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Alabama clinic calls judge’s bluff after he allowed a man to sue on behalf of aborted embryo

If abortion is legal, then why is this lawsuit going through?

Pro-choice activists hold signs alongside anti-abortion activists participating in the "March for Life," an annual event to mark the anniversary of the 1973 Supreme Court case Roe v. Wade, which legalized abortion in the US, outside the US Supreme Court in Washington, DC, January 18, 2019. (Photo credit: SAUL LOEB/AFP/Getty Images)
Pro-choice activists hold signs alongside anti-abortion activists participating in the "March for Life," an annual event to mark the anniversary of the 1973 Supreme Court case Roe v. Wade, which legalized abortion in the US, outside the US Supreme Court in Washington, DC, January 18, 2019. (Photo credit: SAUL LOEB/AFP/Getty Images)

The Alabama abortion clinic being sued by a man who wishes his ex-girlfriend didn’t get an abortion at six weeks is reminding the judge hearing the case that Roe v. Wade is still the law of the land.

Ryan Magers filed a wrongful death lawsuit in February against the Alabama Women’s Center, where he says his girlfriend went for abortion care, and the pharmaceutical company that developed the medication she used. Madison County Probate Judge Frank Barger, who was just elected in November, allowed Magers to become the legal representative for the aborted embryo, which is referred to as “Baby Roe” in legal filings — a misnomer, as it’s not even a fetus at six weeks, much less a baby in the way that’s commonly understood.

Instead of responding to the lawsuit, the clinic told the judge Monday evening to dismiss the case entirely because Supreme Court precedent still protects the constitutional right to abortion. The highest federal court maintains that right belongs to the pregnant person alone — even if someone else in their life disagrees with that decision. In 1988, for example, the Supreme Court refused to take up Conn v. Conn, a failed case where a man sued his wife to prevent her from getting an abortion.

So if abortion is legal, how can it be wrongful, as Magers claims?

Alabama law “only authorizes a wrongful death cause of action for criminal, tortuous, or otherwise unlawful conduct,” the clinic’s legal filing notes.

The clinic claims Magers is “circumvent[ing] the doors of justice” and holding it “civilly liable for conduct that the United States Constitution and the Alabama Legislature have deemed lawful.” It isn’t exaggerating. 

“This kind of thing is clearly a bid to change the law,” said Mary Ziegler, a professor at Florida State University College of Law who specializes in the legal history of reproductive rights. “There’s no real, plausible argument that there’s room for this in constitutional law as it currently stands.”

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But a partisan judge is less inclined to dismiss the case. In other words, Magers’ case could end up before the Alabama Supreme Court, where the so-called fetal personhood law has been upheld before

“Local judges probably don’t have the same professional or personal consequences if their decisions are overruled and they may not really feel much concern about that if they feel that the Supreme Court’s precedents are either unprincipled or immoral or wrong on the merits — they feel relatively free to say something because within their communities they may be viewed as heroes for that,” Ziegler said.

This could be another lawsuit argued before the Supreme Court, giving the highest court yet another opportunity to overturn or hobble Roe. While this lawsuit has been garnering plenty of attention from various new organizations, legal experts warn against making too much of it as there are more insidious ways abortion access is under attack — particularly in Alabama.

For starters, there are only three abortion clinics in Alabama, and the state bans abortion after 22 weeks. Last year, residents voted in favor of giving constitutional rights to fertilized eggs and fetuses, and abortion restrictions could get worse if Roe is overturned. Alabama lawmakers will also introduce legislation on Tuesday making it a felony to perform an abortion at any stage of pregnancy unless the pregnant person’s health is in jeopardy.