Magazine | December 21, 2015, Issue

The Right to Be a Victim

Anti-abortion and pro-choice demonstrators argue in front of the Supreme Court, January 2011 (Chip Somodevilla/Getty Images)
How legal abortion creates an absurdity in criminal law

In 1986, Leonard Hall of New York City got into a brawl with a man in a store at the corner of 127th Street and Lenox Avenue. Unsatisfied with the outcome, he left to fetch his pistol and ambushed the man outside a pool hall. Like many criminals, Hall was a terrible shot, and his fusillade missed his intended victim entirely. He did manage to shoot — twice — Brigette Garrett, who was on her way to Sylvia’s, the famous Harlem restaurant. Garrett was nearly eight months pregnant, and the bullet that passed through her abdomen destroyed her placenta, some of which was visibly hanging out of the exit wound when doctors began performing an emergency Caesarean-section delivery of her daughter, Atallia.

Atallia was born with a weak heartbeat and breathing problems. Beyond the usual difficulties associated with premature birth, she had suffered oxygen deprivation as a result of the destruction of the placenta. But there was some cause for hope: She was two pounds five ounces at birth, and the vast majority of premature children born at that weight survive. Her medical condition was upgraded by physicians as her circulatory and respiratory systems began to recover. She was moving her arms and legs. And then her condition suddenly deteriorated, as a result of hyaline membrane disease, which was also caused by the destruction of the placenta by Hall’s bullet. Atallia died 36 hours after birth.

Hall was convicted of manslaughter in the second degree.

His defense argued on appeal that the manslaughter charge against him should be thrown out in light of New York’s abortion laws, claiming that Hall’s conviction established a precedent under which a doctor performing an abortion who accidentally caused the live delivery of an infant who later died could be convicted of manslaughter. This was met with scoffing from the appellate judge, whose annoyance with the argument is evident in the prose of his decision in People v. Hall, an important case in the legal history of New York’s “born alive” rule.

An ancient feature of the common law, the born-alive rule has long been formally incorporated into New York’s penal code and was first cited in the 1949 case of People v. Hayner, in which a homicide conviction involving a newborn was thrown out on the grounds that the prosecution had not established that the infant had been born alive. Section 125 of the state penal code is fairly straightforward on the meaning of the term “person,” which, “when referring to the victim of a homicide, means a human being who has been born and is alive.” New York has a separate body of law dealing with the reckless or intentional killing of a fetus, which is classified under the heading of “abortion” in the penal code, which is somewhat misleading in that licensed physicians’ performing abortions on consenting patients (what we normally mean by “abortion”) is exempted. There wasn’t any question that Atallia had been born alive, and the appellate judge rightly concluded that arguments having to do with fetal death were irrelevant to the case, in that there was no fetal death.

It has long been established that an infant born alive can be considered a victim of a crime as a result of injuries suffered prenatally: In the 1982 Bolar case in Illinois, a man was convicted of reckless homicide for drunkenly crashing his car into that of a pregnant woman, inflicting injuries that killed her child shortly after his birth; in Georgia’s 1982 Ranger case, a man was convicted of felony murder after having stabbed a pregnant woman in the abdomen, puncturing the placenta and causing the same Hyaline membrane disease that killed Atallia. Many cases involved reckless driving; the one case involving abortion (the 1985 Showery decision in Texas) found a doctor being convicted not of abortion but of suffocating a newborn whom he had delivered alive in the course of attempting to perform an abortion by hysterectomy. In that case, the Texas court wrote: “At the outset, we note that this is not an appeal from a conviction for criminal abortion. . . . This is not an appeal from causing the death of either a fetus or a child by omitting to perform a duty imposed by law for the preservation of life. This is an appeal from a conviction . . . for an alleged affirmative act of murder directed against a newborn infant, and the judgment must rise or fall upon the proven merits of such an allegation.”

There is an inevitable tension between laws that protect the lives of the unborn from ordinary criminal assault by pistol-wielding hooligans and laws that permit the termination of the unborn by scalpel-wielding abortionists. In many of the cases cited in the Hall decision, manslaughter and murder charges would not have been contemplated if physicians had been a few minutes slower in delivering a wounded child. If the doctor in Showery had bothered to suffocate the baby before removing it from the womb, he would have been protected under the law.

