Defending "Unborn Children" a Legal Defense, Appeals Court Rules

By Dave Andrusko

Last month a three-judge panel of the Michigan Court of Appeals reversed the voluntary manslaughter conviction of Jaclyn Kurr. What makes this particular case of concern to pro-lifers is that Ms. Kurr insisted she had been defending the lives of her unborn children against one Antonio Pena!

A jury sentenced Kurr to 5-20 years in prison. In ordering a new trial, the appeals court panel said she should have been allowed to argue that she was defending "her unborn children" as well as herself, the New York Times reported.

According to syndicated columnist George Will, Kurr "had sought hospital treatment for injuries" inflicted by Pena. "Then came their argument about his cocaine use, during which he twice punched her in the stomach."

Kurr, 16-17 weeks pregnant with quadruplets, warned Pena that she was carrying his babies. "When Pena seemed about to punch her again, she stabbed him in the chest, fatally," Will wrote. A few weeks after the confrontation she miscarried.

Under Roe v. Wade, Ms. Kurr could have aborted these same babies without qualm. The legal schizophrenia was so obvious the appeals court felt the need to address it in its opinion.

At the same time the court insisted its decision was narrow--assaults carried out against pregnant women--Judge Patrick M. Meter wrote, "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."

The trial jury rejected Ms. Kurr's defense that she ought to have been allowed to use deadly force to defend herself from Pena's assault. (Michigan law allows this when people believe their lives are in danger or when they feel threatened by serious bodily harm.)

Under Michigan law, however, the use of deadly force is also justified in defense of "others." But the trial judge, Richard Lyon Lamb, told Kurr's lawyer, "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," adding, "Under 22 weeks, there are no others."

The appeals court thought otherwise. It took its cue from an act passed by the Michigan legislature. In 1998, legislators adopted a fetal defense act which pointedly does not distinguish between viable and nonviable fetuses.

The law says it is a crime to cause a miscarriage or stillbirth while acting "in wanton or willful disregard of the likelihood that the natural tendency of" such conduct is to cause a miscarriage or stillbirth. The legislature, according to Judge Meter, plainly believes "that fetuses are worthy of protection as living entities.'' The appeals court unanimously held that the concept of defending others "should also extend to the protection of a fetus, viable or nonviable, from an assault against the mother."

According to John C. Mayoue, "One is left with a most peculiar legal situation." Mayoue, an Atlanta lawyer who is an expert in the various ways the law treats embryos and fetuses, told the Times, "Although she [Ms. Kurr] may use deadly force to protect the viable or nonviable fetus, thereby ending someone's life, she also has the constitutional right to terminate the pregnancy herself without consequence."

The prosecutor, Heather Bergmann, told the Times the state would ask the Michigan Supreme Court to hear the case. "Ms. Bergmann mentioned that she herself had never been pregnant. 'I would guess that as soon as I did become pregnant,' she said, 'I would think I would be very concerned if someone came after my stomach.'"