Alabama court's wrongful death ruling

[Smuckatelli]

This is going to be a highly contested ruling:

Citing the National Conference of State Legislatures, Parker wrote that 38 states have enacted fetal-homicide statutes, of which 28 protect life from conception, and noted a ruling from last year by his own court that concluded that Alabama's wrongful death law applies to an unborn child at any stage of gestation. He added that at least nine other states permit recovery for the wrongful death of previable unborn children.

"This court recognized the arbitrariness of 'draw(ing) a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability,'" Parker wrote.

Extending the argument, Parker, whose opinion was signed by three other judges, wrote that "Roe's statement that unborn children are not 'persons' within the meaning of the Fourteenth Amendment is irrelevant to the question whether unborn children are 'persons' under state law. Because the Fourteenth Amendment 'right' recognized in Roe is not implicated unless state action violates a woman's 'right' to end a pregnancy, the other parts of the superstructure of Roe, including the viability standard, are not controlling outside abortion law."


Read more: http://www.foxnews.com/politics/2012/02/20/alabama-courts-wrongful-death-ruling-used-to-recommend-abandoning-viability/#ixzz1mytZgtL7

[son_of_montfort]

What... is abortion the new "Global Warming Thread" for Grogheads, Smuck?

Did you read the end, it has some very interesting implications:

In the case, Amy Hamilton argued that her baby died in utero because of negligent acts by her doctors. She claimed that for six weeks beginning in early January 2005 she sought ultrasounds to monitor her baby after she contracted "fifth disease," an infection caused by human parvovirus. When the technician finally gave her an ultrasound at the end of February, the baby was shown to have problems. He was still born two weeks later.

Hamilton filed suit that the baby's death could have been avoided if she had been monitored as recommended. The lower court gave a summary judgment to the doctors, claiming that the wrongful-death action could only be claimed if the child had been able to survive outside the womb.

But the high court ruled that both legislatively and in the court, nonviable fetuses have been regarded as persons.

The Supreme Court did uphold the lower court's summary judgment for the doctors that Hamilton suffered physical injury as a result of the loss, saying that she had argued that the fetus from its conception was a separate being so she could not have been the one to suffer physical injury as a result of the baby's death.

The case now returns to the lower court to be judged on the merits of wrongful death statutes.

I'm not sure what the ramifications will be for prenatal care. Basically, this is saying that doctors/nurses can be charged for wrongful death in the case of a baby not making it to term. If you are interested in some of my thoughts on this, I'll talk to you in a private setting. This can be problematic for the prenatal healthcare field, a field where care is becoming a bit more limited. I will be interested to see where this goes.

[Smuckatelli]

What... is abortion the new "Global Warming Thread" for Grogheads, Smuck?

Technically, this is the first subjetc on abortion. The other thread is about separation of churhc/religion.. ;)

I'm not sure what the ramifications will be for prenatal care. Basically, this is saying that doctors/nurses can be charged for wrongful death in the case of a baby not making it to term. If you are interested in some of my thoughts on this, I'll talk to you in a private setting. This can be problematic for the prenatal healthcare field, a field where care is becoming a bit more limited. I will be interested to see where this goes.

It will be interesting to watch this play out. If the doctors/nurses can be charged for wrongful death....how long do you think it will be before pro-lifers try to charge wrongful death to women getting abortions?

[bayonetbrant]

I'm just wondering if this is going to mean that pregnant women can use HOV-2 lanes...

[Smuckatelli]

I'm just wondering if this is going to mean that pregnant women can use HOV-2 lanes...

They already can in Virginia along I-66, if they have paperwork from the doctor verifying twins....they can use the I-95 HOV-3.


BTW...the above is BS..... ;)

[Jarhead0331]

If the doctors/nurses can be charged for wrongful death....how long do you think it will be before pro-lifers try to charge wrongful death to women getting abortions?

I don't think it will be wrongful death, or some other negligence based tort,  they will be looking for.  I believe they would be more interested in charging murder in the first degree.

[bayonetbrant]

I'm just wondering if this is going to mean that pregnant women can use HOV-2 lanes...

They already can in Virginia along I-66, if they have paperwork from the doctor verifying twins....they can use the I-95 HOV-3.


BTW...the above is BS..... ;)

there are many days up there where those lanes are not necessarily faster...

[son_of_montfort]

If the doctors/nurses can be charged for wrongful death....how long do you think it will be before pro-lifers try to charge wrongful death to women getting abortions?

I don't think it will be wrongful death, or some other negligence based tort,  they will be looking for.  I believe they would be more interested in charging murder in the first degree.

JH, while I have you here, I may have read that Alabama thing wrong - did it say they case was now going to go back to the lower court to re-evaluate the decision made on the side of the doctors in the wrongful death suit? So that means it is possible the woman will be awarded damages?

Like I said, that could have some unforeseen repercussions.

[Jarhead0331]

JH, while I have you here, I may have read that Alabama thing wrong - did it say they case was now going to go back to the lower court to re-evaluate the decision made on the side of the doctors in the wrongful death suit? So that means it is possible the woman will be awarded damages?

Like I said, that could have some unforeseen repercussions.

