Last week, the news broke that Madison County probate Judge Frank Barger granted a petition from 21-year-old Ryan Magers to represent the estate of an embryo (he's called it "Baby Roe") in a wrongful death lawsuit against an Alabama abortion clinic. Magers says his then-girlfriend became pregnant and sought and received an abortion at the Alabama Women's Center for Reproductive Alternatives two years ago. He's suing the clinic, its staff, and the makers of the abortion pill he says she took.
"I'm here for the men who actually want to have their baby," Magers told a local television news station. "I believe every child from conception is a baby and deserves to live." He showed the reporter an arm tattoo with the embryo's due date. The only person involved in the abortion he's not suing is his then-girlfriend, whom the complaint refers to as "the Mother."
In Alabama, "unborn children" are legally people. That was already true before the mid-term elections, written into into the criminal code where "person" refers to "unborn child in utero at any stage of development, regardless of viability" (and affirmed by a series of Alabama Supreme Court cases that treated fetuses as people, including two in which women were found guilty of endangering a child by using cocaine while pregnant). But it was affirmed again in a constitutional amendment passed by voters in November stating the "public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate" (emphasis added).
The question is: To what end? And it's a question this lawsuit—with its dubious legal future, but inflammatory idea—is emphatically asking.
Magers' lawyer has told media he believes he's made legal history by establishing an estate for an embryo. Personhood Alabama—a group that advocates for "the legal recognition of the personhood of the unborn" beginning at fertilization—claims the lawsuit as its own. "Baby Roe was cruelly robbed of life," its spokeswoman, Hannah Ford, said in a statement. The group is actively fundraising to cover Magers' legal fees.
Andrew Beck, a senior staff attorney at the American Civil Liberties Union's Reproductive Freedom Project, says the suit doesn't have "a leg to stand on." The probate judge has simply "granted a procedural check to this person to be able to proceed on his case"—a legal step that says nothing about the merits of the suit and a decision he says contains much to criticize. The same Alabama criminal code provision that defines a fetus or embryo as a person provides simultaneous exemptions for legal abortion. Roe v. Wade is still the law of the land, and the Supreme Court has rejected the idea that men should have a say in a woman's choice. Not even the new personhood amendment stands to change much for this case, Beck argues.
"Alabama has allowed, for example, a woman who is pregnant and injured in a car accident and loses the pregnancy the ability to go into probate court and sue for wrongful death irrespective of that constitutional amendment," he says. "It doesn't change the game" and its importance has been "vastly overstated" in media reports, he added.
But lawsuits (and constitutional amendments) can be about far more than the law. They can be about publicity for your cause (Magers and his lawyer have welcomed press interviews), or, on an even more basic level, the sheer act of getting into a fight. In some ways, this case is a simple extension of the personhood movement—if any fertilized human egg is a person, then it must have a person's rights. That the argument leads to establishing an estate in the name of a six-week-old embryo is a logical absurdity. But in declining to name "the Mother" as a defendant, that logic stops abruptly. It's still, despite the ascendance of anti-abortion politics under President Donald Trump, taboo to seek to criminalize women too overtly for seeking abortions.
Regardless of the case's outcome, here are a few things the probate judge, Magers, his lawyer, and Personhood Alabama have already achieved: They've raised Alabama's profile again as one of the most pro-life states in the nation. They've pushed pro-life ideas into local and national media headlines. They've inserted the idea of men's desires into the local and national abortion debate. And they've expanded the acceptable (to some) implications of the personhood argument.
In targeting a six-week abortion, the case echoes early abortion bans flying through a series of state houses this legislative session—in Georgia and Tennessee, Ohio, Mississippi and Kentucky—seeking to ban abortion at about that mark, when fetal heartbeats can be detected. Like the lawsuit, these "fetal heartbeat" bills target first trimester abortions, by far the most common in the United States (about 91 per cent of all U.S. abortions in 2015, according to the Centers for Disease Control and Prevention). And both follow a long line of personhood-driven efforts at the state and federal level dating back to Roe v. Wade that have sought to change U.S. and state law. Each has been met with a fight. In Georgia, state Representative Renitta Shannon dubbed the six-week ban "forced birthing for women" and tried to prevent the bill's passage in the House by refusing to leave the podium as she criticized it.
Like the Alabama lawsuit, the bans rest on tissue-paper-thin legal ground in the context of Supreme Court abortion precedents. And like the Alabama lawsuit, they're making noise.
In the decades-long march from Roe to "Baby Roe," the pro-life movement's individual losses still appear to till the ground for its cumulative gains, all part of the same preparation for what many view as the preference of the new majority-conservative Supreme Court: ending the constitutional right to abortion.