Viable fetuses legally protected from killing, Okla. appeals court rules

January 26, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The long-term campaign to gain legal protection for fetuses made another significant gain this week as Oklahoma's highest court ruled that it is homicide to kill a fetus still in the womb but developed enough to live outside.

Since the point of "viability" is around 23 to 24 weeks, the unanimous decision by the Oklahoma Court of Criminal Appeals could mean criminal prosecutions for the death of fetuses that have reached the third trimester of pregnancy.

The Oklahoma tribunal, the highest court in that state for criminal cases, on Monday joined three other states -- Kansas, Massachusetts and South Carolina -- in abandoning a legal rule dating from the 14th century and once followed across the nation: that a fetus must have been carried to term and have been born as a live child before it is protected against murder or manslaughter.

A number of groups, such as the Legal Center for Defense of Life in New York City, have been working for years to improve the legal standing of fetuses, in hopes of establishing their basic premise that a fetus is a "human being" with rights of its own. The Supreme Court has rejected that argument as a question of U.S. constitutional law.

The aim of that effort has been partly to obtain an added legal basis for challenging abortion and partly to gain added public sympathy for fetuses to put greater pressure on legislatures not only to restrict abortion rights, but also to provide added benefits for the families of fetuses that are injured or die before birth.

The Oklahoma court made clear yesterday, however, that a homicide charge for killing a "viable" fetus cannot be made against a doctor who performs an abortion, or a pregnant woman who has the operation, because abortion is still the woman's constitutional right.

But, in what clearly was a victory for the fetal-rights movement, it declared: "A viable human fetus is nothing less than human life."

Its ruling came in the case of an Oklahoma City woman, Treva LaNan Hughes, who was convicted of first-degree manslaughter for the death in early August 1990 of a fetus that was due to be delivered four days later. Ms. Hughes, convicted also of drunken driving, drove her car into another driven by a pregnant woman, Reesa Poole. Ms. Poole was thrown into the steering wheel, fatally injuring the fetus.

Ms. Hughes, was sentenced to eight years in prison for killing the fetus, but she challenged her conviction and sentence, contending that she was protected from the charge by the "born alive" rule.

That rule, the state court declared, was based on the now-outmoded idea that no one could tell when a fetus in a woman's body was alive. That now can be determined, the court said, and it found that the fetus in this case was viable.

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