Judge waits to rule on motion to dismiss in wrongful death suit against a Huntsville clinic

HUNTSVILLE, Ala. - It's a case making national headlines and being touted as a first of it's kind.

Ryan Magers filed a wrongful death suit against Alabama Women's Center, a Huntsville clinic that performed an abortion for his ex-girlfriend. She was 6 weeks along at the time of the abortion.

In court Wednesday, Madison County District Judge Chris Comer decided to wait to make a decision on the dismissal of the case. He asked attorneys for both the plaintiff and defendant to submit proposed orders no later than two weeks from Wednesday. He said he would take arguments presented in court under advisement and make a decision after the proposed orders were submitted.

"There's never been a case like this in the United States of America, it didn't get dismissed, we have the opportunity to move forward. We are really excited. We're confident," said Magers' attorney, Brent Helms.

What makes the case stand out is who is listed as a plaintiff. In the original claim, Ryan Magers was listed as a plaintiff as an individual and as a representative of the estate of the unborn child.  During the hearing, Magers, as an individual, was removed as a plaintiff.

"You can't run both concurrently; it's got to one or the other. Either he's going to file as an individual or he's going to file as the personal representative of the estate of his deceased child and we decided to file, well to proceed at this point, solely under him being named the personal representative of the estate," Helms said.

That only leaves the estate of the unborn aborted embryo as a plaintiff.

"For the first time in the history of America the aborted child has been able to move forward with this case," Helms said.

The unborn aborted embryo is referred to as "Baby Roe" in court documents. Opening an estate for Baby Roe was also an unprecedented act. In February of this year, a judge granted administrative letters to Magers over the aborted embryo's estate. A move Magers' attorney says provided legal personhood to the unborn child.

"Opening an estate was essential in being able to file on behalf of the aborted child. The State of Alabama recognized that Baby Roe is a person and then the State of Alabama's laws allow for Baby Roe's personal representative, the individual ordered by the court to represent the estate of Baby Roe to file a wrongful death suit," he said.

Helms says since Baby Roe was granted personhood, the abortion violated the 6-week old embryo's constitutional right to life, which is the basis of the wrongful death lawsuit.

Magers' legal counsel revealed in court that Magers was 19 and his ex-girlfriend was 16 at the time the abortion took place, which was in 2017. Helms says Magers pleaded with his ex-girlfriend asking her to not have the abortion. Then he tried to stop her using the legal system.

"He went to an attorney and he said is there anything that I can possibly do to preclude my girlfriend from getting an abortion? The attorney said sure let me draft something and let's file it with the court. Before that could be filed, Ryan's ex-girlfriend went and had the abortion," Helms said.

An attorney for Alabama Women's Center filed a motion to dismiss the case in April, according to court records. In court Wednesday, attorney Sara Tucker explained that if the judge decided in favor of the plaintiff it would create a precedent that would affect all women in Alabama who want to have an abortion.

"My client, who is a women's health services provider in the state of Alabama, is civilly liable for providing a legal abortion then there will be no medical providers in the State of Alabama that will provide legal abortions. So that is going to completely nullify any woman in Alabama's ability to seek out a legal medical abortion," Tucker said.

Tucker also explained why a wrongful death did not take place.

"The bottom line here is that this is a simple case. They have sued for the wrongful death of an embryo and at the time that, that happened abortion was legal in Alabama and still is. So, therefore, there's no wrongful act. With no wrongful acts there can be no claim for wrongful death on Alabama civil liabilities statutes," Tucker explained.

Helms says since the unborn child has been granted personhood, the abortion violated Baby Roe's constitutional rights, because of that, he says it was not a legal act.

Helms says this case seeks to vindicate Baby Roe and all unborn children. He hopes this case can make it to the US Supreme Court and eventually overturn the Roe V Wade decision.

No matter what Judge Comer decides to do, he told the parties in court, he expects his decision will be appealed.

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