In an unprecedented move, a probate court in Madison County, Alabama, has recognised a woman’s aborted foetus (dubbed “Baby Roe”) as a person with rights, allowing a man to proceed with his lawsuit against the women’s health clinic where his ex-girlfriend obtained abortion care two years ago. Ryan Magers says he begged his ex-girlfriend not to have an abortion and that the aim of his lawsuit is to "give a voice" to other men who want a say in a woman's reproductive choices.
First reported by ABC 31 in February, Magers has named Alabama Women's Centre and the pharmaceutical company that makes the so-called “abortion pill” (which is actually two pills containing the medications mifepristone and misoprostol) that terminated the woman's pregnancy in a wrongful death lawsuit. "I'm here for the men who actually want to have their baby," Magers told the station at the time. "I just tried to plead with her and plead with her and just talk to her about it and see what I could do, but in the end, there was nothing I could do to change her mind."
In an interview Tuesday with Refinery29, Magers' lawyer J. Brent Helms said that before Mager's ex got the abortion when she was six weeks pregnant, he had sought legal action to try and stop her. "Ryan was all about family. He took on extra jobs to be able to pay for the birth of Baby Roe," Helms said. "He doesn't know why she didn’t want to go through with the pregnancy. He’s not giving me a definitive answer to that question," Helms said. The attorney could also not give an exact age for Mager's ex at the time of the pregnancy, saying she was either 17 or 18 years old. After the abortion, Helms said the couple's relationship fell apart and they broke up.
Helms said the lawsuit isn't about controlling his ex-girlfriend, "it's about the opportunity for family. I think Ryan is so family-oriented, he badly wanted a child. It's about the opportunity to raise a child." When asked if Magers is considering adopting since he so badly wants a child, Helms said he isn't. "At this point, he’s not considered any adoption right this moment, no. The two of them were really close. It was something that they wanted together at the time," he said. In a follow-up email, Helms said the pregnancy was actually unplanned.
Magers' side of the story is the only one being heard, however, as his ex-girlfriend's identity cannot be made public due to laws protecting the privacy of women who undergo the procedure. But Helms said she may be named, depending on how the defendants in the lawsuit respond. "Until it is absolutely necessary, it is not our intent to name Ryan’s [ex-]girlfriend in the suit. When that point arises, we or the defendants will have no choice but to name her," he said.
This man was unable to force his girlfriend to continue a pregnancy and so he’s taking an extreme action to exert control.
Elizabeth Nash, Guttmacher Institute
Helms couldn't answer basic questions on how giving a man decision-making power in a woman's choice to get an abortion or not would play out, like how paternity would be proven so early in pregnancy, who would be responsible for caring for the child if a woman is forced to give birth, and what would happen in cases of rape and incest. "I think the answers to a lot of these questions will have to play out in the future depending on what the court rules," he said. "There could be a situation where a father has to give consent to an abortion, also, our Alabama legislature could carve out exceptions. It’s almost too early to tell."
Although Magers said his lawsuit is about "family," his own attorney revealed it's actually about ending abortion rights. "If we win this case for wrongful death, then the result may be the elimination of abortion altogether in the state of Alabama," Magers told Refinery29. Alabama already has a law on the books that gives foetuses the same rights as people.
He further explained: "This case is about wrongful death so if the abortion clinic is held responsible, if the manufacturer of the pill that terminated Baby Roe’s life is held responsible for Baby Roe’s death, then obviously in the future, if there is an abortion where a father doesn’t agree and a suit for wrongful death is brought, it would create a lot of liability for these abortion clinics ... the manufacturer of the pill, the doctors, for everyone involved."
This explanation is perfectly in line with the pattern of anti-choice activists and politicians working to pass laws to limit access to abortion while working within existing federal laws. These sorts of policies and manoeuvres have led to the closure of dozens of abortion clinics throughout the country. "I think the lawsuit is an attempt to get around fundamental protections in our nation’s abortion law, to undermine a woman’s right to an abortion," Andrew Beck, senior staff attorney with the ACLU's Reproductive Freedom Project, told Refinery29. "It’s definitely unlawful, it’s definitely bad policy, and it’s really designed as an end-run around [Roe v. Wade]." Beck said while he can't predict the outcome of the lawsuit, he believes it is totally incompatible with the constitution. "You can imagine that if every person that sought an abortion could be brought into a lawsuit by an ex-boyfriend and have her decision questioned and interfered with and have the provider sued years later ... that’s clearly the point of this," he said.
Beyond being an attempt to curb access to abortion, Elizabeth Nash, senior state issues manager at the Guttmacher Institute, believes the lawsuit is ultimately about power. "This man was unable to force his girlfriend to continue a pregnancy and so he’s taking an extreme action to exert control," she told Refinery29. The lawsuit can be seen as case of reproduction coercion, when a person seeks to interfere with the reproductive health decisions of a partner, like sabotaging a woman's birth control, removing a condom during sex, and pressuring a woman to get or not get an abortion. Why Magers’ ex-girlfriend chose to terminate her pregnancy is irrelevant as it is her choice and her choice alone. The woman — not Magers — would've been left to deal with the physical and psychological effects of pregnancy. And, she has federal law on her side.
In a statement to Refinery29, Adrienne Kimmell, vice president of communications at NARAL Pro-Choice America, said the case is coming at a time when President Donald Trump and the GOP are ramping up their incendiary rhetoric around abortion. "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, and are a stepping stone in the anti-choice movement’s ultimate goal of criminalising abortion and punishing women," she said. "The dangerous and backward policies, as well as the inflammatory lies, are wholly out of touch with the majority of Americans who support access to legal abortion and believe the government should not intervene."
Alabama Women's Centre and the other defendants listed in the lawsuit have until April 1 to respond.