As we approach the end of June, all eyes are on the U.S. Supreme Court as it releases its most consequential decisions of this term. The biggest among them is Dobbs v. Jackson Women’s Health Org., in which the Supreme Court has been asked to overrule Roe v. Wade. I have written extensively about that case for 1819 News recently. But today, I want to highlight the courage and relentlessness of Alabama’s Chief Justice Tom Parker, who played a role in getting the U.S. Supreme Court to take Dobbs.
For years, Chief Justice Parker has taken nearly every opportunity to speak on the personhood of the unborn. Over the last 11 years, Justice Parker has spoken at least 10 times on this issue, arguing that unborn children are people made in the image of God, that the Constitution guarantees their right to life, and that Roe’s logic makes no sense. I have never seen him pass on an opportunity like that.
One instance in particular should be noted. In 2012, then-Associate Justice Parker authored the Court’s opinion in Hamilton v. Scott, which held that a mother could pursue a wrongful-death claim against a doctor who causes the death of her baby before it reached the point of viability. If you’re not familiar with the term “viability,” that refers to the point where a baby could survive outside the mother’s womb. For a long time, it was supposed that if a person caused the death of an unborn child, then the mother could bring a wrongful death claim only if the baby had reached the point of viability. Under Justice Parker’s leadership, the Alabama Supreme Court unanimously held the opposite.
But Justice Parker did not stop there. Parker wrote a concurrence to his own majority opinion, gaining the votes of three other justices but not the court. In this concurrence, Justice Parker went out of his way to say that Roe v. Wade’s viability standard did not apply beyond the abortion context. But after that, he went one step further and argued that Roe’s viability standard made no sense even in the context of abortion. He picked apart Roe’s logic when it came to viability.
Fast-forward nine years later. When Mississippi asked the Supreme Court to take Dobbs, one of its major points was how Roe’s viability standard didn’t make any sense. And whose writing did Mississippi draw on multiple times to make that point?
Tom Parker’s writing in Hamilton.
As you may know, the Supreme Court takes only about 1% of the cases that it is asked to take. Thus, getting the Supreme Court to take your case is often the hardest part of Supreme Court litigation. Thank God it took Dobbs, but it never would have gotten the chance to urge the Court to overrule Roe unless it could get the Court to take the case in the first place. Tom Parker’s writing in Hamilton helped make that happen.
Here’s the point: You don’t need to be a Supreme Court Justice to make a valuable contribution in the fight for life or similar issues. State supreme court justices can make a huge impact. If Roe gets overruled, then Alabama’s Chief Justice deserves some credit.
Few lawyers are blessed enough with the opportunity to serve as judges, especially appellate judges whose decisions will be recorded and cited for years to come. So, here’s my question: When opportunities come along like this to make a difference, why do so many appellate judges across the country pass on the chance to speak up?
Now to the credit of the Alabama Supreme Court, many justices do take that opportunity. Several justices joined Justice Parker’s writing in Hamilton and his writings in other cases when he addressed the right to life. Justice Jay Mitchell, one of the Alabama Supreme Court’s newest justices, is emerging as a leader like Parker with a similar hunger to fight for fundamental issues. He has even caught the attention of Justice Clarence Thomas, who is taking a set of clerks from Mitchell. And of course, an op-ed on judicial courage would not be complete without acknowledging the courage and tenacity of Roy Moore, whose boldness in fighting for marriage, the Ten Commandments, and other issues was truly remarkable and unprecedented.
It remains to be seen whether the Court will overrule Roe in the coming weeks, but I believe that it will. If it does, then I hope that Justice Parker’s fight for life will be an example to appellate judges across the country. Today’s concurrence from a state supreme court justice could lead to tomorrow’s majority opinion from the U.S. Supreme Court.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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