The argument for and against the free and unfettered practice of abortion always comes down to the same fundamental question: At what age does life begin? Most (though not all) rational people would concede that life begins at the latest by birth. Yet, a New York state’s appellate court has ruled effectively that life does not begin at birth … or even at 6 days outside the womb.
First, the back story. According to the Albany Times-Union, Jennifer Jorgensen of Suffolk was in the third trimester of her pregnancy in May 2008 when her car hit a vehicle driven by another couple, both of whom were killed. In June 2009, Jorgensen, who had consumed drugs and alcohol prior to taking the wheel, was indicted for aggravated vehicular homicide, driving under the influence, manslaughter in the second degree, and endangering the welfare of a child.
The last two charges were brought in connection with the child she was carrying, which was delivered by C-section and died six days later.
In 2010, Jorgensen was convicted solely on the charge of second-degree manslaughter for causing the death of her daughter. She was sentenced to serve 3 and 9 years, but the sentence was stayed pending an appeal.
On Thursday, the New York Court of Appeals overturned her conviction:
[A] five-member majority said … in a decision written by Judge Eugene Pigott that the central question in the case was whether the state Legislature intended “to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death? Under the current statutory scheme, the answer to this question is no.”
The decision noted that the law criminalizing such conduct is located in the statute on intentional self-abortion, where the offense is “no greater than a misdemeanor.”
The court said that Suffolk County prosecutors “concede that, had defendant not consented to the cesarean section with the result that the child be born alive, she would not have been prosecuted for manslaughter in the second degree.” Ruling against Jorgensen, then, “would create a perverse incentive for a pregnant woman to refuse a cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct, jeopardizing the health of the woman and the unborn fetus.”
Such an imposition of criminal liability, the majority found, “should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor.”
In an eight-page dissent, Judge Eugene Fahey — a recent Cuomo appointee — said that, “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.”
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