But the born-alive standard has competition. When Congress was considering the Unborn Victims of Violence Act (the original version of which was introduced by Lindsey Graham), Democrats strongly opposed it, because it defined “child in utero” as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.” New York’s Representative Jerrold Nadler put it bluntly: “We cannot agree to the bill, because the whole point of the bill is to establish legally separate fetal personhood. This would undermine the entire rationale of Roe v. Wade and undermine a woman’s right to choose, because if a fetus is a separate legal person, how can she choose to terminate the pregnancy?” If you are wondering what it takes to get self-proclaimed feminists to oppose a bill enhancing penalties for violent crimes against women, you have your answer: We cannot punish men for beating women to the point of fetal death because women sometimes might want to inflict fetal death themselves. The bill eventually was passed, with House Democrats opposing it by a ratio of more than three to one.

Representative Nadler was of course correct about the effect of the bill, if not its intent. The born-alive rule, like many common-law approaches to abortion and fetal death, is bound up in ancient religious ideas about such topics of medieval speculation as “quickening” and “ensoulment,” and the ruling position on the question of abortion today is in the end indistinguishable from these metaphysical approaches, holding, as it does, that at some point in the infant’s development “personhood” descends upon him from the penumbras. While the abortion lobby is busy counting how many Supreme Court justices can dance on the head of a pin, the purported religious crazies in the pro-life camp have embraced the straightforwardly biological language of the Unborn Victims of Violence Act. As our understanding of what’s going on in the months between conception and birth advances, our understanding of fetal development moves from the metaphysical to the physical: Once one accepts that what’s in the womb is a living individual organism of the species Homo sapiens — that what is in the womb isn’t a tumor or a pint of blueberries — one must practice ever more absurd “moral personhood” gymnastics to justify the unlimited abortion license. This is intensified by the fact that advances in medical care have made the “viability” standard — that a fetus should be protected once it is able to survive outside the womb — a quickly moving goalpost.

But the Left is entirely committed to the notion that there is no legally enforceable moral relationship between a woman and a child she is carrying. Defending the abortion license at all costs sometimes means letting someone get away with murder — or at least manslaughter.

A New York appellate court has just thrown out the manslaughter conviction of Jennifer Jorgensen of Long Island. According to prosecutors, Jorgensen was intoxicated, speeding, and wearing no seatbelt when she steered her car into oncoming traffic on Whiskey Road (a geographic detail that would seem too heavy-handed if it had been invented for a work of fiction) in 2008. She smashed head-on into the car of Robert and Mary Kelly, killing them both. She was herself eight months pregnant, and her daughter was grievously wounded, though she survived for several days after emergency surgery. Jorgensen was acquitted of the manslaughter charges against her in the deaths of the Kellys but was convicted in the death of her daughter. That conviction was overturned in October, and this establishes a troubling precedent.

The decision by the New York appellate court inverts the born-alive rule, insisting that Jorgensen’s daughter could not be considered a person for the purposes of being a victim of negligent homicide because she was still in the womb when she suffered her injuries. This ignores decades of precedent and an ancient common-law tradition. That fact is not lost on Judge Eugene Fahey, who wrote in his dissent: “The pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed,” i.e., the standard adhered to in Hall and its associated cases.

Writing for the majority, Judge Eugene Pigott Jr. argued, “Conceivably, one could find it ‘reckless’ for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions. Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother.” That objection is absurd. Some parents rush their children off to the doctor at the first sniffle while others wait until the emergence of more serious symptoms, and our criminal-justice system has an excellent record of distinguishing ordinary differences in domestic habits from criminally liable neglect. Jorgensen was not in fact charged with manslaughter for shooting nine holes of golf while eight months pregnant but for driving drunk and causing a fatal automobile accident, i.e., for inherently criminal behavior.

The born-alive standard is defective, inasmuch as it invests a positional difference with moral weight, and does so without any rational basis: Surely a human organism 30 seconds after birth is not biologically different enough from one 30 seconds before birth to give rise to any substantive differences between the duties we owe them. New York is one of a minority of U.S. states with no fetal-homicide law, and it is, under the recent ruling, regressing from even a modest born-alive standard toward one that puts no legal weight whatsoever on the life of an unborn child. Jorgensen’s daughter was nearly one week old at the time of her death, but, according to New York’s appellate court, she could not be a homicide victim. “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person,” Judge Fahey wrote in his dissent. The savage majority says otherwise.

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