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Court Rules Woman May Use Deadly Force to Defend Unborn
By Lawrence Morahan
CNSNews.com Senior Staff Writer
October 25, 2002

(CNSNews.com) – A Michigan appeals court made an accurate interpretation of the state Legislature’s intent when it ruled that a pregnant woman may use deadly force to protect a fetus from attack, even if her own life is not in danger, a pro-life group said.

“We agree with the decision,” said Douglas Johnson, legislative director of the National Right to Life Committee (NRLC). “We think that the unborn child should be recognized as a full member of the human family.”

Johnson’s comments concerned a case in which the Michigan Court of Appeals reversed a Kalamazoo County Circuit Court’s conviction of a woman for killing her boyfriend.

Jaclyn Louise Kurr was convicted of voluntary manslaughter in the stabbing death of Antonio Pena, on Oct. 9, 1999. She was sentenced to five to 20 years in prison.

Kurr, who said she was 16 weeks pregnant with quadruplets at the time of the incident, testified she was defending herself during a fight in which Pena punched her in the stomach.

Under Michigan law, people may use lethal force to defend themselves when they have reason to believe their lives are in danger, or when they use deadly force “in defense of others.”

However, at Kurr’s trial, Circuit Court Judge Richard Lamb ruled that the defendant could not use the “defense of others” argument because the fetuses were not “living human being[s] existing independent” of the defendant.

Referring to the 1973 Supreme Court Roe v. Wade decision, which said a fetus must be at least 22 gestational weeks of age to be viable outside the womb, Lamb said “even under the evidence in this case, under 22 weeks, there are no others,” a reference to the defense of others argument.

Kurr then argued she was acting in self-defense when she stabbed Pena. The jury rejected this argument and found her guilty of manslaughter.

The State of Michigan Court of Appeals earlier this month reversed Kurr’s conviction and ordered a new trial.

“We agree that a defense of others jury instruction was appropriate here and therefore reverse defendant’s conviction and remand this case for a new trial,” the court said in a 3-0 decision.

The court based its conclusion “primarily on the fetal protection act adopted by the Legislature in 1998.”

Twenty-six states have homicide laws that recognize unborn victims, NRLC research shows. Fourteen of those, including Michigan, have laws that recognize unborn children as victims throughout all periods of pre-natal development.

Michigan’s law is one of the most comprehensive, providing felony penalties for actions that cause “aggravated physical injury to an embryo or fetus.”

Twelve states cover unborn children in homicide laws only during part of the period of pre-natal development; seven states have no unborn victim laws, but criminalize acts that terminate a human pregnancy or cause a miscarriage.

The appeals court, in its ruling, did not address when a fetus becomes a person, often a key issue in abortion cases.

“This issue, however, is not raised by the parties, is not pertinent to the resolution of the instant case, and does not drive our ruling today,” the court said.

The court concluded that a mother may defend a fetus from assault “and may even use deadly force if she honestly and reasonably believes the fetus to be in danger of imminent death or great bodily harm.”

Some unborn victim laws have been in effect since the mid-1980s, Johnson noted. These laws have been subjected to legal attacks, but none has been struck down on constitutional grounds.

Prosecutors have said they plan to ask the Michigan Supreme Court to hear the case. The question of whether the “defense of others” argument can be used is irrelevant because the right to self-defense should be considered adequate to protect both pregnant women and their fetuses, prosecutors told reporters.

Johnson said the state Supreme Court is under no obligation to hear the case.

“If they do, we’re confident the court of appeals ruling will be upheld,” he said.