How One Judge Could Be the Key to Overturning Roe v. Wade

Oct 15, 2014 at 7:27 AM ET

It’s no secret that Tom Parker is a crusader.

As a justice on the Alabama Supreme Court, Parker has continually succeeded in creating a legal shield for unborn fetuses as a way to protect them from reckless mothers and third-party violence—something that seems outright callous to argue against.

But make no mistake: His real intentions are far more divisive. By granting fetuses full legal status in as many contexts as possible, Parker is also helping to create a judicial atmosphere where abortion qualifies as first-degree murder.

Welcome to the murky world of personhood laws, a legal strategy that could shake America’s pro-choice movement to its foundations.

During the oral arguments for Roe v. Wade, the landmark U.S. Supreme Court case that granted women the right to seek legal abortions in 1973, justices asked Roe’s lawyer, Sarah Weddington, what would happen if a fetus were granted the rights of a person under the U.S. Constitution. “I would have a very difficult case,” she replied, acknowledging the loophole in the ruling that could ultimately lead to its undoing.

Even so, Justice Harry Blackmun wrote in his majority opinion that the Supreme Court could find no basis for such a status, before rather ominously adding, “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed.”

This has become the central strategy of the pro-life movement in recent years. By arguing that life does indeed begin at conception, so as to grant equal protections to the unborn, the activists hope to weaken reproductive rights and eventually dismantle Roe altogether.

And in claiming that “person” and “child” should also mean “unborn child,” state supreme courts like Parker’s have been able to use miscarriages, substance abuse issues and common accidents, like falling, as justifications for convicting pregnant mothers of crimes against their fetuses.

What’s more, other states are pushing even harsher legislation. On Nov. 4 Colorado is expected to vote on Amendment 67—a sweeping initiative that would overhaul the state’s entire criminal code by applying it to unborn children—while North Dakotans will decide on Measure 1, which would amend the state’s entire constitution to recognize the “inalienable right to life” at every stage of human development. By this logic, abortion could be interpreted only as murder.

As Lynn Paltrow, executive director of the nonprofit National Advocates for Pregnant Women, recently said at a campaign protesting the Colorado amendment: “What they are asking the citizens of Colorado to do is put in place a set of laws that begins by saying, ‘We believe a woman who has an abortion is guilty of first-degree murder and deserves either life in prison or the death penalty.’ There are no exceptions.”

Similar initiatives are sure to come down in other states, and the first to pass will almost certainly be challenged in court, which is what pro-life advocates are really hoping for. “Their goal is to get to the U.S. Supreme Court—as quickly as possible, while conservatives still dominate,” writes Nina Martin in a recent profile of Judge Parker on Pro Publica, which describes him as “a pivotal figure in the so-called personhood movement.”

In his majority opinions and other writings for Christian law journals, Parker, who attended Dartmouth and Vanderbilt, has essentially outlined a battle strategy for the final push in the war against abortion, which has already been replicated by other pro-life judges and lawyers. “What Justice Parker has done,” Paltrow says, “is explicitly lay out the road map for overturning Roe v. Wade.

Here are three ways he plans to do it:

1) Take advantage of people’s emotions.

The genius in going after drug-using mothers who harm their fetuses (or put them at risk for harm) is that people are unlikely to have sympathy for such women. As a result, “the idea that a fetus has rights separate from its mother’s has taken root in the law and flourished,” writes Martin, “even when the more controversial subject of fetal personhood is not directly invoked.”

2) Write lengthy opinions that poke holes in Roe.

As a way to publicize his strategies for other pro-life judges and attorneys to potentially replicate, Parker writes thorough opinions for cases that could potentially play a role in legal abortion’s demise.

In a 2013 Alabama case where two women were charged with harming their fetuses by ingesting drugs while pregnant, Parker wrote a 55-page main opinion, following by a 20-page concurring opinion. His goal was to highlight all of the ways that existing laws currently grant full rights to the unborn, which he laid out statute by statute. “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.”

In another case where a woman blamed her miscarriage on negligence on the part of her doctors, Parker challenged the idea of viability.

Under the existing Alabama law, wrongful death suits were only allowed in cases where the fetus was developed enough to be able to exist outside the womb, but Parker’s court overruled that limit. In his concurring opinion, he argued that the idea of viability was inconsistent with technological advances in science and medicine, therefore asserting that an integral part of Roe—that states cannot ban abortion before the point of viability—was “arbitrary,” “incoherent” and “mostly unsupported by legal precedent.” 

3) Appeal to the heart of the religious right.

Parker has never shied away from his evangelical Christian beliefs and portrays laws that aren’t in tune with the faith as attacks on the religion itself. According to Martin’s profile, he has “gained a kind of celebrity in the world of Christian talk radio,” and he often speaks at Christian conferences.

Before winning a seat on the bench, he also worked for the Foundation of Moral Law, a think tank that believes the Bible should be the nation’s governing text. “When judges don’t rule in the fear of the Lord, everything’s falling apart,” he once said, citing the Book of Psalms. “The whole world is coming unglued.”