Michigan appeal case possible threat to Roe vs. Wade

S By Clifton Adcock

sTILLWATER, Okla. (U-WIRE) – A Michigan Supreme Court Decision on the fate of a woman accused of killing her boyfriend could have implications on one of the most hotly debated court decisions in American history. Jaclyn Kurr, who is currently serving a prison sentence of five to 20 years for manslaughter, was 17 weeks pregnant when she stabbed and killed her boyfriend and the father of her child, Antonio Pena, after he had apparently punched her in the stomach. She later had a miscarriage.

Kurr’s attorney argued that she was defending herself and the unborn fetus under a defense of others statute in Michigan which states a person “has the right to use force or even take a life to defend someone else under certain circumstances if a person acts in lawful defense of another,” according to www.foxnews.com.

However, the judge would not allow the jury to consider the defense of others’ argument, stating that since the fetus was not yet 22 weeks old, the point at which the law determines the fetus is viable, Kurr’s actions could not legally be considered defending another person. The jury subsequently found Kurr guilty and sentenced her to five to 20 years in prison for manslaughter.

Kurr’s conviction was overturned in October, however, by a state court of appeals and the case is now being appealed to the Michigan Supreme Court. The court is currently considering taking up the case, and Kurr is now serving her sentence, awaiting the appeal.

Michael Scaperlanda, OU law professor specializing in constitutional law, said if Kurr is cleared by the Michigan Supreme Court, the decision could have a long-term effect on the Roe vs. Wade case of 1973, which legalized abortion without the mother being in bodily danger, and though abortion is legal, many states have laws protecting the unborn.

“Since Roe, the law about protection of the unborn has been schizophrenic,” Scaperlanda said. “If the woman considers the fetus a child, then the state has laws to protect it. As people become more educated to the humanity of the unborn, in the long run it’s going to undermine Roe.”

Scaperlanda also said many early feminists during the 19th century such as Susan B. Anthony were pro-life, and as technology has improved, the fetus has taken on more humanistic qualities, as well as convinced more people that life begins at the moment of conception.

“As a society, we know that a fetus is a human life,” Scaperlanda said. “It’s not really ’till the mid to late ’60s when we started to question if it is a human life.”

Shayna Kutt, chairperson of the Norman chapter of the National Organization for Women, said the Kurr case would be a tough decision, and that women’s rights may be undermined in the process.

“That’s a dangerous question when the fetus has more rights than the mother,” Kutt said. “And it’s a slippery slope toward illegalizing abortion. It’s a tough one, but she did commit murder.”

Kurr also said the outcome of the case would probably have an effect on Roe vs. Wade, and that one Supreme Court Justice appointed by President George W. Bush could actually overturn Roe vs. Wade.

“We believe that a mother should have a choice,” Kurr said. “We’ve got to keep a woman’s rights more important than a fetus’. If they bring in the murder of an unborn baby before it’s legally viable, that does have implications.”