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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.
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.
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