“And so one of the goals of this case was to ensure that we were able to establish personhood for the unborn baby.”
Alabama voters approved changes to the state constitution – Amendment 2 – in November 2018 to establish a right to life of unborn children, known as a “personhood clause.” The measure passed with 60 percent support from the public.
In addition to the new constitutional amendment, Alabama has statutes created by the legislature, Helms said, to define “personhood” as beginning at conception. The state also has seven opinions from the Alabama Supreme Court defining personhood as beginning at conception, he said.
None of these, however, have immediate legal effect, due to Roe v. Wade establishing a constitutional “right to abortion” nationally.
The attorney sees this lawsuit as another effort to enshrine personhood in the state.
Helms said he's already had one indication that the lawsuit could succeed; he successfully set up an estate for the aborted child – identified in court documents as “Baby Roe” – and Probate Judge Frank Barger has allowed the lawsuit to go forward.
“That was the first estate, to my knowledge, ever created in the United States for an aborted child,” he said.
“So we've already had one victory, and we're moving on now to the wrongful death case...Obviously, it's the first case of its kind, ever, and we hope to establish legal precedent.”
In terms of broader implications if the father wins his lawsuit, Helms explained that in the state of Alabama, abortion is a profit-making industry, and in a wrongful death lawsuit the wrongdoer is punished in some way. In this case, the lawsuit names as wrongdoers the manufacturer of the pill that terminated the unborn baby's life, as well as the abortion clinic, the doctor, the nurses, all those that participated in the abortion.
If those entities are found liable for the wrongful death of Baby Roe, Helms said, then what was once a profit-making industry will now be subject to liability.
“And the question for them will be, ‘are we more subject to liability than we are to profitability?’ If a drug manufacturer determines that they're going to be held liable for an abortion in the state of Alabama, I doubt they're going to send any kind of pills to Alabama for an abortion,” Helms speculated.
“So I would think [their] conclusion would likely be that liability outweighs profitability, and therefore abortion is eliminated in the state of Alabama. It's just a simple business decision.”
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Prominent pro-abortion groups such as NARAL Pro-Choice America have spoken out against the lawsuit and the implications for legal personhood for aborted fetuses.
Eric Johnston, a fellow attorney and president of the Alabama Pro-Life Coalition, told CNA that while he doesn't “disagree in principle” with what Helms is doing, he is worried that the lawsuit will not succeed unless the U.S. Supreme Court overturns the 1973 decision that found a constitutional right to abortion.
While the lawsuit is currently in a state court, he said, if the abortion clinic or the drug company can successfully move it to federal court, it will be “rejected in pretty short order.” If it stays in the state system, he said, even the Alabama Supreme Court is unlikely to rule in favor of the father.
“That case is not going to be upheld until Roe v. Wade is reversed,” Johnston told CNA. “I really don't think that that approach is an approach that will get to the U.S. Supreme Court.”
Johnston said putting together the right lawsuit to challenge a longstanding precedent like Roe v. Wade is extremely difficult. He said he thinks laws passed by states, that directly challenge Roe v. Wade and are designed to be reviewed in the Supreme Court, are more likely to succeed.
“The Court has ruled in the past that the father of the child does not have a right over the unborn child, that it's the woman's right, and that's based on the idea that abortion is legal,” Johnston explained.