On Application for Rehearing

PARKER, Justice.

This Court's opinion of February 17, 2012, is withdrawn, and the following is substituted therefor.

Amy Hamilton, individually and on behalf of her stillborn son, sued Dr. John Blakely Isbell, Dr. Steven Coulter, Dr. Warren Scott, and the Isbell Medical Group ("IMG") (Dr. Isbell, Dr. Coulter, Dr. Scott, and IMG are hereinafter sometimes referred to collectively as "the defendants"), as well as several fictitiously named defendants, claiming that their negligent and wanton acts had wrongfully caused the death of her son and also caused her to suffer emotional distress. The DeKalb Circuit Court entered a summary judgment in favor of the defendants, holding that a wrongful-death action could not be maintained for the death of an unborn child who died before he was viable. The trial court also held that Hamilton was not in the "zone of danger" and, thus, could not recover damages for emotional distress. We reverse in part, affirm in part, and remand.

Facts and Procedural History

A. Hamilton's pregnancy and medical care1

In December 2004, Hamilton, pregnant with her second child, sought prenatal care from IMG, which had provided Hamilton with prenatal care during her first pregnancy. On Monday, January 10, 2005, Hamilton contacted IMG; she explained that she and her seven-year-old son had a rash that she believed might be "fifth disease," an infection caused by human parvovirus B19. The next day, January 11, 2005, Hamilton had blood drawn at IMG and was told that she would be notified of the results. On Friday, January 14, 2005, an IMG employee told Hamilton over the telephone that Hamilton "had been exposed to fifth disease and had the parvovirus" and that, consequently, she needed to immediately schedule an ultrasound, to be followed by an ultrasound every 2 weeks for the next 10 weeks. Hamilton understood this every-two-weeks ultrasound schedule to have been ordered by Dr. Isbell; Dr. Isbell confirmed this in his deposition.

On Monday, January 17, 2005, Hamilton went to IMG for the first scheduled ultrasound as well as a consultation regarding treatment for fifth disease. However, the doctor with whom Hamilton was scheduled to meet was unavailable; Hamilton was also unable to undergo the scheduled ultrasound because the technician was leaving early. Hamilton's request that she be sent to the adjoining hospital for an ultrasound was denied by an IMG employee; instead, she was told to wait for her next appointment two weeks later.

Hamilton returned to IMG two weeks later, on Monday, January 31, 2005; during the appointment, the doctor she met with, Dr. Coulter, listened to the unborn child's heartbeat and told Hamilton that an ultrasound was unnecessary. He also explained to Hamilton the potential complications of fifth disease and the procedure for potential treatment of her unborn child, if necessary.

On February 18, 2005, Hamilton returned to IMG for her next scheduled appointment; she again requested an ultrasound, but the doctor she met with, Dr. Scott, said that an ultrasound was unnecessary.

On February 25, 2005, Hamilton returned to IMG for her next scheduled appointment, at which an ultrasound was performed. During the ultrasound, IMG's technician noticed that Hamilton's unborn son was not as large as the technician thought he should be at that stage of the pregnancy and that there was "a little fold at the back of his neck which worried [the technician] a little bit because it might be a sign of anemia." The technician told Hamilton "not to be alarmed because [she] would probably be referred to a perinatologist for a second opinion" and that treatment, if any was necessary, would be available at "Kirklin Clinic."

Following the ultrasound, Hamilton met with Dr. Scott, who looked at still photographs from the ultrasound. Dr. Scott told her that a "nuchal fold [was] beginning to form" and that the nuchal fold "was one of the signs of becoming severely anemic and having hydrops," which, he said, "can lead to congestive heart failure." However, Dr. Scott told Hamilton that hydrops "can reverse itself" and that Hamilton should wait two weeks and return to IMG for another ultrasound. Hamilton requested that Dr. Scott refer her to "a perinatologist at Kirklin Clinic," but Dr. Scott told her that IMG could "handle it" at its office. Instead, Dr. Scott told Hamilton to come back in two weeks for another ultrasound, and he promised to refer Hamilton to a perinatologist at that point, if necessary.

