October 10, 2014


This Alabama Judge Has Figured Out How to Dismantle Roe v. Wade : Tom Parker's writings fuel the biggest threat to abortion rights in a generation (Nina Martin, 10/10/14, New Republic)

In the nine years Parker has now served on the court, he has made the most of his opportunities. Child custody disputes, for instance, have made good occasions to expound on the role of religion in parental rights. ("Because God, not the state, has granted parents the authority and responsibility to govern their children, parents should be able to do so unfettered by state interference," he wrote in one case.) But Parker has been the most creative in his relentless campaign to undermine legal abortion. Again and again, he has taken cases that do not directly concern reproductive rights, or even reproductive issues, and found ways to use them to argue for full legal status for the unborn.

Those efforts have made Parker a pivotal figure in the so-called personhood movement, which has its roots in a loophole in Roe v. Wade. While that 1973 ruling was creating a broad new right to abortion grounded in a constitutionally protected right to privacy, an often-overlooked passage left an opening for those who would seek its undoing. During oral arguments, the justices had asked Roe's lawyer what would happen if a fetus were held to be a person under the Constitution. "I would have a very difficult case," she had replied. In his majority opinion, Justice Harry Blackmun noted that the Supreme Court could find no basis for such status, before adding, "If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed."

Roe's fiercest critics immediately took up the challenge, launching a push for a constitutional amendment affirming that life begins at conception. [...]

The basic holding of Roe obviously remains in place, and more than one million legal abortions are performed in the United States every year. Yet the personhood movement has made significant inroads. Today, 38 states have fetal-homicide statutes that make it a crime to cause the death of an unborn child during an act of domestic violence, for example, or while driving drunk. At least 15 have laws that make the pregnancy of a homicide victim an aggravating factor that can lead to the death penalty. And more and more jurisdictions have begun policing pregnant women themselves. In almost every state, women have been arrested or detained for exposing their fetuses to illegal drugs; in more than half of them, mothers can lose some or even all of their custody rights if they or their newborn tests positive for controlled substances. In some places, legislators have written laws expressly authorizing such steps. (Tennessee's new statute goes the furthest, allowing pregnant drug-users to be charged with criminal assault.) More commonly, it's constables and prosecutors who've taken the initiative, reinterpreting existing laws to detain and arrest mothers. "One clever thing about using drug cases this way," said Sara Zeigler, a feminist scholar and dean at Eastern Kentucky University, "is that the average person is not going to be at all sympathetic" to a pregnant woman who gets high. Thanks to moves such as these, the idea that a fetus has rights separate from its mother's has taken root in the law and flourished, even when the more controversial subject of fetal personhood is not directly invoked.

A big reason that these piecemeal personhood triumphs haven't translated into something more sweeping is because courts haven't been willing to explicitly take up the issue. "If you are a careful, strict constructionist kind of judge, you don't necessarily connect the dots," Halva-Neubauer said. Parker not only connects the dots, "he uses a rocket launcher to go after these cases and say, Hey, this is a case that could be used to overrule Roe, and I'm going to show you how." In 2011, for example, Parker and his fellow justices heard a case involving a wrongful death lawsuit brought by a woman who blamed her miscarriage on the negligence of her doctors. Under Alabama precedent, such suits weren't allowed unless the fetus had developed to the point where it could survive outside the womb. But in Hamilton v. Scott, the court voted to strike down that limit. Parker wrote the majority opinion. 

Then he wrote some more. As a judge, Parker has developed the decidedly unusual habit of authoring concurring opinions to his own majority rulings in cases that hold particular interest for him. In his concurrence to Hamilton, he cited advances in medical and scientific technology as part of a larger, painstaking argument asserting that a centerpiece of Roe--that states cannot ban abortion before the point of viability--was "arbitrary," "incoherent," and "mostly unsupported by legal precedent."

Zeigler marvels at how Parker has used the concurrence to strategic effect. "It's like he's writing a law-review article without having to go through that process, plus he gets a much wider audience," she said. And unlike a dissent, a concurrence conveys a certain legitimacy--the idea that the author is on the winning side. "It is much likelier to be noticed and captured and repeated in future cases."

"If you are a careful, strict constructionist kind of judge, you don't connect the dots," says one anti-abortion expert. Parker not only connects the dots, "he uses a rocket launcher to go after these cases."
In 2013, a case even better suited to Parker's cause landed on the Alabama Supreme Court docket. One of the plaintiffs, Hope Ankrom, from Coffee County south of Montgomery, had pleaded guilty after her son tested positive for cocaine and marijuana at birth. The other, Amanda Kimbrough, from rural northwestern Alabama, had used methamphetamine while pregnant, giving birth 15 weeks prematurely to a boy who soon died. Facing the possibility of life in prison, she opted for a plea deal and a ten-year sentence in the notorious Tutwiler state penitentiary for women. But no Alabama laws specifically authorized the women's arrests and convictions. Instead, prosecutors had charged them under a felony "chemical-endangerment" statute enacted in 2006 to protect children from the noxious fumes and explosive chemicals that make home-based meth labs so dangerous.

Lawyers for Ankrom and Kimbrough argued that the state had grossly overreached, pointing out that legislators had debated--and rejected--expanding the meth-lab law to cover pregnant women. Parker, along with five other justices, didn't buy it. He declared that the chemical-endangerment law did indeed apply to fetuses exposed to drugs in the womb. But again, Parker didn't leave it at that. His main opinion in Ex Parte Ankron and Kimbrough ran 55 pages. His concurrence ran another 20.

This time, Parker's goal was to establish the many ways that existing statutes recognize fetuses as persons with legally enforceable rights. The document is a kind of masterpiece of pro-life reasoning. "He's someone who really takes time to read history and the development of jurisprudence," said Mat Staver, the head of Liberty Counsel and a leading Christian legal theorist. "He's not a surface thinker." Step by step, Parker lays out his evidence: laws that give inheritance rights to unborn children, laws that ban pregnant inmates from being executed, laws that give fetuses legal guardians for the purposes of protecting their interests, laws that allow parents to sue for damages if fetuses are injured or killed as the result of negligence or some other wrongful act. Several pages of the concurrence consist almost entirely of lists of statutes from around the country conferring fetal rights. "Today, the only major area in which unborn children are denied legal protection is abortion," he concluded, "and that denial is only because of the dictates of Roe."

This past spring, as if to punctuate its reasoning, the Alabama Supreme Court confronted a virtually identical case, and, with Parker again writing the majority opinion, reached a virtually identical conclusion. In this concurrence, Parker called on the U.S. Supreme Court to resolve the matter of full fetal rights once and for all.

Posted by at October 10, 2014 7:17 PM

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