HUNTSVILLE, Ala. - In November Alabama voters passed a constitutional amendment saying there is no right to an abortion in the state.
As we’ve reported this week, a lawsuit filed in Madison County is going after legal underpinnings that make abortion legal in the U.S.
And, well-known local attorney Mark McDaniel said given the clash between state law and federal law, the case could wind up before the U.S. Supreme Court.
Ryan Magers is suing Alabama Women’s Center for Reproductive Alternatives, LLC. In Madison County Circuit Court for providing an abortion to a woman who he says was pregnant with his baby.
Brent Helms, the attorney for both Ryan Magers, who claims to be the father, and ‘Baby Roe,’ the unborn fetus, said Magers did not want the woman to have an abortion.
The lawsuit’s defendants include the abortion clinic, staff members and a drug maker that manufactured the drug used in the abortion, according to the court filing.
Helms says Alabama law supports their wrongful death claim.
“The Supreme Court of Alabama has defined a person as from conception,” he said. “Statutes in the state of Alabama have defined a person as from conception, and obviously now with Amendment 2 we recognize a right to life of an unborn child."
Abortion has been legal in the U.S. since the 1973 U.S. Supreme Court decision in Roe vs. Wade.
Veteran Huntsville attorney Mark McDaniel said the high court found that a woman had a right to an abortion.
“Roe vs. Wade and Planned Parenthood vs. Casey says that a woman has a right, a privacy right, under the due process clause of the 14th amendment, to have an abortion,” he said.
Alabama law has created a criminal statute for the death of an unborn fetus, civil liability for the wrongful death of an unborn fetus and the Alabama Supreme Court has found those standards hold regardless of the fetus’s viability -- its ability to survive outside the womb.
So, if it’s a criminal offense to cause the death of an unborn fetus in Alabama, abortion rights in the state depend on the federal court’s prior rulings.
“This case here (the Baby Roe lawsuit), that we’re talking about, flies in the face of Roe vs Wade and Planned Parenthood vs Casey, flies right in the face of it,” he said. “Filing this, they’re going to end up in a position where they’re going to ask the U.S. Supreme Court to change those precedents, to change those laws.”
Alabama legislators, state justices and voters, have formally said life begins at conception and the unborn have rights.
“If you’re in the Legislature, you’re in Congress, you can pass laws,” McDaniel said, “But they still have to pass Constitutional muster. It’s still what those five justices, what five of those nine justices say about life.”
The U.S. Supreme Court, which has a conservative majority, gets the last word.
“Some legal experts say they’re waiting for a case like this to change precedent,” McDaniel said. “And to turn it over, and leave it up to the states to decide. If they do that, then you know what Alabama is going to say.”