Eleven days later, on March 8, 2005, Hamilton visited IMG without a scheduled appointment because she was feeling ill. In her deposition, Hamilton described how, after she tested positive for the flu, Dr. Scott "prescribed Extra Strength Tylenol for body aches, pain, and fever, because he said with that particular situation, there's nothing you can do, you just have to wear it out." Hamilton summarized her symptoms as an "acute illness."

On March 10, 2005, Hamilton returned to IMG; as she explained in her deposition, she was "feeling really bad" and "seemed to be getting worse." She had also noticed "decreased movement" of her unborn child. An ultrasound performed by IMG determined that Hamilton's unborn son had died, probably in the previous 24 or 48 hours; labor was induced, and the child was stillborn on March 11, 2005. Dr. Isbell, Dr. Coulter, and Dr. Scott agree that Hamilton's unborn son had not reached viability, which is to say that, if her son had been born alive on that date, he was unlikely to have survived outside the womb.

B. Hamilton's litigation

On April 28, 2006, Hamilton filed a complaint in the trial court, alleging that the defendants had caused the death of her unborn son "and that the death of her unborn son was wrongful within the meaning of the Alabama Wrongful Death Act, Ala.Code § 6-5-410 (1975)."2 Hamilton later amended her complaint to allege that the defendants' negligence had caused her to suffer "mental anguish and emotional distress."

After completing discovery, the defendants filed a summary-judgment motion on June 7, 2009, arguing that this Court's decisions in Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993), and Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993), did not permit a wrongful-death action where a previable child died before birth: "The Supreme Court of Alabama has held that a plaintiff cannot maintain a wrongful death action for a fetus not viable to live outside of the womb.... As such, summary judgment must be granted on behalf of the Defendants in regard to the wrongful death claim of the fetus." The defendants also argued that Hamilton could not recover damages for her emotional distress because, they said, she had not shown either that she had sustained physical injury or that she was placed at risk of immediate physical harm by the defendants, as required by this Court in AALAR, Ltd. v. Francis, 716 So.2d 1141 (Ala.1998). The defendants stated that Hamilton "failed to demonstrate that she was in the `zone of danger' as required by Alabama law."3

Dr. Isbell and Dr. Coulter separately moved for a summary judgment; Dr. Isbell argued that Hamilton had presented no argument or evidence to show that he had breached the standard of care in his treatment of her.

Hamilton responded to the summary-judgment motions on October 1, 2010. She conceded that Dr. Isbell was entitled to a summary judgment, stating that she "hereby agrees that the `Motion for Summary Judgment on Behalf of Dr. John Blakely Isbell' is due to be granted and concedes that there is no set of facts that, if proved against Dr. Isbell, would entitle her to recover." However, she argued that the summary-judgment motions filed by the other defendants should be denied. Specifically, she argued that in Gentry this Court had "based [its decision to deny recovery for the death of a previable unborn child] on the fact that `there is no clear legislative direction.' 613 So.2d at 1244." Hamilton argued that subsequent legislative actions had provided the courts with that "legislative direction." Specifically, Hamilton argued that several statutes on abortion enacted since Gentry was decided "provided clear direction indicating that the term `minor child' can include nonviable fetuses." On the issue of damages for emotional distress, Hamilton argued that the loss of her unborn child was a physical injury that entitled her to recover damages for her emotional distress; alternatively, she argued that she was entitled to damages for emotional distress under Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (1981), in which this Court permitted a mother to recover damages for emotional distress following the death of her child during birth.

On October 5, 2010, the defendants filed a reply brief in support of their summary-judgment motions. In their reply brief, they argued that "the law in Alabama remains that a plaintiff cannot maintain a wrongful death action for a non-viable fetus and the Alabama legislature has not declared otherwise." Specifically, the defendants argued that the legislature's subsequent, abortion-related legislation did not justify overruling Gentry and Lollar. The defendants also argued that, in seeking damages for her emotional distress, Hamilton did "not state a claim upon which relief can be granted" because, they said, she "misinterprets the holding in Taylor" and her "individual claim is insufficient as a matter of law."

On October 15, 2010, the trial court granted the defendants' summary-judgment motions, concluding:

Hamilton appealed the summary judgment in favor of the defendants other than Dr. Isbell.

