Challenge to fetal protection law
The Detroit Free Press reports that an Oakland County Circuit judge is considering a defendant's challenge to the constitutionality of Michigan's new law providing a criminal penalty for injury to a fetus based on a wrongful act against "a pregnant individual". The statute was originally enacted in 1998, but was successfully challenged on the basis of its reference to the "death" of the fetus. The current version prohibits acts which "result in a miscarriage or stillbirth by that [pregnant] individual or death to the embryo or fetus".
The defendant claims that the statute is contrary to Federal case law protecting a woman's right to abortion. In our view, this statute protects the integrity of both the woman and her fetus, and has nothing to do with the abortion issue. The loss of a wanted pregnancy is surely a loss that the law has the right to try to prevent. Except in the situations where the U.S. Supreme Court says it cannot do so, the Legislature has the power to protect and preserve the life of a fetus. There are numerous other statutes which serve the same interest:
- 333.2685 Use of live human embryo, fetus , or neonate for nontherapeutic research
- 333.2690 Sale, transfer, distribution, or giving away of embryo, fetus , or neonate
- 750.90g "Infant protection act"
The criminal statutes in question --
- 750.90c Gross negligence against pregnant individual as crime
- 750.90e Conduct as proximate cause of accident involving pregnant individual
A related civil liability statute is found at MCL 600.2922a, and applies to negligent or other wrongful acts occurring after May 1, 2002.
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