In what may be the first lawsuit of its kind, an Alabama man is suing an abortion clinic on behalf of a fetus, which he claims “died” a “wrongful death” because his ex-girlfriend decided not to carry her unwanted pregnancy to term.” It’s a case reproductive rights groups are calling “chilling,” arguing that it shows the logical outcome of the burgeoning personhood movement in the U.S. — one that would grant full legal rights to fetuses at the expense of the women carrying them.
On February 6, Ryan Magers filed a wrongful death lawsuit in Madison County against the Alabama Women’s Center, where he says his former girlfriend got the abortion procedure, as well as three of the business’ employees and the pharmaceutical company that distributed the abortion pill “designed to kill unborn children.” In the suit, Magers is listed as a “personal representative” of the aborted fetus’ estate; the fetus is referred to as “Baby Roe,” presumably in a nod to Roe v. Wade.
Per the lawsuit, Magers’s former partner initially informed him of both her pregnancy and her decision to terminate it January 2017, at which point “he pleaded with the Mother not to kill Baby Roe.” Despite Magers’s attempt to intervene, the woman chose to go through with the procedure at six weeks into her pregnancy — when the fetus would have been approximately the size of a pomegranate seed.
According to the Washington Post, the person Magers referred to as his former girlfriend in the lawsuit was 16 years old and a high school senior at the time of her pregnancy. Magers was 19 at the time. The girl’s father — who spoke to the outlet under the condition of anonymity in order to protect his daughter’s privacy — said his family was “distraught” over the lawsuit, and that they had supported her decision to have an abortion. He also claimed that Magers pressured his daughter to have sex.
“I can’t believe we are here now,” he said.
On March 4, Madison County Probate Judge Frank Barger recognized “Baby Roe” as a person with legal rights and named Magers the representative of the aborted fetus’ new estate. This was largely possible through the state constitution’s extreme anti-abortion personhood amendment, which was passed last November; under the statute, fetuses are recognized as legal persons from the moment of conception.
Alabama is one of three states with a “personhood” law in place, the result of a nationwide movement that’s grown increasingly fervid in recent years as anti-abortion groups feel that Roe v. Wade has come under serious threat. “The case in Alabama is chilling because it represents the real-life consequences of anti-choice ‘personhood’ policies, which, by design, seek to demote the fundamental rights of women,” Adrienne Kimmell, the vice president of NARAL Pro-Choice America, said in a statement to the Cut. “To see it playing out in this case in Alabama should serve as a grave warning sign.”
Magers’s lawyer, Brent Helms, told the Cut that he could see this case setting a legal precedent that would lead to the end of abortion in the state. “If wrongful death is granted in this case, then I would not foresee any abortion clinic or even manufacturer of an abortion pill wanting to come to the state of Alabama because they could be held liable for the killing or the termination of the life of a fetus,” he said. “Abortion will essentially be eliminated in the state of Alabama.”
But Lucinda Finley, a law professor at the University of Buffalo who specializes in reproductive rights and equal protection law, isn’t so convinced that this case could set the precedent for which Helms hopes. In an email to the Cut, she pointed out that the Supreme Court struck down state laws that would require a woman to get the consent of “or even to inform” the would-be father of the child in a 1992 ruling in Planned Parenthood v. Casey. That, she says, is the lawsuit’s “legal flaw.”
She also noted that though Alabama permits wrongful death suits tied to a fetus, the death must be a result of a “legally wrongful act in order to have a successful claim.”
“In this case, the clinic that provided an abortion that the woman wanted and consented to did not perform any wrongful act,” she said. “A third party who injures a pregnant woman and thereby ends her wanted pregnancy against her will is a vastly different situation than a woman who decides to end her own pregnancy.”
The clinic, which did not respond to the Cut’s request for comment, has until April 1 to respond to the lawsuit.
This post has been updated.