Fetal Homicide Case Could Send ‘Roe v. Wade’ Back To Court

"I urge the Supreme Court of the United States to reconsider the Roe exception"

A man wears tape over his mouth during protests at the 44th annual March for Life on January 27, 2017 in Washington, DC. Anti-abortion activists are gathering for the 44th annual March for Life in Washington, protesting the 1973 Supreme Court decision.
JIM WATSON / Staff / Getty Images

The U.S. Supreme Court could be forced to review Roe v. Wade sooner than people think following an Alabama high court decision to affirm the state's current fetal homicide law.

According to The Washington Times, the Alabama fetal homicide law stemmed from a recent case in which a man was convicted of double-homicide for murdering his wife, Jessie Livell Phillips, when she was eight months pregnant. The jury cited the 2006 law defining a child in utero as a "person."

After being sentenced to death by the court, the convicted murderer appealed the decision to the state Supreme Court, alleging that unborn children do not have the same protections as those who are born. The court rejected his case, with Justice Tom Parker declaring it a "logical fallacy" for the government to declare homicide in the case of a man murdering a pregnant woman but not when a woman gets an abortion — particularly a late-term abortion, which can be done up to the moment a child is born.

While pro-lifers are torn on whether the Alabama law is the best course of action against Roe, they do acknowledge that fetal homicide laws reveal a serious case of cognitive dissonance.

"Fetal homicide laws acknowledge what science has already proven: that a unique human life begins at the very moment of fertilization. Abortion laws reject that reality," said pro-life advocate Lila Rose of Live Action.

As noted by The Washington Times, a full 38 states currently have laws on the books that outline some variation on fetal homicide, all of which grant an exception to pregnancy termination for abortion. Justice Parker calls this the "Roe exception."

"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," he wrote in his concurring opinion.

Pro-choice advocates see the glaring logical inconsistency and have elected to double-down in the opposite direction by calling for an end to fetal homicide laws, if they do not protect all pre-born humans. Lynn Paltrow, executive director of National Advocates for Pregnant Women, says the laws can be abused to imprison women that abuse drugs and others who lose their child through other means.

"The real question is in what manner can women be deprived of their standing as constitutional persons?" Paltrow said.

While it might be true that some women could be wrongfully accused of fetal homicide, the laws also give women a chance to sue for instances outside their control that resulted in their babies' death.

Conversely, 23 states also have laws on the books prohibiting authorities from executing pregnant women until after their child is born.

Whether or not the Supreme Court under the newly-minted Justice Brett Kavanaugh will take the case remains to be seen. Though the conservative Justice has expressed dislike for the Roe decision in some of his past comments, there is no telling if that will sway him enough to overturn a law that has now been affirmed twice by the Supreme Court, albeit with increased restrictions on Roe's guarantees each time.

Most likely, the Supreme Court will not hear a direct challenge to Roe and will instead hollow it out by affirming certain states in their right to put severe restrictions on abortion access, such as fetal heartbeat bills and bans on abortion after 20 weeks of pregnancy.

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