Mississippi Supreme Court: Fetus a person

DinoDoc · August 22, 2003, 21:50

Quote:

The Mississippi Supreme Court, in a decision criticized by one of its members as an assault on Roe v. Wade, held Thursday that a fetus is a "person" under state law and wrongful death claims can be filed on its behalf.

The justices upheld a Bolivar County woman's right to pursue a wrongful death claim after she alleged emotional distress and a mistake by her doctors caused her to have a miscarriage. The fetus was 19 weeks old at the time, according to doctors.

Presiding Justice Chuck McRae, in a written dissent, described the decision as an assault on Roe v. Wade, the landmark ruling that legalized abortion in America.

McRae said the decision will only create more confusion in the courts. The opinion noted that six other states have a similar wrongful death provision but did not name the states.

The 6-2 ruling expands the definition of a "person" in wrongful death statutes to include an "unborn child."

Current law allows people to sue for the wrongful death of a newly born or prematurely born fetus that would have been expected to live.

Presiding Justice Jim Smith, writing for the court, said Thursday's ruling in the lawsuit brought by Tracy Tucker had nothing to do with abortion. He said doctors performing abortions are still protected by Mississippi law.

"Tucker and the state share a common interest and goal to preserve the life of a fetus injured by the conduct of another," Smith wrote. "Tucker's interest is to protect and preserve the life of her unborn child, not in the exercise of her right to terminate that life which has been declared constitutional by the U.S. Supreme Court."

What Thursday's decision does, Smith said, is extend the right to file a lawsuit under the wrongful death statute to cover non-viable fetuses.

The justice explained that courts have applied the term "viable" to a newborn infant, including one prematurely born that is developed sufficiently to continue living.

Smith noted there is some difficulty in determining the viability and non-viability of a fetus. He said such issues must be settled by a jury.

Smith also cautioned that a jury must still determine if a cause of action dates from the death of the child and whether the fetus was "quick" in the mother's womb. A "quick" fetus is defined as one "that has developed so that it moves within the mother's womb."

Pat Cartrette, executive director of Right to Life of Jackson, said the decision "affirms the way the Mississippi law protects an unborn child."

She said while the decision may not directly affect Roe v. Wade, it gives a fetus some legal protection when it develops reflexes, which in some cases is as early as 8 weeks.

Sondra Goldschein, state strategies attorney for the American Civil Liberties Union, said she's troubled by the court's definition of a fetus as a "person."

"Anytime the fetus is recognizable as a person it chips away at the foundation of Roe," she said.

Goldschein said women should be able to collect damages for the loss of a pregnancy without that definition.

Tucker sued a credit union, an auto repossession company, a Cleveland doctor and a hospital after she suffered a miscarriage in 1997. She alleged in her lawsuit that the emotional stress of fighting her car's repossession and a misdiagnosis led to the miscarriage.

Ridgeland attorney Thomas C. Gerity, representing Mississippi Auto Recovery, declined to comment. Other attorneys involved in the litigation could not be reached for comment.

In 2001, a Bolivar County judge declined to dismiss Tucker's lawsuit and allowed all parties to ask the Supreme Court to decide whether Tucker's wrongful death claim was legal. The parties agreed that the fetus was not viable when the miscarriage occurred.

The case now goes back to Bolivar County for trial.

http://www.clarionledger.com/news/0308/22/m01.html

molly bloom · August 22, 2003, 22:01

Composers: David Howman & Andre Jacquemin
Authors: Michael Palin & Terry Jones
From the Movie 'The Meaning of Life'

DAD:
There are Jews in the world.
There are Buddhists.
There are Hindus and Mormons, and then
There are those that follow Mohammed, but
I've never been one of them.
I'm a Roman Catholic,
And have been since before I was born,
And the one thing they say about Catholics is:
They'll take you as soon as you're warm.
You don't have to be a six-footer.
You don't have to have a great brain.
You don't have to have any clothes on. You're
A Catholic the moment Dad came,
Because
Every sperm is sacred.
Every sperm is great.
If a sperm is wasted,
God gets quite irate.
CHILDREN:
Every sperm is sacred.
Every sperm is great.
If a sperm is wasted,
God gets quite irate.
GIRL:
Let the heathen spill theirs
On the dusty ground.
God shall make them pay for
Each sperm that can't be found.
CHILDREN:
Every sperm is wanted.
Every sperm is good.
Every sperm is needed
In your neighbourhood.
MUM:
Hindu, Taoist, Mormon,
Spill theirs just anywhere,
But God loves those who treat their
Semen with more care.
MEN:
Every sperm is sacred.
Every sperm is great.
WOMEN:
If a sperm is wasted,...
CHILDREN:
...God get quite irate.
PRIEST:
Every sperm is sacred.
BRIDE and GROOM:
Every sperm is good.
NANNIES:
Every sperm is needed...
CARDINALS:
...In your neighbourhood!
CHILDREN:
Every sperm is useful.
Every sperm is fine.
FUNERAL CORTEGE:
God needs everybody's.
MOURNER #1:
Mine!
MOURNER #2:
And mine!
CORPSE:
And mine!
NUN:
Let the Pagan spill theirs
O'er mountain, hill, and plain.
HOLY STATUES:
God shall strike them down for
Each sperm that's spilt in vain.
EVERYONE:
Every sperm is sacred.
Every sperm is good.
Every sperm is needed
In your neighbourhood.
Every sperm is sacred.
Every sperm is great.
If a sperm is wasted,
God gets quite iraaaaaate!

