CAN A PREGNANT WOMAN WHO KILLS TO PROTECT HER UNBORN CHILDREN ASK A JURY TO ACQUIT HER ON A "DEFENSE OF OTHERS" THEORY?
A Recent Michigan Case Says Yes

The defense would apply, for instance, if you shoot someone who is about to kill your friend or family member. A recent Michigan Court of Appeals case, People of the State of Michigan v. Kurr, tested the limits of the "defense of others" defense.

In Kurr, a woman named Jaclyn Louise Kurr claimed she had killed a man because he had threatened her unborn children. She therefore argued that she should be able to ask the jury to acquit her on the ground that she acted in defense of others.

The trial court refused the instruction, but the Court of Appeals held that it should have been given, and remanded for re-trial.

Was the Court of Appeals right? And how does its holding square with the Supreme Court's abortion precedents?

Kurr's "Defense of Others" Claim, At Trial and On Appeal

Knowing that the she was pregnant with quadruplets, Kurr contended, her boyfriend had twice punched her in the stomach - to try to get her to miscarry or to otherwise harm the fetuses. When he lunged at her to try to punch her a third time, she said, she stabbed him to prevent a miscarriage.

At the time, the fetuses were seventeen weeks old. They thus were not "viable" - that is, they were incapable of surviving outside of their mother's womb.

The trial court accordingly rejected Kurr's request for a defense of others instruction. Because the fetuses were not "living human being[s] existing independent" of Kurr, it reasoned, "there [were] no others" to ground her alleged defense.

The appeals court, as noted above, disagreed. It pointed to a Michigan statute that criminalized certain assaults against pregnant women that result in harm to the fetus. The statute, it reasoned, reflected a "public policy to protect [a fetus or an embryo] from unlawful assaultive or negligent conduct," and a judgment that "fetuses are worthy of protection as living entities." Therefore, the court concluded, the statute implicitly authorized actions to defend a fetus from the harms the statute sought to prevent.

The Kurr Decision and The Supreme Court's Abortion Cases: Why They Conflict

But is it really that easy to reconcile the Kurr appeals decision with Roe v. Wade and Planned Parenthood v. Casey, the major Supreme Court decisions protecting the right to abort a non-viable fetus? The answer is no - the conflict is much more real than the Michigan court acknowledged.

The law permits private citizens to take human life only under the most compelling and grave of circumstances. That reflects the high value the law places on human life, as well as its reluctance to allow the taking of life. Generally, a life can be taken only in order to prevent an aggressor from imminently taking another life.

That principle is the source of both the "self-defense" and "defense of others" theories by which criminal liability can be negated by a truly life-saving purpose. To trigger either of these defenses, the aggressor's attack not only must be deadly, it must threaten a human life - not, for instance, the life of an animal, or the existence of a human's property.

So only if a non-viable fetus is a human life - or sufficiently similar to human life as to require corresponding protections - does this defense apply to Ms. Kurr's actions. But didn't Roe v. Wade say precisely the opposite, and didn't Planned Parenthood v. Casey reaffirm that judgment only ten years ago?

The Direct Conflict Between Roe and Casey, and the Michigan Case

According to these precedents, the Constitution entitles a woman to abort a non-viable fetus for any reason. The mother's life need not be in danger. (Indeed, even danger to her physical or psychological health is not required.)

Therein lies the conflict. Where abortion of a non-viable fetus is concerned, the traditional predicate for the use of deadly force - the initiation of deadly force against oneself or another -- is irrelevant. That seems to imply that a fetus is not a full human life. And indeed, that is what Roe directly held.

Roe found that a non-viable fetus represents, at most, "potential life." Given a mother's privacy interest in reproductive autonomy, that potential life, the Court concluded, was not entitled to constitutional protection. Certainly a woman cannot take an actual human life - say, her husband's - in order to have an abortion - say, one the husband otherwise would have blocked. But she can take a potential human life for this reason.

One might respond that a compromise position is possible. Under this position, the life of a non-viable fetus is insufficiently realized to outweigh the privacy rights of the mother. But it is also sufficiently realized to preclude a deadly attack by a person who cannot assert any such rights. The mother, on this theory, has a special, additional justification for abortion that a third party attacker cannot assert.

But while this theory may sound plausible, it seems to privilege a mother's privacy interests in ways inconsistent with Roe. According to Roe, viability - and not any earlier point -is the moment when the state's interest in potential life overcomes the mother's privacy interests. After that point, traditional self-defense principles take over: A woman may abort a viable fetus only when necessary to protect her life or health.

But if traditional self-defense principles do not apply before viability, why should traditional "defense of others" principles - which run directly parallel - apply at that early point?

What, Exactly, Is the Value of the Potential Life a Non-Viable Fetus Represents?

In the end, this conundrum asks us to question how much value, in human terms, society is prepared to ascribe to fetuses - whether viable or not. Courts need to address this question directly - and not punt, as they often do, by relying on technical distinctions to avoid it.

The Kurr court asserts that its holding and Roe are consistent, but on closer examination, that claim cannot stand. Courts need to look deeper and find a way to address the genuine, deep tension between the decisions.

To make matters even more complex, the idea of "viability" itself is under siege. Casey focused on whether abortion regulations impose an "undue burden," signaling a move away from the viability test. And a fetus is a "potential life" whether or not it is viable. Finally, the distinction between conception and viability is being whittled away as fetuses become viable at earlier and earlier points in the gestational period, and more and more able to survive in other wombs, or even outside the womb.

At the same time, state and federal entities are continuing to enact additional laws prohibiting various harms against fetuses. In this climate, it will become increasingly incumbent upon our courts to rigorously explicate fetal interests, in life or potential life. Courts will also increasingly need to specifically addresses the relationship of those interests to a range of implicated public policy questions.

These questions can no longer be avoided. A sustained substantive analysis of these issues is needed - and as long as courts follow the Kurr court in omitting to provide such an analysis, their rulings in these matters will continue to pose more questions than they answer.