Human Exceptionalism

Ruling that “Child” = All Unborn Irrelevant to Roe

I began seeing articles claiming that a recent Alabama Supreme Court ruling could undercut Roe v. Wade because it ruled that the unborn come under the definition of the term “child,” and so I decided to take a look for myself.  

It is an interesting–but very narrow–opinion.  Two women were convicted of taking dangerous drugs while pregnant. The facts were not in dispute. The question before the court was whether a chemically-caused “child” endangering statute applied, as in the appealed cases, to the unborn. The Alabama Supremes ruled specifically that it does. From Ankrom v Alabama:

As the [dictionary] definitions cited by the state indicate, the plain meaning of the word “child” is broad enough to encompass all children–born and unborn…Not only have the courts of this state interpreted the term “child” to include a viable fetus in other contexts, the dictionary definition of the term “child” explicitly includes an unborn person or fetus. In everyday usage, there is nothing extraordinary about using the term “child” to include a viable fetus.

Okay. Unborn fetuses are protected in law, including in some abortion contexts preventing late term abortions. So, how is Roe possibly impacted? The court ruled that the term “child” also applies to non viable fetuses:

To the extent that the Court of Criminal Appeals limited the applicability of the chemical-endangerment statute to viable unborn children,…this court expressly rejects that distinction as inconsistent with the plain meaning of the world “child” and with the laws of this state.

Okay, so all unborn children are, well, children. That undercuts Roe, right? Wrong!  

First, the ruling specifically limited the ruling to the statute in question, excluding it from applicability to other areas of law generally, and to any constitutional issues specifically. (A concurring opinion said that the unborn are “persons.” But that is not binding.) In this sense, the case protects all unborn children only in the context of chemical endangerment statute. That is all.

More to the point, even if the Alabama Supreme Court ruled that all embryos and fetuses are persons entitled to the full protection of the law in Alabama–it still wouldn’t impact Roe, which established a federal constitutional right to an abortion in most cases. The Feds trump the State in this regard–similar to the ways that federal anti marijuana laws trump state marijuana legalization (although the comparison is not 100% on point). The only ways to overturn Roe are with another Supreme Court ruling or a constitutional amendment.

Bottom line: The case works for me, but contrary to some pro life commentary, it is not an epochal ruling in the struggle over the legal and moral status of the unborn. 

Meanwhile, the AMA News has published an article jumping to equally overblown conclusions about the case, warning it could criminalize the prescribing of controlled substances to pregnant women.

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