(concurring specially).
I would not rely on Shears v. All States Life Ins. Co., 242 Ala. 249, 5 So.2d 808, because of its being later restricted by Hill v. Metropolitan Life Ins. Co., 266 Ala. 285, 96 So.2d 185. Also, I doubt that Mrs. Turner had a “group policy” since there is no proof of her employer being in privity of contract with Blue Cross-Blue Shield. See Blue Cross-Blue Shield v. Fowler, 43 Ala. App. 572, 195 So.2d 910.
Pennsylvania Cas. Co. v. Perdue, 164 Ala. 508, 51 So. 352, should control this case.
I agree with Judge Johnson that here conception eo instanti fixed liability at least as to maternity benefits.
Aside from our. statute1 **making certain kinds of abortion misdemeanors, public policy in this State does not (and probably cannot2) prohibit planned parenthood.
Section IV, subsection 2 (Maternity Care), of the Certificate prescribes that the wife must have been covered for the nine consecutive months just before her confinement.
Mrs. Turner’s identification card bears a notation (R. 36). “All waiting periods completed.”
When husband and wife plan parenthood so as to abide by the policy waiting period,it is clear to me that enlightened self-interest has afforded the insurer an opportunity to plan its premiums with an actuarial loading factor to prepay the hospital service.
Also, it is to be noted that the provision for maternity care also covers pregnancy foreshortened by abortion or miscarriage. It would be ironic to say that if Mrs. Turner were to have had a miscarriage before September 16, 1962, Blue Cross-Blue Shield would have been liable; whereas, if when she goes to full term, the policy has lapsed by virtue of cancellation.
I think such an intent would have to be expressed in specific words so that the subscriber would be fully aware of how tenuous his (or her) coverage is.
. Code 1940, T. 14, § 9, as amended, which exempts cases needful for the woman’s “life or health.”
. Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.