I only gave a cursory glance at the linked article.  However, procedurally what happened is clear.  The Alabama Circuit Court granted summary judgment to the defendant doctors and dismissed the lawsuit against them.  The plaintiff then appealed the decision to the State Supreme Court which reversed the lower court's decision.  As a result, the case will be remanded back to the circuit court where the wrongful death action will be tried before a jury.

Keep in mind, these are Alabama state court rulings.  They hold no precedent in any other jurisdiction.

[son_of_montfort]

Right! Thanks. I was just wondering if it went back down then for a full judgement.

[Windigo]

This is a stupid as it can possibly get.

If raging selfindulgent, irresponsible, self-interest wrapped up in sham principles could possibly have a more nefarious stupidity quotient than this.....

The totally foreseeable consequences of a ruling like this are so numerous as to be grains of sand on a beach.

All spontaneous natural abortions become suspect. The DA will have carte blanche to go after any pregnant woman that partakes in any questionable activity that they don't like .... e.g., "sorry lady... no more flying for you - the increased radiation will harm your unborn baby"

Moore stupidity is not what the US needs right now.... there's enough in the political system.

[son_of_montfort]

I'm fairly concerned with the Virginia law about to be signed into effect that forces women who wish to go through a legal abortion to have a transvaginal (yes, that means the giant prod inserted inside the lady's parts) ultrasound.

Put the abortion issue aside - do you think the government has the right or should have the power to EVER require a woman to have an invasive procedure like this? Also, what exactly is the point of this procedure in this context?

And more perplexing, this bill was sponsored by a Republican woman who is on record as saying that the government had no right to require young ladies to get the HPV vaccine. Explain that logic to me... Who wants a nanny state?

[Jarhead0331]

I'm fairly concerned with the Virginia law about to be signed into effect that forces women who wish to go through a legal abortion to have a transvaginal (yes, that means the giant prod inserted inside the lady's parts) ultrasound.

Put the abortion issue aside - do you think the government has the right or should have the power to EVER require a woman to have an invasive procedure like this? Also, what exactly is the point of this procedure in this context?

And more perplexing, this bill was sponsored by a Republican woman who is on record as saying that the government had no right to require young ladies to get the HPV vaccine. Explain that logic to me... Who wants a nanny state?

Just like you love it when conservatives argue against State's rights where firearms are concerned, I love it when liberals pull the fascist card.  Calling this Republican initiative "Orwellian" is humorous when considering Obama's blatant assault on religious freedom.

That being said, I do not personally support this law...particularly while abortion is still legal. See, Roe v. Wade.  However, you ask what the point is?  I do see one.  Abortion is only legal up to a certain point. Once a fetus has reached a certain stage of development (I believe 24 weeks, but don't quote me) abortion is no longer a viable option.  The ultrasound is the only way to confidently determine the actual age of the fetus to ascertain whether the abortion is legal...a small price to pay for chosing to end a life, don't you think?

As a side note, I do not believe the procedure is as "invasive" as some make it out to seem...ie. its not rape.  I believe this procedure is done in the ordinary course quite frequently, and may even be routine.  A birdie in a tree told me that this procedure is done in Europe every time a woman goes to an OBGYN.

[son_of_montfort]

Just like you love it when conservatives argue against State's rights where firearms are concerned, I love it when liberals pull the fascist card.  Calling this Republican initiative "Orwellian" is humorous when considering Obama's blatant assault on religious freedom.

This seems an interesting rhetorical tactic. You put controversial words in my mouth. I said neither the word "Orwellian" or "fascist." I merely asked if people were comfortably with allowing the government to mandate a medical procedure that is personally invasive? I seem to remember a lot of people here fairly against the invasive TSA security changes - is this not something very similar? Don't make what I said more than what I said - I don't see the return of the Third Reich via ultrasound, but I also don't see anything humorous about concern that a state government thinks it has the right and power to do this.

And we don't see eye to eye on the assertion of "Obama's assault on religious freedom." But that is another thread's topic. I don't believe the President has ever stopped anyone from praying or attending their services...  :P

As a side note, I do not believe the procedure is as "invasive" as some make it out to seem...ie. its not rape.  I believe this procedure is done in the ordinary course quite frequently, and may even be routine.  A birdie in a tree told me that this procedure is done in Europe every time a woman goes to an OBGYN.

The highlighted area makes the rest of your point irrelevant to me. Have you had one done to you? Of course not. Have you been in the room when one has been done? I have, and it isn't pleasant. Is it rape, no. But when my wife had it done, it was her choice to do so - it was not mandated. Is the procedure routine, in some situations, but in those situations it is the patients' choice.

I have several French and English friends with children and I have never heard that this was preferred practice over external ultrasounds. But at any rate, my point about it being the patient's choice is the same.

[LongBlade]

None of us wants an intrusive government beyond what is minimally necessary.

I will say this: Jarhead is correct that when it comes to issues of life, proving there is an abiding interest that often requires intervention of the state. I'm not saying I agree with the law - I'm unfamiliar with the specifics and their implications beyond what has been written here.

Also, note the 10th Amendment gives the States wide authority to act, since government at the Federal level is quite restricted. It is absolutely a state issue, though the question remains as to whether having an abortion deprives a fetus of the right to life, liberty and the pursuit of happiness...