National Post

Friday, October 18, 2002

Fetal-defence case stirs abortion debate

Appeal court says woman could defend unborn babies from abusive boyfriend

National Post

Bradley S. Pines, The Associated Press
Jaclyn Kurr, shown here two years ago in a Kalamazoo, Mich., court, has had her manslaughter conviction for killing her boyfriend overturned by an appeal court. The court held that a pregnant woman can use deadly force to protect a fetus from attack even if her own life is not in danger.

Before Jaclyn Kurr picked up a kitchen knife and fatally stabbed her boyfriend, she pleaded with Antonio Pena not to hit her because she was carrying his children.

Ms. Kurr, about 17 weeks pregnant with quadruplets at the time, had already suffered two blows to the stomach, details that did not thwart a voluntary manslaughter conviction in a Michigan court, but has won over the Michigan Court of Appeal.

In a move that has reignited a battle over abortion in the United States, the higher court ruled this month that Ms. Kurr, who subsequently suffered a miscarriage in prison while serving a 20-year sentence, had the right to assert a "defence of others" defence, meaning she killed to protect her unborn children.

"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," Justice Patrick Meter wrote on behalf of a three-judge panel.

The court of appeal tossed out the manslaughter conviction resulting from the Oct. 9, 1999, stabbing, a deadly end to a relationship in which Ms. Kurr sustained physical abuse.

The prosecution is expected to file an appeal within days, asking the Michigan Supreme Court to rule for the first time on the question of whether a woman has the right to assert such a defence regardless of the fetus's viability, meaning whether the fetus could survive outside the womb.

"The trial court concluded that in order for defendant to assert a defence of others theory, there had 'to be a living human being existing independent of the defendant.... Even under the evidence in this case, under 22 weeks, there are no others,' " Mr. Justice Patrick Meter noted in his critique of the trial judge's finding.

"We conclude that in this state, the defence should also extend to the protection of a fetus, viable or nonviable, from an assault against the mother."

As in 25 other states, Michigan has enacted legislation granting the fetus certain protections afforded to a human being in limited cases. Its Fetal Protection Act, enacted in 1999, sets out penalties for harming a fetus or embryo during an intentional assault against a pregnant woman.

"Because the act reflects a public policy to protect even an embryo from unlawful assaultive or negligent conduct, we conclude that the defence of others concept does extend to the protection of a nonviable fetus from an assault against the mother," the court of appeal ruled.

Although the court emphasized its decision is a "narrow one," the effect of such a ruling and the legislation that underpins it present a uncomfortable conundrum for those engaged in the abortion debate: If the fetus is identified as a person with certain rights in some scenarios, why not when a medical doctor performs an abortion?

The defence of others, originally drafted to include the right of a man to protect his property, was eventually extended to include the protection of one's family and anyone who is under a legal or socially recognized duty to protect.

"Michigan has long recognized a parent's legal duty to protect and care for his or her children," Ms. Rodwan noted in her brief to the court of appeal. "When the person committing the assault knows that the woman he is assaulting is pregnant, there are two separate crimes, and the woman should be able to assert self-defence for herself and defence of others for her unborn child."

"I can certainly understand how people would see a case like this and try to read larger implications into it," Gail Rodwan, lawyer for Ms. Kurr, conceded in an interview.

Cathy Ramey, for example, titled her tome outlining a philosophy of anti-abortion violence In Defense of Others. Ms. Ramey argues that the Old Testament condones the "defensive action" of an activist killing a doctor if he is about to perform an abortion.

Others members for the pro-abortion movement have invoked the defence of others argument in criminal proceedings stemming from trespassing, obstructing a public passage and resisting arrest charges after protesting at abortion clinics.

To date, no court has extended such a defence to pro-life activists because a woman's right to choose is constitutionally protected in the 1973 Supreme Court decision Roe v. Wade.

Still, the pro-abortion movement is certainly worried about chipping away at the decision through the use of new legal language treating a fetus as a person.

For example, new U.S. federal regulations governing the State Children's Heath Insurance Program, which comes into effect on Nov. 1, classify the fetus as an "unborn child" and expand coverage to "an individual in the period between conception and birth up to age 19."

Douglas Johnson, legislative director of the National Right to Life Committee in the United States, concedes the Michigan court decision and pending appeal to the state Supreme Court do not undermine Roe v. Wade in strict legal terms.

However, he said such cases impress upon people that the fetus is "a member of the human family," which helps build the political case against abortion. "Most people recognize instinctively when there's a criminal assault that injures a woman and kills an unborn child that that crime has two victims.

"One has to distinguish between the legal and what one might consider the changing of attitudes. Why [some pro-abortion activists] are critical of these laws is because they don't like the way it makes people think. They know it doesn't affect legal abortion, but they don't like the way it makes people think," Mr. Johnson said.

The Michigan court of appeal, meanwhile, simply wants to uphold Ms. Kurr's constitutionally protected right to present her defence.

"In light of the punches to defendant's stomach, the jury could have rejected defendant's self-defence theory while at the same time finding that defendant killed Pena in defence of her unborn children," the court concluded.

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