forward.[/li][/ol]Thanks in advance.
The pleading’s not really the thing, Shodan, at least as I see it.
The thing is that Mager brought a wrongful death lawsuit and the judge allowed it to go forward. That’s establishing - at least in this judge’s court - that the fetus has the rights of a person. That’s a fighting stance desperately pushing for appeal and a ruling from on high.
I think proper procedure - I’m more than happy to be corrected - would be to hold a hearing on whether such a suit could go forward and consider the fetus a person and subject to a wrongful death suit.
Even if the signing of the memorandum is not ipso facto granting personhood rights to the aborted fetus, allowing this suit to go forward is giving judicial notice to the concept that the father might have reproductive rights that supercedes the mother’s. The father is also bringing suit against the clinic and the pill manufacturer when there has been no malfeasance on their part.
TL;DR; he’s pissed because she made up her mind and he doesn’t like it. :rolleyes:
Here’s what confuses me about the article, although I don’t know anything about Alabama civil procedure. Magers appears to have filed his suit in the Circuit Court for Madison County (complaint here). That seems right to me - a trial court of general jurisdiction. But, the judge in the story is a probate judge (not a judge of the circuit court). So (unless there’s something I’m missing), he’s not presiding over the wrongful death suit. Which means that he can’t have “allowed it to go forward.”
Now, the complaint says that Magers “filed a petition for letters of administration” with the Probate Court. I assume (based on my experience with these matters), he went to the probate court, sought to open a probate matter for a person who died intestate (i.e., “Baby Roe”), and sought to be named “administrator” of the estate (i.e., the executor of an intestate estate), which would allow him to bring actions (among other things) on behalf of the deceased and the estate. (A quick look at the Alabama code suggests that wrongful death actions for the death of minors can be brought by either parent or by the “personal representative”). So, I assume what happened here (although you wouldn’t know it from the story) is that the probate judge granted the petition and opened the estate for “Baby Roe.” (Side thought: I wonder if there is law dealing with intestate succession for unborn children who die. I could imagine it coming up in a scenario where the parents and child die at the same time.).
So, assuming I’m right, that seems weird. (Although I don’t know how much discretion a probate judge has in granting or denying these petitions). But it wouldn’t seem correct to say that any ruling on the wrongful death suit was made or that the suit was being allowed to go forward. (The claim in the OP that the father “pleaded [that the woman not get an abortion], and the judge thinks that is enough to bring this case forward” seems to entirely untethered from what is going on here).
I agree with Falchion as to what it appears has happened here. From what little I’ve read about this case, there is a recent statute in Alabama that arguably allows this result for the moment.
It’s a creative attempt to dodge the issue of paternity, which would be an obvious defense to the wrongful death claim. Even if he can’t show that he is the biological father, the case can proceed with him as the personal representative. I think/hope this gets dismissed eventually…
So, I spent a couple of minutes looking at this. This story from AL.com appears to confirm my conclusion about what happened. (I.e., that Magers opened an estate in probate on behalf of Baby Roe and that is what the probate judge decided).
And, I think the probate judge is probably right. There appears to be no question that, under Alabama law, a wrongful death action can be brought on behalf of an unborn child at any time following conception. See generally ["]Mack v. Carmack, 79 So. 3d 597](Google Scholar[3) (Ala. 2011) (wrongful death suit on behalf of 12 week-old fetus following car accident resulting in miscarriage). (Is this unusual? According to this article from 2011, forty US states (plus DC) allow for wrongful death actions on behalf of unborn children after viability. Of that, eleven also allow for wrongful death actions regardless of the stage of pregnancy). The holding of Mack is very clear (right or wrong): Under Alabama law, you can bring a wrongful death action on behalf of “an unborn child in utero at any stage of development, regardless of viability.” (citing the Alabama Fetal Homicide Act). [Edit: Lest I be unclear, you also have to satisfy the requirements for prevailing in a wrongful death action].
Does that require an estate to be opened for a deceased fetus? I don’t know. But under the “wrongful death of a minor” statute proceeds recovered in an wrongful death action are distributed “according to the laws of intestate succession” (Ala. Code 6-5-391). And such an action can be brought by the “personal representative.” So it wouldn’t surprise me that you do (or that it, at least, permits it). And, I agree with Oakminster that this is likely a way to avoid the paternity issue.
