By John C. Meehling   |   November 26th, 2011

viability in dayton ohioThe legal concept of viability, or exactly when it is that life begins, is a hot topic both in and out of the courtroom.  In August of 2008, the presidential candidates were attending a forum at the Saddleback Church in Lake Forest, California, when the moderator and church pastor, Rev. Rick Warren, asked the candidates, “At what point does a baby get human rights?”  You may remember that then Senator Barack Obama replied to Warren by saying that determining when life begins, is “above his pay grade.”  Such an “artful dodge” is no longer acceptable in more and more forums, especially in the courtroom, because determining when to grant an unborn fetus human rights can have profound impact on both criminal and civil litigation.

On one end of the scale is thinking similar to that stated by the American Civil Liberties Union (ACLU) and pro-choice advocates in an article titled, “What’s Wrong with Fetal Rights”.  In that article, the group stated, “we have serious reservations about legislation designed to protect fetuses, because it can endanger women’s rights by reinforcing claims of ‘fetal rights’ in the law.”  On the other end of the scale would be any embryologist or “pro-life” advocate who would hold that life begins at conception or fertilization.

Roe v. Wade established a strict trimester guideline as to when a fetus is granted any rights as a human being.  Later, Planned Parenthood v. Casey created the current “viability” standard which points to the moment that a fetus will be recognized as being a child with rights or as a human being separate from its mother.  (Viability being defined as the ability to live on his/her own if removed from the mother’s womb; the ability to exist independently is usually around 24-28 weeks into a pregnancy.)  That is the present standard Ohio courts use to determine fetal rights.

Recently, due to advancements in scientific evidence, a few states have adopted “Pain-Capable Unborn Child Protection Acts”, based upon the fact that we now know a fetus can have physiological and behavioral responses to pain stimuli as early as 20 weeks after gestation.

In September, though, the Alabama Supreme Court created new precedent when it issued a unanimous decision that will expand legal protections for unborn children at any stage of development, not just viability.  In April Mack, as the mother of Baby Mack, v. Thomas Carmack, the Court ruled that the state’s wrongful death statute applied to an unborn child at any stage of development, regardless of viability.

April Mack was just 12 weeks pregnant with Baby Mack when she and her fiancé were in a car accident that resulted in the miscarriage of their unborn child.  April Mack sued the other driver for her own injuries as well as for the wrongful death of her unborn child.  The County Court found that the baby was not viable and, therefore, could not enjoy the protection of the wrongful death statute.  The Alabama Supreme Court disagreed.

Alabama’s criminal fetal homicide law had already applied to an unborn child from the moment of conception.  With the Mack decision, the Alabama Justices merely reasoned that if an unborn child is protected under the state’s criminal law to a certain degree, then that child should also be protected under the state’s civil law to the same degree.  Now, an offender can be tried both criminally and civilly for the death of an unborn child, regardless of viability.

The Mack decision will undoubtedly please trial attorneys and pro-life advocates because it broadens the legal recognition of the unborn.  It will inspire other states, possibly Ohio, to follow suit and to pass similar legislation.  The case will probably make its way to the United States Supreme Court because it has ramifications for the abortion debate.

We will keep you advised on this extremely important subject!

About the Author:  John Meehling is an associate attorney at Holzfaster, Cecil, McKnight & Mues located in Dayton, Ohio.  To learn more about John, or if you have further questions on viability and how it may relate to your case, click here for contact information.

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About The Author: John C. Meehling
Attorney John C. Meehling is a Family Law Attorney from Dayton, Ohio, and contributor to the Ohio Family Law Blog. Attorney Meehling recently joined the Dayton law firm of Holzfaster, Cecil, McKnight & Mues on November. 1, 2010.

Viability: The Beginning of Human Life
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