Embryonic News

Zygote votes for Schwarzenegger, but seminal fluid is supporting Davis!

Miscarriage joins army, says 'Life didn't start out so good, but know I'm hoping to make something of myself.'

Placenta divorces foetus- 'We were just drifting apart. We had nothing in common any more.'

Al B. Sure! · August 22, 2003, 22:25

that tucker case is weird... she's sueing a repo company for stressing her out so much that she had a miscarriage? thats strange as i dont know what...

but hey you kill a pregnant woman and you rightfully are convicted for double homicide (I hope this is in every state) so wrongful death fits too probably

TCO · August 22, 2003, 23:13

If a fetus is a person for murder or the like but not for abortion it is like a slave being 3/5 of a man.

Al B. Sure! · August 22, 2003, 23:20

TCO:

nah i think the logic of a fetus being a person for a murder is that the woman wanted the baby to live... if we assume that the woman's right to choose the fate of her unborn child is superior to the unborn child's live (which it is according to the law, unfortunately)... the murdered woman's right to having her child be born was lost through the murder... trying someone for murdering a fetus in such a manner has little to do with the pro-life/pro-choice debate...

monkspider · August 22, 2003, 23:25

Just wait till this gets to a real court.

TCO · August 22, 2003, 23:27

Quote:

Originally posted by Albert Speer
TCO:

nah i think the logic of a fetus being a person for a murder is that the woman wanted the baby to live... if we assume that the woman's right to choose the fate of her unborn child is superior to the unborn child's live (which it is according to the law, unfortunately)... the murdered woman's right to having her child be born was lost through the murder... trying someone for murdering a fetus in such a manner has little to do with the pro-life/pro-choice debate...

Sounds like "it being ok for a master to kill a slave but not others".

If the fetus is part of the woman's body, than killing the fetus is battery, not murder.

DinoDoc · August 22, 2003, 23:28

Quote:

Originally posted by monkspider
Just wait till this gets to a real court.

You should be happy then. It says it the end of the article the case is going to Bolivar County for trial.

St Leo · August 22, 2003, 23:30

/me goes off to kill a few billion sperm

Al B. Sure! · August 22, 2003, 23:31

GP:

Quote:

Sounds like "it being ok for a master to kill a slave but not others".

thats exactly what it is...

SlowwHand · August 22, 2003, 23:34

No big surprise. A fetus IS a person.

Al B. Sure! · August 22, 2003, 23:40

and i am bothered by the fact that monkspider, who supposedly is a christian, is in favour of abortion...

TCO · August 22, 2003, 23:43

I'm not saying that I am anti- abortion. I just think it is hard to really convict a person of the evil crime of murder when he didn't kill a real person. It's sorta like killing a pet dog or so...

TCO · August 22, 2003, 23:45

Oh...and infanticide to age 2 should be allowed as well.

Al B. Sure! · August 22, 2003, 23:55

GP:

when i was younger, i thought infanticide to age 2 or so wasnt that bad either because i figured the baby had no real attachment to anything in this world, etc. but no... thats just a jackass belief...

SlowwHand · August 22, 2003, 23:56

Abortion, except in a case of rape or incest, or a threat to the health of the mother, is murder.
I wouldn't burn down clinics or shoot doctors, but the fact remains.

Al B. Sure! · August 22, 2003, 23:58

Sloww:

how about adding severe birth defects for the child onto that list...?

TCO · August 23, 2003, 00:01

What if you just don't like the way it looks?

Sprayber · August 23, 2003, 00:14

warning*** personal opinion follows

Usually I stay out of this topic. I guess I just don't feel like getting into an argument with people, But when my fiance died she was pregnant with our child. It is my belief that I lost two people that day. I know many here would disagree or try to explain it in scientific terms why that belief was wrong. Before it happened I didnt really know where I stood on the subject of when life begins. I guess I could be accused of thinking of it in emotional terms and not technical terms. I just know how it has shaped my views on the topic...

The Templar · August 23, 2003, 00:16

Quote:

Originally posted by SlowwHand
Abortion, except in a case of rape or incest, or a threat to the health of the mother, is murder.
I wouldn't burn down clinics or shoot doctors, but the fact remains.