After briefing in this case was completed, this Court issued its decision in Mack v. Carmack, 79 So.3d 597 (Ala.2011). In Mack, this Court recognized that a wrongful-death action is available for recovery of damages for the accidental death of a previable unborn child, specifically overruling Gentry and Lollar; in those cases, which the trial court in this case relied upon (see the trial court's order, quoted supra), this Court had held that damages could not be recovered for the wrongful death of a child who died without being born alive or reaching viability. In Mack, we stated:

79 So.3d at 611-12.4

Hamilton submitted copies of the Mack decision to this Court as supplemental authority in her appeal, accompanied by a letter asking the clerk of this Court to distribute those copies to the members of the Court. The defendants filed a motion to strike Hamilton's supplemental authority or, in the alternative, to grant the defendants permission to respond to that supplemental authority. This Court denied the motion to strike, granted the defendants permission to respond to the supplemental authority, and permitted Hamilton to reply to the defendants' response.

Harper v. Coats, 988 So.2d 501, 503 (Ala. 2008).

Discussion

A. Whether Mack should apply in this case

The defendants present several arguments contending that this Court should not apply our recent holding in Mack in this case, which was pending on appeal when Mack was decided. However, these arguments are inconsistent with Alabama law:

Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 438 (Ala.2001) (emphasis added). Mack is now controlling precedent on the issue whether "the Wrongful Death Act permits an action for the death of a previable fetus," Mack, 79 So.3d at 611, and the Court in that case held such an action permissible. Therefore, we will apply Mack in deciding this appeal.

B. Whether Hamilton Can Recover Damages for the Alleged Wrongful Death of Her Stillborn Son

The first substantive issue we must consider is whether the trial court erred in holding that Hamilton could not maintain a wrongful-death action "for the death of [her] non-viable fetus." As set forth in Mack and as applicable in this case, Alabama's wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability. Applying our holding in Mack, quoted supra, we conclude that the summary judgment, insofar as it held that damages for the wrongful death of a previable unborn child were not recoverable, must be reversed and the case remanded for the trial court to reconsider the defendants' summary-judgment motions in light of this Court's holding in Mack; the trial court may conduct such proceedings as it deems necessary in reconsidering those motions.

C. Whether Hamilton Can Recover Damages for Emotional Distress

The second issue raised in this appeal is whether the trial court erred in holding that Hamilton "[could not] maintain an individual claim for emotional distress because the evidence is insufficient to show that she was within the `zone of danger,' and she cannot claim a physical injury to her body as a result of the death of the fetus."

In their summary-judgment motions, the defendants argued that Hamilton could not recover damages for emotional distress because, they said, Hamilton "was not physically injured as a result of the defendants' alleged conduct" and Hamilton "was never in the `zone of danger.'" In support of this argument, the defendants cited AALAR, 716 So.2d at 1148, in which this Court stated that it "has not recognized emotional distress as a compensable injury or harm in negligence actions outside the context of emotional distress resulting from actual physical injury, or, in the absence of physical injury, fear for one's own physical injury." (Citing Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L.Rev. 477, 487 (1982)). The defendants noted that, during her deposition, Hamilton testified that she had not been "concerned for [her] life."5

In her response to the defendants' summary-judgment motions, Hamilton stated that she "[did] not dispute that she never feared for her own life and is therefore not entitled to zone of danger damages." However, Hamilton claimed that she is "entitled to mental anguish damages" under this Court's decision in Taylor v. Baptist Medical Center, supra. Hamilton argued that Taylor "carve[d] out a specific exception" to the zone-of-danger test for cases in which a mother has suffered the loss of her unborn child. However, in AALAR, this Court explained that the test this Court had been applying with regard to claims for emotional-distress damages, including the test applied in Taylor, was "consistent with the `zone of danger' test discussed in [Consolidated Rail Corp. v.] Gottshall, [512 U.S. 532 (1994)]." 716 So.2d at 1147. In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), the United States Supreme Court stated that "the zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." 512 U.S. at 547-48, 114 S.Ct. 2396. Hamilton's assertion that Taylor "carve[d] out a specific exception" to the zone-of-danger test is erroneous.

