New York Court of AppealsPhoto credit: Bob Amnertiopis (CC-By-SA 3.0)
New York Court of Appeals
Photo credit: Bob Amnertiopis (CC-By-SA 3.0)

A New York Appeals Court decided last week that the mother of a six-day-old baby who died should not be held accountable for the baby’s death because, according to the court, the baby is not a person.

On May 30, 2008, the defendant, Jennifer Jorgensen, was driving eastbound on Whiskey Road in Suffolk County. She then entered the westbound lane and struck the vehicle of Robert and Mary Kelly head on, killing them both.  Jorgensen at the time was 34 weeks pregnant, and was given a consensual emergency c-section after being taken to the hospital due to signs of fetal distress.  The baby died six days later and an autopsy concluded the death was the result of the accident.

Jorgensen, due to being under the influence of drugs and alcohol, was charged with two counts of manslaughter in the second degree, one count of aggravated vehicular manslaughter, and one count of operating a vehicle under the influence of drugs and alcohol.

The first trial resulted in a hung jury and it preceded to a second trial.

The prosecution explained that Jorgensen was traveling in excess of 50 miles per hour in a 30 mile-per-hour zone and, while under the influence of prescription drugs and/or alcohol, she struck the Kelly vehicle in the Kellys’ lane of traffic. As a result of the collision, Jorgensen, who was not wearing a seatbelt, struck the steering wheel, causing injury to her unborn baby. The prosecution argued at trial was that Jorgensen’s reckless conduct not only resulted in the death of the Kellys, but also her six-day-old child.

The jury found Jorgensen not-guilty on all counts except one count of manslaughter in the second degree for the death of her child.

That verdict was overturned by the appeals court wrote wrote in part:

They determined that the six-day-old baby was not afforded personhood status because under New York statute. “(H)ad defendant’s fetus died in utero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a ‘person,'” they wrote.

“The People 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,” they concluded.

Judge Eugene Fahey in his dissent wrote “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.”

And Jesus wept.

HT: Publius Forum

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