A Helena woman can proceed with a wrongful death claim against a doctor for her miscarriage when she was about six weeks pregnant, the Alabama Supreme Court ruled Friday in reversing a Jefferson County judge's order that dismissed her claim.

One justice, outspoken in the past in his views against Roe v. Wade, said the decision reaffirms the Alabama Supreme Court's previous ruling that children are protected by Alabama's wrongful-death law from the point of conception.

Justices ruled a circuit judge had erred when he said the doctor was immune from civil lawsuits for wrongful death involving the death of a fetus that had not yet reached the stage of viability.

The state's Wrongful Death Act extends immunity from criminal prosecution to doctors for "a mistake or unintentional error causing the death of a pre-viable fetus." But the judge, based on previous rulings, had extended that to also include immunity from civil lawsuits.

The decision by the Alabama Supreme Court allowing the wrongful death claim to proceed to trial was unanimous, with all eight justices of the current court concurring in the result.

Justice Tom Parker wrote a special concurring opinion.

"Today, this Court again reaffirms the principle that unborn children are protected by Alabama's wrongful-death statute from the moment life begins at conception," Parker wrote. "This has not always been the case in Alabama. Alabama used to deny unborn children who had not yet grown strong enough to survive outside of their mother's womb the protections of Alabama's wrongful-death statute."

Parker stated that Alabama previously applied the viability standard established in Roe v. Wade - the U.S. Supreme Court decision in 1973 that gave women the right to abortions before fetuses are viable - "to determine which unborn children received protection under the law and which did not."

However, in a 2011 decision in Mack v. Carmack the Alabama Supreme Court determined that the viability standard established in Roe does not apply to wrongful-death law, Parker stated. "The Court reaffirms that principle today," he wrote.

"The use of the viability standard established in Roe is incoherent as it relates to wrongful-death law because, among other reasons, life begins at the moment of conception," Parker wrote. "The fact that life begins at conception is beyond refutation."

Parker's stance on the issue is widely known.

In a 2014 article, the non-profit news organization ProPublica wrote that Parker was key to the "personhood movement" in an ultimate attempt to overturn the U.S. Supreme Court decision in Roe v. Wade The publication argued that Parker was establishing the legal rights for the unborn in his opinions that ultimately could be used to overturn Roe v. Wade.

Parker, in an interview with AL.com last year, called the ProPublica article a hit-piece and said he never used the word "personhood" in any of the decisions.

"I have written opinions joined by the rest of the court that have recognized the right of parents to file a wrongful death lawsuit involving an unborn child from the point of conception," Parker said. "Personally I have written against Roe v Wade and the lack of historical legal or medical basis for that decision and I have done that from one of my opinions."

Last week's decision by the Alabama Supreme Court overturned a ruling by Jefferson County Circuit Court Judge Jim Hughey in the case of Kimberly Stinnett v. Dr. Karla G. Kennedy.

"I think it was a huge decision to clarify the law," Steve Heninger, the Birmingham lawyer who represented Stinnett, said of the Alabama Supreme Court ruling.

Efforts to reach attorneys representing Kennedy were unsuccessful prior to publication of this story.

Stinnett sued after she had a miscarriage in June 2012.

According to the Supreme Court's opinion, Stinnett's obstetrician had informed Stinnett that she was pregnant on May 9, 2012. Two days later Stinnett experienced abdominal cramping and fever. Because it was after hours on the weekend, Stinnett called her obstetrician's answering service and received a call back from Dr. Kennedy, who was sharing calls with her regular obstetrician that weekend. Dr. Kennedy told Stinnett to go to the emergency room at Brookwood Medical Center.

Stinnett reported prior miscarriages in 2005 and 2007 and a prior ectopic pregnancy in 2010. An ectopic pregnancy is when a fertilized egg implants outside the uterus.

Kennedy was concerned that Stinnett was experiencing another ectopic pregnancy and performed a dilation and curettage, a surgical procedure in which the cervix is dilated and tissue is removed from the lining of the uterus, and a laparoscopy to determine whether the pregnancy was inside or outside the uterus, according to the opion. Kennedy informed her that there was no ectopic pregnancy but that she still felt as though there had been a miscarriage. Dr. Kennedy, however, testified that she still held "a high suspicion" of ectopic pregnancy on May 13 and, therefore, ordered methotrexate, a cytotoxic drug used to treat ectopic pregnancies, be administered to Stinnett. The drug is intended to cause the end of the pregnancy.

On Monday, May 14, Stinnett's regular obstetrician returned and took over treatment of Stinnett at the hospital. A follow-up ultrasound showed that what had previously been suspected to be an intrauterine gestational sac had, in fact, progressed to a "definite yolk sac." In his discharge summary for Stinnett, her obstetrician stated that Stinnett was having a failing intrauterine pregnancy possibly as a result of her methotrexate injection. Several weeks later, on June 8, 2012, Stinnett suffered a miscarriage, according to the opinion.

The evidence was disputed as to whether the fetus could have reached viability, according to the opinion.

In her lawsuit Stinnett alleged Dr. Kennedy committed medical negligence when she performed the D & C and administered methotrexate and that caused the loss of her child.

Judge Hughey, on April 15, 2016, entered an order granting the motion to dismiss Stinnett's wrongful-death claim. He stated that "after considering all of the ... arguments and authorities, this Court finds that the existence of the 'physician's exception' to the Brody Act ...prohibits the extension of civil liability under the Wrongful Death Act to licensed physicians who through mistake or unintentional error cause the death of a previable fetus."

Hughey, however, allowed Stinnett's other claims, including her personal injuries and claim of mental anguish, in her lawsuit to continue to trial. At that trial in May a jury found in favor of Dr. Kennedy on those other claims.

Heninger said they expected to lose the trial in May on Stinnett's mental anguish claims because that was only a small part of the case, which really focused on the wrongful death claim. The jury, however, was told it couldn't consider the wrongful death aspect, he said.

One group, Liberty Counsel, applauded the Alabama Supreme Court's decision in a press release Tuesday.

"Liberty Counsel applauds the Alabama Supreme Court and Justice Tom Parker for defending the legal rights of the unborn as clearly stated in Alabama law," said Mat Staver, Founder and Chairman of Liberty Counsel. "We strongly urge other judges to do likewise as the value of human life is not a negotiable matter. The womb should be the safest place for a child and it must be legally protected. It's time to turn the tables on Roe v. Wade," he stated.

Liberty Counsel represented Parker in defenses of a judicial ethics complaint last year. The complaint was dismissed.