An Alabama probate court is allowing a man to sue on behalf of an aborted fetus, in what his lawyer claims is the first case of its kind in the country.
Ryan Magers of Madison County, Alabama, says in court papers that his girlfriend, who was six weeks pregnant at the time, had a medication abortion against his wishes in February 2017.
This January, with the help of an anti-abortion group, Magers filed a petition to serve as the “personal representative” of the aborted fetus’ estate.
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A month later, he sued the clinic that performed the abortion, the Alabama Women’s Center for Reproductive Alternatives in Huntsville, on behalf of himself and “Baby Roe,” as the fetus is referred to in court documents.
On Tuesday, Madison County Probate Judge Frank Barger granted Magers’ petition to represent the estate in a decision his attorney, Brent Helms, said broke new legal ground.
"This is the first estate that I'm aware of that has ever been opened for an aborted baby," Helms told local ABC affiliate WAAY 31. "We are confident, and this is a step in the right direction.”
The decision also drew outcry from abortion rights activists around the country, including NARAL President Ilyse Hogue, who called it a “very scary case.”
“This is the logical consequence of all anti-abortion activity,” tweeted Erin Matson, founder of Reproaction. “Fetuses are treated like people and women and people who can become pregnant are not.”
The case comes on the heels of a state constitutional amendment, passed in November, which made it Alabama state policy to “ensure the protection of the rights of the unborn child” and “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”
Experts say the amendment, known as Amendment 2, set up state lawmakers to pass a “fetal personhood” statute stating that life begins at conception.
One of the chief advocates for Amendment 2, Personhood Alabama, helped file Magers’ lawsuit. It celebrated the filing in a blog post at the time, calling it a “timely reminder that every single abortion committed is a chilling assault on a precious and innocent human life.”
Reproductive rights advocates in the state said they had been watching the case since it was filed, assuming it was an attempt by abortion foes to see how far they could push the new amendment.
“When this first came out, myself and the rest of the folks who do work on abortion rights in the state kind of laughed because it was so ridiculous on so many levels,” said Amanda Reyes, president of the Yellowhammer abortion access fund. “But today’s ruling by the probate judge is just completely shocking.”
But Lucinda Finley, a professor at the University at Buffalo School of Law, said reproductive rights groups didn’t have much to be worried about. She said the U.S. Supreme Court has already struck down laws requiring women to obtain permission from their partners for abortions, and that Magers suing on behalf of the fetus wouldn’t change that.
“He may deeply, emotionally, fervently wish that his girlfriend had accepted his pleas to not have an abortion, but she didn’t,” Finley said. “And U.S. constitutional law says it’s her decision, not his.”
