THE BLOG
09/16/2015 02:21 pm ET Updated Sep 16, 2016

Woman Prosecuted for Loss of a Child After Birth

In a particular, topsy-turvy country in our world, all pregnant women are potential criminals, because of harm they might cause their children during pregnancy. If a baby's death can be linked, however remotely, to something a woman did during pregnancy, a woman can be prosecuted and convicted of manslaughter. In this strange place, women are second-class citizens, not equal under the law, because it is a crime for a woman to lose a pregnancy.

Would that be in Bizarro World, the comic-book planet where everything is opposite to our reality? No, this happened right here, in the U.S.A., circa 2015.

Welcome to American women's own future Bizarro World.

A woman in Long Island was convicted of manslaughter in the death of her newborn daughter, because of actions she took while she was still pregnant and the child was yet unborn. How did she "kill" her 5-day-old baby? Did she shoot heroin while pregnant? Free-base cocaine? Purposely try to self-abort? None of the above. She was convicted for killing her own baby because she wasn't wearing a seatbelt when her car crashed into another.

After the crash, the 8-months pregnant Jorgensen was admitted to the hospital and her baby was delivered by emergency Caesarean section. The baby was listed in stable condition in the hospital's neonatal ICU, but then died 5 days later. A jury acquitted Jorgensen in the deaths of the other car's occupants, and acquitted her of any impairment caused by drugs or alcohol, but found her guilty of her baby's death due to reckless endangerment since she wasn't wearing her seat belt.

The case is currently under appeal in the New York court, and her lawyers argue that if her conviction is upheld, it sets an astonishing precedent of making every pregnant woman at risk for prosecution. Were you wearing high heels when you slipped on the ice while pregnant? Guilty. Did you make the conscious choice to step on ice in the first place, knowing the potential risks to your unborn child? Guilty. Did you run a marathon, fall off a boat, or forget to take your pre-natal vitamin? Guilty. Guilty. Guilty.

And it's not just the actions women do or don't take while pregnant that will be judged and sentenced. Also at issue is the very idea of how long they're responsible for those decisions. Right now, a pregnant woman has the right to refuse an emergency C-section. If Jorgensen had exercised that right of refusal just after the crash, while still pregnant, the baby could have been declared stillborn and assumedly no prosecution would have taken place. But the baby was delivered and lived, resulting in the manslaughter conviction.

How many mothers wouldn't choose to have an emergency delivery to give their baby a fighting chance? Jorgensen was more than 8 months pregnant, so she had every reason to hope that an emergency C-section might indeed save her child. And it did...for 5 days. Would she still be liable for prosecution if the baby lived for another 5 weeks? 5 months? 5 years?

There is no statute of limitations for the homicide of a child born after an accident. Why? Because in NY State, as in most other states, there is no such thing as a homicide of an unborn child. A homicide victim is defined as a person who has been born alive. So, legally, Jorgensen's unborn baby didn't even exist at the time of the accident.

Confused? So were the judges. Chief Judge Jonathan Lippman asked, "Does it matter if it's impossible to commit this crime?"

Assistant District Attorney Karla Lato responded in her brief that since other people who harm a fetus, causing post-natal death, can be convicted of manslaughter, why not the pregnant woman herself?

The ramifications of upholding this manslaughter conviction puts every pregnant woman at risk of criminality. Life itself is fraught with potential dangers, and carrying a child, even in 2015, still doesn't have guaranteed outcomes of success. Women are told to avoid caffeine, alcohol, raw fish, smoke, salmon, tuna, blue cheese, and countless other products and situations that might risk their future child's health. But with those warnings, the science is still not perfect, and the cause and effect is not absolute, so we rely on individual judgement, as well as individual freedom guaranteed by the Constitution, to do what we think is best.

But if a pregnant woman gets shot during a grocery store robbery or a drive-by shooting, is she responsible if the baby later dies? With the Jorgensen conviction, it could be argued that she "recklessly" chose to live in a dangerous neighborhood, or she saw the gun but didn't duck, or committed countless other "unreasonable" behaviors that, no matter how extreme the logic, could be used against her.

Are women to be forever guilty until proven innocent? If this decision holds, then America, 2015 has truly turned into Salem, 1692, and women's strides for equality and fairness will indeed have been tossed back into Bizarro World.