This is what always confuses me about pro-lifers/anti-choicers - why is there an exception for rape and incest. If a fetus is a person, and therefore abortion is murder - why does the origin of a fetus matter? After all, if a three year-old is the product of rape we would condemn a mother who killed the three year-old.

Is a fetus a person? If you answer yes, I don't see how you may then consistently condone the abortion of a fetus that is the product of rape. After all, the fetus is not at fault for the rape, right? He/she/it had no hand in the rape. Why the inconsistency? Do you need a few minutes to get your story straight?

That sound you hear is the cognitive dissonace in your head.

Al B. Sure! · August 23, 2003, 00:16

GP:

i dont think any of us looked at all the same as we do now like we did at 2 years old... people's look changes very dramatically.

notyoueither · August 23, 2003, 00:19

Why not shoot them after birth, in the case of severe handicap?

yavoon · August 23, 2003, 00:19

Quote:

Originally posted by The Templar

This is what always confuses me about pro-lifers/anti-choicers - why is there an exception for rape and incest. If a fetus is a person, and therefore abortion is murder - why does the origin of a fetus matter? After all, if a three year-old is the product of rape we would condemn a mother who killed the three year-old.

Is a fetus a person? If you answer yes, I don't see how you may then consistently condone the abortion of a fetus that is the product of rape. After all, the fetus is not at fault for the rape, right? He/she/it had no hand in the rape. Why the inconsistency? Do you need a few minutes to get your story straight?

That sound you hear is the cognitive dissonace in your head.

pragmatism. I have no doubt that many xtians would not want a child aborted irregardless. but since they are at present losing the battle for choice extending all the way out to rape isn't likely.

MichaeltheGreat · August 23, 2003, 00:19

Quote:

Originally posted by monkspider
Just wait till this gets to a real court.

Actually, it's only a very limited extension of law, in that (a) it only (as an issue of fact) addresses a 19 week or later fetus; (b) the tort action for "wrongful life" is well established, so if the result was severe disability, and not miscarriage, there would be a cause of action; and (c) Roe v. Wade does establish as a matter of law that the state has and may assert an independent interest in the fetus prior to birth.

Al B. Sure! · August 23, 2003, 00:22

Templar:

polls seem to show that the majority of americans do not want roe vs wade to be struck down but are against abortion on demand... the majority of americans are also in favour of tax dollars going towards funding abortion clinics to give free abortions to poor women... nevertheless, abortion on demand is very much disliked by americans...

the whole abortion issue is thus very inconsistant... its not just extreme pro-lifers... the majority of americans are very inconsistant in this issue... its the result of the tug of war between compassion for the woman who doesn't want or can't afford a child right now and compassion for the unborn life...

SlowwHand · August 23, 2003, 00:23

I accidently left that one off the list, Albert.

DinoDoc · August 23, 2003, 00:24

Quote:

Originally posted by MichaeltheGreat
Actually, it's only a very limited extension of law, in that (a) it only (as an issue of fact) addresses a 19 week or later fetus; (b) the tort action for "wrongful life" is well established, so if the result was severe disability, and not miscarriage, there would be a cause of action; and (c) Roe v. Wade does establish as a matter of law that the state has and may assert an independent interest in the fetus prior to birth.

Thanks. I didn't know if McRae was talking crap or not.

TCO · August 23, 2003, 00:35

Quote:

Originally posted by notyoueither
Why not shoot them after birth, in the case of severe handicap?

Just have the doctor kill it.

Al B. Sure! · August 23, 2003, 00:38

kill it...

for shame...

MichaeltheGreat · August 23, 2003, 00:40

Quote:

Originally posted by DinoDoc
Thanks. I didn't know if McRae was talking crap or not.

He may or may not be. Wrongful death of a fetus is certainly an odd cause of action to pursue, since wrongful death as a matter of law is an economic issue, not one for punitive or consequential damages. Normally, it's a nice tort when you've got some guy about 40-50 with a useful economic life ahead of him, and a provable income history behind him, so you get relatively less BS when it comes down to proving an expected future lifetime earning.

With an fetus or infant, you get into a big issue of whether junior would have grown up to be the future CEO of Intel, or if he would have spent his days bagging groceries at the local Piggly-Wiggly. Things like whether you use nationwide average earnings stats, or Mississippi only, are another argument and another avenue of appeal if you think the jury came back with the wrong number.

Whether the plaintiff has an agenda with seeking a ruling on fetal status, or whether the plaintiff's lawyer figured there was more of a potential award on that theory than on a normal negligent/intentional infliction of emotional distress pair of torts depends on Mississippi's jury instructions on infliction of emotional distress, and whether Mississippi has any caps on non-economic damages. Without that info, or some clear statement of intent, it's hard to know what the plaintiff and her lawyer was up to.