The only physical harm Hamilton alleged in her response to the defendants' summary-judgment motions was the death of her unborn son. She argued that her unborn son was a part of her body; thus, she said, his death was a physical injury to her that allows her to recover damages for emotional distress. We reject that argument, however, because it is incompatible with this Court's holding in Wolfe v. Isbell, 291 Ala. 327, 330-31, 280 So.2d 758, 761 (1973), in which we said "that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother."6

Because Hamilton conceded that she was "not entitled to zone of danger damages" and her argument suggesting that Taylor created an exception to the zone-of-danger test is misplaced, and because, in response to the defendants' summary-judgment motions, she presented no evidence showing that she suffered a physical injury as a result of the defendants' actions, we conclude that the trial court properly entered a summary judgment insofar as it concerns Hamilton's claim for damages for emotional distress.

Conclusion

Based on our recent holding in Mack, we conclude that Hamilton was entitled to pursue a claim against the defendants for the wrongful death of her unborn son. Thus, as to Hamilton's wrongful-death claim, we reverse the trial court's summary judgment in favor of all the defendants except Dr. Isbell, as to whom Hamilton has not appealed, and we remand the case for further proceedings consistent with this opinion. However, because Hamilton failed to demonstrate that she was entitled to damages for emotional distress, we affirm the summary judgment for the defendants — other than Dr. Isbell — insofar as it denied Hamilton's claim for such damages.

APPLICATION OVERRULED; OPINION OF FEBRUARY 17, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MALONE, C.J., and WOODALL, STUART, BOLIN, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

PARKER, J., concurs specially.

PARKER, Justice (concurring specially).

Today, this Court reaffirms that the lives of unborn children are protected by Alabama's wrongful-death statute, regardless of viability. I write separately to explain why the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), does not bar the result we reach today and to emphasize the diminishing influence of Roe's viability standard. Because Roe is not controlling authority beyond abortion law, and because its viability standard is not persuasive, I conclude that, at least with regard to the law of wrongful death, Roe's viability standard should be universally abandoned.

I. The uncertain status of the viability standard in tort and criminal law since Roe.

Since 1973, when Roe was decided, laws regarding prenatal injury, wrongful death, and fetal homicide have increasingly abandoned the viability standard expressed in Roe. In prenatal-injury law, "every jurisdiction permits recovery for prenatal injuries if a child is born alive.... This generally holds true regardless whether the injury occurred either before or after the point of viability.... The majority of jurisdictions also recognize a cause of action for the wrongful death of a stillborn, viable fetus." Crosby v. Glasscock Trucking Co., 340 S.C. 626, 634, 532 S.E.2d 856, 860 (2000) (Toal, J., dissenting) (footnotes omitted) (citing Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (1995)).

States have been slower to abandon the viability standard in the area of wrongful death. If the child is stillborn, a majority of states and the District of Columbia allow recovery if the injury occurred after viability. See Aka v. Jefferson Hosp., 344 Ark. 627, 637 n. 2, 42 S.W.3d 508, 515 n. 2 (2001) (noting that 32 jurisdictions permitted the recovery of damages for the wrongful death of a viable unborn child). Although some states never permit recovery for the wrongful death of a previable child,7 other states permit recovery if the previable child is born alive and later dies.8

The most significant shift away from the viability standard, however, has been in the law of fetal homicide. At least 38 states have enacted fetal-homicide statutes, and 28 of those statutes protect life from conception. See State v. Courchesne, 296 Conn. 622, 689 n. 46, 998 A.2d 1, 50 n. 46 (2010) ("`[As of March 2010], at least [thirty-eight] states have fetal homicide laws.'" (quoting the National Conference of State Legislatures, Fetal Homicide Laws (March 2010) (alterations in Courchesne))).

Alabama's homicide statute, for example, defines "person" specifically to include "an unborn child in utero at any stage of development, regardless of viability." § 13A-6-1(a)(3), Ala.Code 1975. As Justice See wrote in a special concurrence joined by then Chief Justice Nabers and Justices Stuart, Smith, and Parker in Ziade v. Koch, 952 So.2d 1072, 1082 (Ala. 2006), the homicide statute "defines `person' to include an `unborn child.' The legislature has thus recognized under that statute that, when an `unborn child' is killed, a `person' is killed." See also Ankrom v. State, [Ms. CR-09-1148, Aug. 26, 2011] ___ So.3d ___, ___ (Ala.Crim.App. 2011) ("Alabama's homicide statute ... does apply to unborn children.").

