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Alabama Supreme Court Issues a Controversial Decision in Lawsuit Involving the Wrongful Death of an Unborn Fetus

A recent Alabama Supreme Court ruling has taken on the Federal Supreme Court benchmark abortion decision Roe v. Wade, specifically regarding the standards determining fetal viability. In its unanimous 40 page decision issued in Amy Hamilton v. Dr. Warren Scott et al., the court reversed a previous ruling by a lower court that plaintiff Amy Hamilton could not pursue a wrongful death lawsuit against her doctors for the death of her unborn son.

A then-pregnant Hamilton was scheduled for a routine prenatal examination, ultrasound and consultation regarding a viral infection at the Isbell Medical Group in Fort Payne in 2005. Hamilton, a resident of Dekalb County, was told that an ultrasound technician was not available to perform the procedure and that she would be scheduled for one on her subsequent visit. Before her rescheduled ultrasound, Hamilton returned to the office with complaints of feeling ill. It was discovered her fetus had expired, and she later delivered a stillborn infant.
Hamilton chose to press charges against the doctors and medical staff at Isbell Medical Group for the wrongful death of her son. Wrongful death occurs when a person’s life is taken due to the willful or negligent actions of another individual. At issue here is whether Hamilton’s fetus met the criteria for fetal viability as outlined in Roe v. Wade. Defendants Dr. Scott et. al. argued that Hamilton’s fetus would not have been able to survive outside of her womb at the time of its expiration, a requirement for “fetal viability.”

However, Alabama justices rejected this definition and declared that unborn children are equally protected under Alabama’s wrongful death statutes. In the ruling, authored by Justice Parker, the court asserts that the fetal viability standard stipulated in Roe v. Wade is not convincing and should no longer be enforced. The court based its decision based on a previous decision in Mack v. Carmack (2011), which mandated that a wrongful death lawsuit could be pursued in the instance of an accidental death of a pre-viable fetus.

The decision in Hamilton v. Scott has significant implications for future wrongful death actions taken in circumstances where the fetus is nonviable. Further, it is likely that the issue of fetal viability in determining eligibility for wrongful death lawsuits will find its way to the Federal Supreme Court.