From: Artillo5@cs.com
Date: Mon Oct 21 2002 - 09:17:01 MDT
http://seattlepi.nwsource.com/national/91402_fetus16.shtml
Wednesday, October 16, 2002
Court rules mother can use deadly force to protect fetus
Michigan panel rules in favor of woman who killed after man hit her in stomach
By ADAM LIPTAK
THE NEW YORK TIMES
A pregnant woman may use deadly force to protect her fetus even when she does
not fear for her own life, the Michigan Court of Appeals has ruled. Legal
experts say the decision has opened another front in the legal wars
surrounding abortion.
The court emphasized that its decision was a narrow one, concerning only
assaults against pregnant women, but it acknowledged that it was entering
charged legal terrain.
"We are obviously aware of the raging debate occurring in this country
regarding the point at which a fetus becomes a person entitled to all the
protections of the state and federal constitutions," Judge Patrick Meter
wrote for a unanimous three-judge panel.
The case arose from a lovers' quarrel involving Jaclyn Kurr and her
boyfriend, Antonia Pena, the man who had impregnated her. She later testified
that after Pena had punched her in the stomach, she responded by stabbing him
in the chest with a kitchen knife, killing him. At the time she was 16 to 17
weeks pregnant.
She was charged with manslaughter, and the jury rejected her assertion that
she had been acting in self-defense. She was sentenced to five to 20 years in
prison.
This month, the appeals court reversed her conviction and ordered a new
trial. It said the trial judge should have let her argue that she was
defending not only herself but also "her unborn children."
The court noted that the age of Kurr's fetuses -- she was apparently carrying
quadruplets -- meant that they could not have survived outside the womb and
that she could abort them under the Supreme Court's decision in Roe vs. Wade.
She miscarried a few weeks later.
"One is left with a most peculiar legal situation," said John Mayoue, an
Atlanta lawyer who is an expert in the various ways the law treats embryos
and fetuses. "Although she may use deadly force to protect the viable or
non-viable fetus, thereby ending someone's life, she also has the
constitutional right to terminate the pregnancy herself without consequence."
Linda Rosenthal, a lawyer with the Center for Reproductive Law and Policy,
said the decision was consistent with the Supreme Court's abortion
jurisprudence.
"When a woman is carrying a wanted pregnancy and she has made that decision,
which is constitutionally protected, she has the right to protect the embryo
or fetus," she said.
About half the states have laws making assaults that cause miscarriages or
stillbirths criminal. In debates in Congress last year about a possible
federal version of the law, opponents understood the central issue to be
abortion and not crime.
"We should have no illusions about the purposes of this bill," said Rep.
Jerrold Nadler, D-N.Y., about the Unborn Victims of Violence Act. "It is
another battle in the war of symbols in the abortion debate, in which
opponents of a woman's right to choose attempt to portray fetuses, from the
earliest moments of development, as children."
He continued: "If causing a miscarriage is murder, then, by implication, so
is abortion, the Supreme Court never mind."
Michigan law allows people to use deadly force to defend themselves when they
believe their lives are in danger or when they feel threatened by serious
bodily harm. Kurr failed to convince the jury that the punches amounted to
either.
The law there allows the use of deadly force in defense of others. The trial
judge ruled that the fetuses Kurr was carrying were not "others" for these
purposes.
"I believe in order to be able to assert a defense of others there has to be
a living human being existing independent of your client," Judge Richard Lyon
Lamb of the Kalamazoo County Circuit Court, said to Kurr's lawyer. "Under 22
weeks, there are no others."
In reversing the conviction, the appeals court held that the concept of
defending others "should also extend to the protection of a fetus, viable or
non-viable, from an assault against the mother."
The court stressed that it recognized the defense only in the context of an
assault, thus excluding the destruction of embryos existing outside the body
and medical abortions.
Gail Rodwan, Kurr's lawyer, said the opinion was limited in its holding but
not in its implications.
"The opinion certainly does recognize the sense that the fetus was another
separate from the mother," she said. "That may be something people could
seize on."
Anti-abortion advocates have on occasion asserted the defense of others to
charges such as criminal trespass in blocking access to abortion clinics. In
that context, the defense has been rejected.
Through her lawyer, Kurr, who remains in prison, declined to comment.
Rodwan, in her brief on behalf of Kurr, said that abortion rights should not
be affected by a ruling in her client's favor.
Heather Bergmann, a prosecutor, said the state will ask the Michigan Supreme
Court to hear the case. Its principal argument, she said, will be that the
right to self-defense is adequate to protect both pregnant women and their
fetuses.
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