Alabama Supreme Court Opinion Rules that “Child” Includes “Unborn Child”

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Montgomery, AL – Today, in an 8-1 decision authored by Justice Tom Parker, the Alabama Supreme Court held that the word “child” in Alabama’s chemical-endangerment statute applies to the born and unborn in Ex parte Sarah Janie Hicks. This decision follows a similar one handed down last year by the Alabama Supreme Court in Ankrom v. State , where Alabama’s highest court also ruled that the word “child” includes the “unborn child.” In that case, Liberty Counsel’s amicus brief arguing that the protection of the unborn is in keeping with the protections afforded the born in various areas of the law.

“In an age where some judges do not know the difference between the Declaration of Independence and the Constitution, or do not even care, finally the Alabama Supreme Court springs forth with a ray of light,” said Mat Staver, Founder and Chairman of Liberty Counsel. “The opinions by Chief Justice Roy Moore and Tom Parker are well-reasoned, grounded in history and natural law, and completely demolish the fallacies of the U.S. Supreme Court’s abortion decisions. One day soon the United States Supreme Court’s abortion opinions will come toppling down like a house of cards. Then we will look back at history like we now do with Nazi Germany and wonder why our generation was so blind to the personhood of the preborn child,” said Staver.

Ex parte Sarah Janie Hicks involved the conviction, following a guilty plea, for chemical endangerment of a child. Hicks ingested cocaine while pregnant with “J.D.,” which resulted in J.D. testing positive for cocaine at the time of his birth. Hicks argued that the word “child” in the chemical-endangerment statute did not apply to an unborn child. The trial court rejected the argument presented by Hicks. Relying on the Alabama Supreme Court’s decision in Ankrom. v. State, the Criminal Court of Appeals affirmed the trial court.

The Alabama Supreme Court ruled that “the plain meaning of the word ‘child,’ as that word is used in the chemical-endangerment statute, includes an unborn child.” The opinion goes on to state that “the State has a legitimate interest in protecting the life of children from the earliest stages of their development and has done so by enacting the chemical-endangerment statute.”

The concurring opinions by Chief Justice Roy Moore and Justice Tom Parker are particularly significant because they reveal the flaws in the U.S. Supreme Court’s abortion decisions, beginning with the 1973 case of Roe. v. Wade . Excerpts of their concurring opinions are set forth below:

Chief Justice Roy Moore’s Concurring Opinion:

“Denominated in the United States Code as one of the ‘Organic Laws of the United States of America,’ the Declaration acknowledges as ‘self-evident’ the truth that all human beings are endowed with inherent dignity and the right to life as a direct result of having been created by God.”

“God, not governments and legislatures, gives persons these inherent natural rights . . . Government, in fact, has no power to abridge or destroy natural rights God directly besets to mankind and indeed no power to contravene what God declares right or wrong.”

“As the gift of God, this right to life is not subject to violation by another’s unilateral choice.” “From local to international, all law flows from the divine source: it is the law of God. The law of nature and of nature’s God binds all nations, states, and all government officials—from Great Britain to Germany to Alabama—regardless of positive laws or orders to the contrary.”

“States have an affirmative duty to protect unborn human life under the Equal Protection Clause of the Fourteenth Amendment.”

“Any state’s discriminatory failure to provide legal protection equally to born and unborn persons under, for instance, its statutes prohibiting homicide, assault, or chemical endangerment violates, therefore, the Equal Protection Clause of the United States Constitution.”

“Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that all men are created equal and are endowed by their Creator with certain unalienable rights encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and nature’s God, who created human life in His image and protected it with the commandment: ‘Thou shall not kill.’”

Justice Tom Parker’s Concurring Opinion:

“In contrast to the reasoning of Roe and Casey , Alabama’s reliance upon objective principles has led this court to consistently recognize the inalienable right to life inherently possessed by every human being and to dispel the shroud of doubt cast by the United States Supreme Court’s violation of the law of noncontradiction.”

“Liberty will continue to find no refuge in abortion jurisprudence until courts refuse to violate the law of noncontradiction and, like Alabama, recognize an unborn child’s inalienable right to life at every point in time and in every respect.”

“[T]here is no valid basis for the viability standard.”

“[F]rom the child’s earliest stages of development, the existence of an unborn child is separate from that of its mother’s. Accordingly, Alabama has an interest not only in promoting a sustainable society and culture that appreciates life, but also in securing the blessings of liberty by protecting the right to life inherent in the new life itself.”

“The unborn child cannot logically be a separate and distinct human for the purposes of one abortion procedure but not another. Protecting the unborn child’s right to life at all stages of development would eliminate the contradictory reasoning of the Court’s abortion decisions and dispel the shroud of doubt obscuring the unborn child’s right to life.”

“Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer? Such irrational protection defies logic. Recognition of a child’s right to life from the earliest stages of its development would dispel the shroud of doubt from this area of jurisprudence and avoid unequal protection of the two children.”

“Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development. Treating an unborn child as a separate and distinct person in only select respects defies logic and our deepest sense of morality.”

“Courts do not have the luxury of hiding behind ipse dixit assertions. The United States Supreme Court has attempted to do so by setting the line for state protection of unborn children at viability in the area of abortion. It is in fact comforting to witness the realist that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. To dispel the shroud of doubt shadowing our nation’s abortion jurisprudence, courts must have the courage to allow the law of noncontradiction to dismantle the ipse dixit reasoning of Roe, Casey, and Stenberg and recognize a child’s inalienable right to life at all stages of development. Until then, our grief is not for the Constitution alone, we also grieve for the millions of children who have not been afforded equal value, love, and protection since Roe.”

On page 69 of the opinion, Justice Parker quotes from a Liberty University School of Law Review article written by a graduate of Liberty University School of law, Martin Wishnatsky, Ph.D., J.D.. The article is The Supreme Court’s Use of the Term “Potential Life”: Verbal Engineering and the Abortion Holocaust, 6 Liberty U.L. Rev. 327, 342-43 (2012). Dr. Wishnatsky interned with Liberty Counsel during law school.

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