In upholding a lower court’s fetal-homicide ruling, Alabama Supreme Court justice Tom Parker urged the U.S. Supreme Court to address the “logical fallacy” he believes is inherent in the landmark 1973 Roe v. Wade decision, which established a constitutional right to abortion.
Jessie Livell Phillips, who was sentenced to death after being found guilty of a double homicide for killing his pregnant girlfriend, appealed the decision, arguing that the fetus was not legally a separate person, and that he should thus have been charged with one count of homicide instead of two.
The Court, however, rejected Phillips’s appeal, finding that he was indeed guilty of killing “two or more persons” per a 2006 Alabama law that extended personhood to children in utero.
As part of his concurring opinion, Parker wrote that it is a “logical fallacy” for the state to treat a fetus as a separate person subject to equal protection for the purposes of charging Phillips with a double homicide, while making an exception in the case of a woman seeking an abortion.
“I urge the Supreme Court of the United States to reconsider the Roe exception and to overrule this constitutional aberration. Return the power to the states to fully protect the most vulnerable among us,” Parker wrote.
Parker goes on to cite cases in which the court held that fetuses can be considered legal parties to estate settlements and trusts, which are often adjudicated after a legal guardian has been appointed to represent the interests of the fetus. He made a similar argument in 2013 while writing the court’s opinion upholding the state’s right to prosecute pregnant women who use drugs for endangering their unborn children.
“Today, the only major area in which unborn children are denied legal protection is abortion,” Parker argued in 2013, “and that denial is only because of the dictates of Roe.”