Madison County judge weighing dismissal in abortion-wrongful death lawsuit

HUNTSVILLE, Ala. -- A Madison County judge has yet to decide the future of an unusual wrongful death lawsuit brought in March on behalf of an aborted fetus and the man who claims to be the father.

Brent Helms, the attorney for Ryan Magers, says he believes the case is the first of its kind in the U.S.

Madison County Circuit Judge Chris Comer is considering a motion to dismiss filed by the Alabama Women's Center for Productive Alternatives.

Magers sued the Huntsville clinic for wrongful death in March, citing a 2017 abortion at the clinic.

Attorneys for the clinic argue that abortion is legal in Alabama, so no misconduct took place. They also contend the U.S. Supreme Court has found a doctor performing an abortion owes no duty of care to the father. The plaintiffs also argue that Alabama's murder statute that makes it a crime to kill a child in-utero, regardless of viability, makes an exception for an abortion.

But the case has a wrinkle.

Attorney Helms was successful in creating an estate for the fetus, named Baby Roe for the case, through Madison County Probate Judge Frank Barger. Helms argues that grants Baby Roe personhood and creates a new argument aimed at overturning the Roe vs. Wade decision.

"This case is significant because it is the first of its kind in America," he told WHNT News 19 Wednesday. "Never before, to my knowledge, has an unborn aborted six-week-old child been granted personhood. And never before, to my knowledge, has an unborn aborted child been granted the right to vindicate him or herself from the wrongful termination of his or her life.

"With the granting of personhood to Baby Roe, Baby Roe’s estate was able to file suit against the Alabama Women’s Center claiming that the termination of his or her life was wrongful. This case challenges Roe in a way no other case has."

Judge Comer has asked both sides for proposed orders in the case and the lawyers provided the court with responses in the past 10 days.

The defense wants the lawsuit dismissed.

Helms and Magers have asked the court to allow them to file an amended complaint, which Helms said today, would focus on the perspective of the unborn, aborted child.

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