In a concurring opinion, Justice Tom Parker of the Supreme Court of Alabama called on the nation’s highest court to overturn Roe v. Wade (1973) and remove the last major obstacle to the states’ right to enact protections for the unborn.

Earlier this month, the Supreme Court of Alabama affirmed that Jesse Livell Phillips will face the jury-recommended death penalty for the murder of his young wife and their unborn child. Prosecutors used Alabama’s Brody Act, one of several laws in Alabama that legally recognize the personhood of the unborn.

Justice Parker agreed with the outcome and wrote separately to denounce what he calls the “Roe exception.” Because of the U.S. Supreme Court’s holding in Roe, he writes, “the only major area in which unborn children are denied legal protection is abortion.” The “unborn child’s fundamental, inalienable, God-given right to life is the only right the states are prohibited from ensuring . . . .”

His proffer comes at a time when advocates on both sides of the life debate are keeping a close watch on the new makeup of the U.S. Supreme Court and how it might rule in a case that allows it to revisit the holding in Roe. But for years Justice Parker has urged that the decision in Roe is outmoded, that the holding in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) meant to address the decision in Roe only created more issues, and that the unborn are “entitled to the full protection of law at every stage of development.”

Many (though not all) state legislatures agree. Americans United for Life comprehensively documents the “legal recognition of the unborn and newly born” available in every state. Another article covers the numerous state laws governing crime, tort, health care, property, and guardianship that recognize the personhood of the unborn.

But Justice Parker points out that “in spite of voluminous state laws recognizing that the lives of unborn children are increasingly entitled to full legal protection, the isolated Roe exception stubbornly endures.”

At least two courts have ruled on the side of life in cases about statutes requiring abortion clinics to have hospital admitting privileges. But a case from the U.S. Court of Appeals for the Seventh Circuit may present the opportunity to strike at the heart of the matter and revisit the aberrational decision in Roe. If the justices on the U.S. Supreme Court take up the case on this ground, we hope they heed Justice Parker’s call for the restoration of the power of the states to protect the lives of the unborn in all areas of the law.