Noting that Alabama's homicide statute protects an unborn child before viability, this Court recently held that, similarly, Alabama's "Wrongful Death Act permits an action for the death of a previable fetus." Mack v. Carmack, 79 So.3d 597, 611 (Ala.2011). In deciding that, for purposes of the Wrongful Death Act, a "person" includes an unborn child at any stage of gestation, this Court recognized the arbitrariness of "draw[ing] a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability." Mack, 79 So.3d at 611. These developments in Alabama match a larger pattern; currently, at least nine other states permit recovery for the wrongful death of previable unborn children, five by judicial construction — Missouri, Oklahoma, Utah, South Dakota, and West Virginia9 — and four by statute — Illinois, Louisiana, Nebraska, and Texas.10 Georgia and Mississippi permit recovery of damages for the wrongful death of a "quick" unborn child previability.11 Thus, the law of prenatal injury and fetal homicide has moved decidedly away from the viability standard, while the law of wrongful death has slowly followed.

II. Roe's viability standard is not controlling authority in wrongful-death law.

Some state courts have applied Roe's viability standard to wrongful-death law, citing Roe as prohibiting the recovery of damages for the wrongful death of a child who dies without reaching viability.12 The California Supreme Court held that Roe limited California's criminal statutes protecting unborn children.13 Misreading Roe, these courts concluded that the United States Supreme Court held in Roe that states have no interest in protecting the life of an unborn child before viability.

Although broadly written, Roe does not support that conclusion; the states are forbidden to protect unborn children only in ways that conflict with a woman's "right." Roe held that a pregnant woman's "right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 153, 93 S.Ct. 705. See also Planned Parenthood v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (describing Roe as "holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages"). No one, however, other than a woman seeking to "terminate her pregnancy," possesses the "right" created in Roe. Nothing in Roe indicated that anyone other than the pregnant woman has any right to terminate her pregnancy and thereby to cause the death of her unborn child.

Roe does not prohibit states from protecting unborn human lives. To the contrary, in Casey, the Supreme Court acknowledged that "the State has legitimate interests from the outset of the pregnancy" in protecting the unborn child, 505 U.S. at 846, 112 S.Ct. 2791, and a "substantial state interest in potential life throughout pregnancy." 505 U.S. at 876, 112 S.Ct. 2791. Thus, unless a state's law conflicts with a woman's "right" to an abortion, the state law does not conflict with Roe. See also Gonzales v. Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (noting that "the State, from the inception of the pregnancy," has an interest "in protecting the life" of the unborn child). Webster v. Reproductive Health Servs., 492 U.S. 490, 516, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); and Harris v. McRae, 448 U.S. 297, 313, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980).

Roe's statement that unborn children are not "persons" within the meaning of the Fourteenth Amendment is irrelevant to the question whether unborn children are "persons" under state law. Because the Fourteenth Amendment "right" recognized in Roe is not implicated unless state action violates a woman's "right" to end a pregnancy, the other parts of the superstructure of Roe, including the viability standard, are not controlling outside abortion law.

Many state appellate courts have recognized that, except in the case of abortion, Roe does not limit state criminal or civil protection of the unborn child.14 Justice Maddox explained this distinction in his dissent in Gentry v. Gilmore, 613 So.2d 1241, 1247 (Ala.1993):

Scholars have also recognized the limitations of Roe.15 For these reasons, Roe is not controlling authority in this case.

III. Roe's viability standard is not persuasive.

Numerous scholars have criticized the viability rule of Roe.16 Today, "there is broad academic agreement that Roe failed to provide an adequate explanation for the viability rule." Randy Beck, Gonzales, Casey, and the Viability Rule, 103 Nw. U.L.Rev. 249, 268-69 (2009).

A. Roe misstated the protection of the unborn child under the common law.

Roe's viability rule was based, in significant part, on an incorrect statement of legal history. The Supreme Court in Roe erroneously concluded that "the unborn have never been recognized in the law as persons in the whole sense." 410 U.S. at 162, 93 S.Ct. 705. Roe also referred to "the lenity of the common law." 410 U.S. at 165, 93 S.Ct. 705. However, scholars have repeatedly pointed to inaccuracies in Roe's historical account since Roe was decided in 1973.17 "[T]he history embraced in Roe would not withstand careful examination even when Roe was written." Joseph Dellapenna, Dispelling the Myths of Abortion History 126 (Carolina Academic Press 2006).

