'The Mother' and Alabama's Baby Roe Case

By Katie McDonough | March 7, 2019 | 8:06pm

Justice Politics

According to Ryan Magers, the lawsuit he filed against the Alabama clinic where his girlfriend had a medication abortion in 2017 is about more than just him. “I’m here for the men who actually want to have their baby,” the 19-year-old told local ABC affiliate WAAY 31. “Even though there’s nothing I can do for the situation I was in, there is something I can do for the future situations for other people.”

Here are the allegations presented by Magers and his attorney Brent Helms to the Madison County Circuit Court, in the case of the pregnancy they are calling “Baby Roe” (emphasis mine):

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In early 2017, Plaintiff’s girlfriend (hereinafter referred to as “the Mother”) discovered that she was pregnant with Baby Roe. Plaintiff became aware of the pregnancy and made it known that he wanted to keep Baby Roe, but the Mother wanted to abort. At some point after discovering that she was pregnant, the Mother set up an appointment to have Baby Roe aborted at Alabama Women’s Center. In between the discovery of the pregnancy and the date of the appointment, Plaintiff repeatedly pleaded with the Mother not to kill Baby Roe.

On February 10, 2017, per the appointment, the Mother went to the Alabama Women’s Center to proceed with the abortion. Baby Roe was approximately six weeks old on February 10, 2017. The Defendants gave the Mother a pill, which she took, that induced the death of Baby Roe. As a result of the Defendants’ actions, Plaintiff’s child, Baby Roe, was killed.

Magners and Helms are hoping to set a legal precedent that builds on laws that already exist, like those in Alabama, to establish fetal personhood in certain legal circumstances. But it is the case’s direct articulation of what it looks like to write a pregnant person out of abortion that makes it so acute. The language of the lawsuit, which was filed with assistance from local anti-abortion group Personhood Alabama, acknowledges the pregnant person only in her capacity as “the Mother”—she is both central to the existence of the case and entirely beside the point, a victim and a person who has done tremendous harm, both to this fetus and to Magners. (“It was just like my whole world fell apart,” he told reporters.) She is the contradictory and disappearing subject of contemporary anti-abortion law, a woman who barely exists at all.

This framing is a product of what some might call the more soft focus anti-abortion movement of the last 15 years, a period during which it became uncouth or at least politically less palatable to call a woman a baby killer or say she should be punished outright for ending a pregnancy. In place of the pregnant person, there is instead legislation that focuses almost exclusively on the scope of the regulatory state (the size of hallways and parking lots, the business agreements made with local hospitals), the fetus, or doctors and other medical practitioners. It’s a legal construction that conceives of pregnancy as something that happens without a body.

The anti-abortion movement’s rhetorical strategies have developed in parallel. There are endless examples of the ways in which the pregnant person has, in recent decades, been either removed from the frame or written off as a victim of circumstance, but you saw both strategies explicitly collide when the president (before he was actually the president) made the mistake of speaking plainly, admitting that criminalizing abortion necessarily means punishing the people who seek them. “There has to be some form of punishment,” then-candidate Donald Trump said nearly three years ago when asked if there should be consequences for people who still have abortions after the procedure has been made illegal. “For the woman?” he was asked by way of clarification. “Yeah,” he replied.

This was the wrong thing to say—the wrong message to send—and so he had to be corrected. “Let us be clear: Punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another,” Marjorie Dannenfelser, president of the Susan B. Anthony List, wrote in a statement responding to his comment. Trump was a recent “convert to the pro-life movement,” she wrote. He was green, but would eventually learn to use the correct rhetorical evasions and contortions. And so he did; later that day, the Trump campaign released a clarifying statement announcing that the sole target of criminal prosecution should be “the doctor or any other person performing this illegal act.” The pregnant person is a “victim in this case” along with “the life in her womb,” it continued.

But as much as this construction seeks to sidestep the question of the pregnant person, or the specific Mother in this case, you can’t actually do it. She’s there all the same. The targets of Magners’ suit are the pharmaceutical manufacturer of the medication used in the abortion and the Alabama Women’s Center for Reproductive Alternatives, but the consequences bleed out. Targeting providers is a strategy of choking off access, which has profound, life or death consequences for people seeking an abortion in the state. Honest speakers, which Trump sometimes accidentally is, can acknowledge as much. Punishment, contrary to what well-resourced and well-practiced anti-abortion advocates like Dannenfelser may say, is absolutely “for” the pregnant person.

The case has moved forward, at least in its first step. “This is the first estate that I’m aware of that has ever been opened for an aborted baby,” Helms said after a probate court recognized both the fetus as a “person” with legal rights and Magners as the representative of its estate. The ruling meant, Magners explained, that “it can further pursue not only me, but other fathers, other future fathers, can pursue it as well.”

Even Helms could acknowledge that the Mother, the pregnant person, is always there. “The mother involved in the cases of Magers and Baby Roe has not been identified, and Helms said he and his client will not name her unless they must,” WHNT News 19 reported this week. That sounds a lot like a threat. That sounds like an intended precedent, too.