In any event, if the question is whether or not you can bring a wrongful death action for a previable fetus (in appropriate circumstances), then the answer in Alabama has been clearly “yes” since 2011. (Also, as of 2011, apparently clearly “yes” in 10 other jurisdictions). The probate judge’s order essentially just recognizes this and I don’t know how he would have the authority to reject clear Alabama law on this point.
Can you bring a wrongful death suit under these circumstances under state law? We don’t know. The probate judge didn’t (and couldn’t have) ruled on that. It’s true that this interpretation of the “wrongful death” statutes (which, again, seem to be fairly common) as well as “fetal homicide” laws likely pose some risk to legal abortion (by recognizing some rights for the unborn). But, nothing appears to have happened in this case (yet) that would be out of the ordinary (certainly nothing that would support the OP’s demands for stopping the proceeding and admonishing the judge).
Why are we using the term “fetus” here? I thought it took until week 10 of gestation for it to become a fetus.
I know it might be a nitpick, but since people have such strong emotions on this subject either way, I think the most helpful thing would be to use the correct terms, in my opinion, so everyone can be sure that they are talking about the same thing.
I agree with this. The procedure under state law is proper. However if the father files suit against the mother and the abortion clinic for wrongful death, they have a near perfect defense: that their conduct is protected by the United States Constitution as interpreted by the Supreme Court in Roe and Casey. As such, their conduct cannot be “wrongful.”
Sorry. I was just thinking that he chose to have sex (and apparently unprotected sex) and should accept the consequences of that decision. In this case, it was a pregnancy followed by a termination.
I only did a touch of research, so don’t quote me, but it appears that Alabama Code clearly defines a minor in Section 43-8-1 as as “(18) MINOR. A person who is under 19 years of age.” With that definition, I think the “wrongful death of a minor statute” is completely inapplicable to this case. And I couldn’t find if the fetal protection statute that Alabama has and you spoke about, actually applies to probate issues.
In addition, it appears from this story, that the petition that the judge signed doesn’t refer to Baby Roe as a fetus rather than an actual child. It goes on to say: “WHNT News 19 reached out to Barger to ask if he knew he was signing off on rights for an unborn fetus, but he refused to comment.”
It seems to me that the attorney for the dickhead is simply trying anything he can think of, regardless of whether or not it’s legally viable, to push this to court. I wouldn’t be surprised one bit if Berger didn’t know it was a fetus when he signed the petition. It will be interesting to see how quickly this case gets kicked out of court.
Okay, well, I won’t continue the hijack. Perhaps when another thread arises, we can continue the debate.
As to the OP, anyone who knows my posting history knows that I abhor legal abortion in all but few exceptions, but this is an abuse of the legal process. For an attorney to use his legal knowledge to hail someone into court for doing what, under current law, is a Constitutional right is unethical in the extreme.
Yes, I can argue in good faith for a change in the current law (e.g. Roe was wrongly decided and should, respectfully your honor, be overruled) but I cannot bring that argument to Alabama courts, and in doing so, bring in a young woman to have to defend herself for doing what the law allows her to do. I disagree with this course of conduct entirely.
I don’t understand your objection. The Mack decision that I linked in my post clearly holds that the “wrongful death of a minor” statute applies to previable fetuses. I assume that you’re suggesting that you don’t think “person” includes an unborn fetus or a previable fetus or something (since we must agree that “Baby Roe” is under 19). Whatever the merits of that argument, it’s not the law in Alabama. And, as I also explained earlier, it is incredibly common post-viability and not entirely unusual previability to allow similar actions in other states.
In any event, your basic premise that the “wrongful death of a minor” statute is “inapplicable” here appears to be simply wrong. See Mack, footnote 3 (“our research reveals that Alabama cases concerning claims based on the wrongful death of a fetus invariably have entailed consideration of and reliance upon § 6-5-391, Ala.Code 1975, or its substantially similar predecessor, Title 7, § 119, Ala.Code 1940.”)
This case is going to fall apart (or at least should) because the plaintiff isn’t going to be able to identify the (legally) wrongful act or omission that caused the death of the fetus. But the idea that you can bring a wrongful death action on behalf of a previable fetus under the wrongful death of a minor statute (in appropriate circumstances) appears to have been settled law in Alabama since 2011.