Sir William Blackstone, for example, recognized that unborn children were persons. Although the Court cited Blackstone in Roe, it failed to note that Blackstone addressed the legal protection of the unborn child within a section entitled "The Law of Persons." It also ignored the opening line of his paragraph describing the law's treatment of the unborn child: "Life is an immediate gift of God, a right inherent by nature in every individual." 1 William Blackstone, Commentaries on the Laws of England *129.18 As Professor David Kadar noted in 1980, "Rights and protections legally afforded the unborn child are of ancient vintage. In equity, property, crime, and tort, the unborn has received and continues to receive a legal personality." David Kadar, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo. L.Rev. 639, 639 (1980) (footnotes omitted).

B. Roe misstated the protection of the unborn child under tort law and criminal law.

Professor Kadar and others have pointed out "the mistaken discussion within Roe on the legal status of the unborn in tort law." Kadar, 45 Mo. L.Rev. at 652. The Court's discussion in Roe of prenatal-death recovery "was perfunctory, and unfortunately largely inaccurate, and should not be relied upon as the correct view of the law at the time of Roe v. Wade." 45 Mo. L.Rev. at 652-53. See also William R. Hopkin, Jr., Roe v. Wade and the Traditional Legal Standards Concerning Pregnancy, 47 Temp. L.Q. 715, 723 (1974) ("[I]t must respectfully be pointed out that Justice Blackmun has understated the extent to which the law protects the unborn child.").

Roe's adoption of the viability standard in 1973 did not reflect American law. Viability played no role in the common law of property, homicide, or abortion. Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L.Rev. 563, 569 n. 33 (1987). And there was no viability standard in wrongful-death law because the common law did not recognize a cause of action for the wrongful death of any person. Farley v. Sartin, 195 W.Va. at 674, 466 S.E.2d at 525 ("At common law, there was no cause of action for the wrongful death of a person."); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 127, at 945 (5th ed. 1984) ("The common law not only denied a tort recovery for injury once the tort victim had died, it also refused to recognize any new and independent cause of action in the victim's dependants or heirs for their own loss at his death.").

The viability standard was introduced into American law by Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), the first case to recognize a cause of action for prenatal injuries. Bonbrest implied that such a cause of action would be recognized only if the unborn child had reached viability. 65 F.Supp. at 140.

Viability was initially adopted by courts in prenatal-injury law, but its influence was waning by 1961. See Daley v. Meier, 33 Ill.App.2d 218, 178 N.E.2d 691 (1961) (holding that an infant born alive could recover damages for injuries suffered before viability); see also Note, Torts — Extension of Prenatal Injury Doctrine to Nonviable Infants, 11 DePaul L.Rev. 361 (1961-62). One thorough legal survey of prenatal-injury law a decade before Roe was decided concluded that "[t]he viability limitation in prenatal injury cases is headed for oblivion. Courts are coming to realize that it is illogical and unjust to the children affected and not readily amenable to scientific proof." Charles A. Lintgen, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries, 110 U. Pa. L.Rev. 554, 600 (1962).

C. Roe's viability standard was dictum.

The viability standard adopted in Roe was dictum. Randy Beck, Self-Conscious Dicta: The Origins of Roe v. Wade's Trimester Framework, 51 Am. J. Legal Hist. 505, 516-26 (2011). It was not a part of either the Texas statute addressed in Roe or the Georgia statute addressed in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); neither case was conditioned on viability. In fact, the viability standard was adopted in Roe without any evidentiary record and was not discussed in the briefs or arguments. Beck, 51 Am. J. Legal Hist. at 511-12. The viability rule was also dictum in Casey because the Pennsylvania statute at issue in that case was not conditioned on viability but applied throughout a woman's pregnancy. Beck, 103 Nw. U.L.Rev. at 271-76.

