After her conviction for manslaughter in
2012, Jennifer Jorgensen, of Miller Place, New York, faced up to 15 years
behind bars for a car crash that happened in 2008 when she was eight months
pregnant. Jorgenson was driving without a seat belt when she smashed head-on
into a car driven by 74-year-old Robert Kelley; both Kelley and his wife Mary
died from their injuries. Jorgensen was originally accused of drunken driving,
but at her trial, she claimed that the crash was a result of blacking out from
pregnancy complications. She was acquitted of DWI and of charges related to the
Kelleys’ deaths but was convicted of manslaughter in the death of her unborn
child, which is legally permissible in New York; Jorgenson received a three- to
nine-year prison sentence. This case is not unique. Under traditional law, a
person could not be charged with murder if the victim was not “born and alive.”
Changing social views in the United States has eroded that restriction. Today,
more than two-thirds of the states have expanded their legal codes to include
feticide law, which makes the killing of an unborn fetus murder.At the federal
level, the Unborn Victims of Violence Act of 2004 makes it a separate crime to
harm a fetus during an assault on the mother. If the attack causes death or
bodily injury to a child who is in utero at the time the conduct takes place,
the penalty is the same as that for conduct had the injury or death occurred to
the unborn child’s mother.State laws vary widely. A Tennessee law considers “a
human embryo or fetus at any stage of gestation in utero” as a victim of such
offenses as murder, voluntary manslaughter, vehicular homicide, and reckless
homicide; prior to 2011, Tennessee law recognized an unborn child as a crime
victim only after “viability.” In a number of states, recent legislation has
created a separate class of crime that increases criminal penalties when a
person causes injury to a woman they know is pregnant when the injury results
in miscarriage or stillbirth. These legal changes have sparked heated debates.
Those supporting penalizing the death of an unborn fetus claim that both the
lives of the pregnant woman and her unborn should be explicitly protected. They
assert that fetal homicide laws justly criminalize these cases and provide an
opportunity to protect unborn children and their mothers. Those opposed believe
that creating laws to protect a fetus could jeopardize a woman’s right to
choose an abortion and might create an adversarial relationship between a woman
and her baby. For example, could a woman be charged with a crime for behavior
during her pregnancy that might harm her unborn child, such as smoking,
drinking, or using drugs? Some states have taken a middle ground. Texas law
extends the protections of the entire criminal code to “an unborn child at
every stage of gestation from fertilization until birth.” The law does not
apply to “conduct committed by the mother of the unborn child” or to “a lawful
medical procedure performed by a physician or other licensed health care
provider with the requisite consent.”
CRITICAL THINKING
How do you stand on this issue? Should a
person who causes the death of an unborn fetus be punished the same as someone
who kills a 10-year-old child?
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