Additionally, "the Roe Court's internal correspondence" demonstrates that the Justices themselves recognized that the viability standard was not only "`arbitrary,'" but also "`unnecessary.'" Beck, 51 Am. J. Legal Hist. 505, 520, 521, 526; see also Randy Beck, The Essential Holding of Casey: Rethinking Viability, 75 UMKC L.Rev. 713, 713 (2007) (quoting Justice Blackmun's "Internal Supreme Court Memo," as quoted in David J. Garrow, Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade 580 (1994)) ("`"You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary."'").

D. Roe's viability standard was incoherent.

The United States Supreme Court has "never justified" the viability rule of Roe and Casey "in either legal or moral terms." Randy Beck, 103 Nw. U.L.Rev. at 249; see also Beck, 103 Nw. U.L.Rev. at 253, 268-69 & n. 116 (and authorities cited therein). Justice White explained the lack of foundation for the viability standard in his dissent in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 794-95, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (White, J., dissenting):

Similarly, in the article cited by Justice White, Professor John Hart Ely noted that Roe justified the viability standard with a definition:

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924-25 (1973) (quoting Roe, 410 U.S. at 163, 93 S.Ct. 705) (footnotes omitted).

Neither Roe nor any of the subsequent cases relying on the viability standard have provided any alternative rationale to support that standard: "In the decades since Roe, the Court has offered no adequate rationale for the viability standard, notwithstanding persistent judicial and academic critiques." Beck, 75 UMKC L.Rev. at 740.

Because of Roe, viability, in abortion law, is a limitation on the exercise of the state's interest in protecting the unborn child. Outside abortion law, viability has little significance. Viability is largely based on outcome statistics at a specific gestational age, coupled with an estimation of the technological capabilities of a particular facility in medically assisting premature children. As the South Dakota Supreme Court said in Wiersma v. Maple Leaf Farms, 543 N.W.2d 787, 792 (S.D. 1996), "`[v]iability' as a developmental turning point was embraced in abortion cases to balance the privacy rights of a mother against her unborn child. For any other purpose, viability is purely an arbitrary milestone from which to reckon a child's legal existence." (Footnote omitted.)

Viability is irrelevant to determining the existence of prenatal injuries, the extent of prenatal injuries, or the cause of prenatal death. Viability is irrelevant to proving causation because the unborn child's anatomic condition can be observed regardless of viability and, if the unborn child dies, the cause of its death can be determined by autopsy regardless of the child's gestational age. Viability does not affect the child's loss of life or the damages suffered by the surviving family. There is no evidence that permitting recovery of damages for the wrongful death of a child before viability will increase fraudulent litigation. See 66 Federal Credit Union v. Tucker, 853 So.2d 104, 113 (Miss.2003).

Quite simply, the use of viability as a standard in prenatal-injury or wrongful-death law is incoherent. As the West Virginia Supreme Court concluded in Farley: "[J]ustice is denied when a tortfeasor is permitted to walk away with impunity because of the happenstance that the unborn child had not yet reached viability at the time of death." 466 S.E.2d at 533. Though a number of rationales were originally cited for the viability rule in prenatal-injury or wrongful-death law, the sole remaining justification of not abandoning viability in wrongful-death law seems to be deference to legislative bodies, a rather strange rationale for caution in abandoning a judicially created rule.

Since Roe was decided in 1973, advances in medical and scientific technology have greatly expanded our knowledge of prenatal life. The development of ultrasound technology has enhanced medical and public understanding, allowing us to watch the growth and development of the unborn child in a way previous generations could never have imagined. Similarly, advances in genetics and related fields make clear that a new and unique human being is formed at the moment of conception, when two cells, incapable of independent life, merge to form a single, individual human entity.19 Of course, that new life is not yet mature — growth and development are necessary before that life can survive independently — but it is nonetheless human life. And there has been a broad legal consensus in America, even before Roe, that the life of a human being begins at conception.20 An unborn child is a unique and individual human being from conception, and, therefore, he or she is entitled to the full protection of law at every stage of development.

Conclusion

Roe's viability rule was based on inaccurate history and was mostly unsupported by legal precedent. Medical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development. And together, Alabama's homicide statute, the decisions of this Court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun's words, "reluctant... to accord legal rights to the unborn." For these reasons, Roe's viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court.

STUART, BOLIN, and WISE, JJ., concur.