A 19-year-old mother who shot herself in the womb to end a pregnancy cannot be prosecuted for killing the fetus that was delivered alive but died two weeks later, Florida's Supreme Court ruled Thursday.
Citing 400-year-old English Common law, Florida's highest court threw out manslaughter and third-degree murder charges against Kawana Ashley, who has been awaiting trial since March 1994 for firing the single shot that led to the death of her 25-week-old fetus.
In a unanimous ruling, the court rejected state prosecutors' arguments that Ashley's act amounted to an illegal abortion and that she should be punished for the self-inflicted wound that killed her baby.
At the center of the controversy is a provision in common law dating from the 1600s that says a pregnant woman cannot be held criminally liable for fetal death resulting from an abortion attempt.
The common law, adopted by U.S., explicitly differentiates between that and the same act committed by someone else.
"At common law, while a third party could be held criminally liable for causing injury or death to a fetus, the pregnant woman cannot," the court ruled.
Ashley, then 19, was poor, unemployed and 25 weeks pregnant when she fired the .22 caliber bullet into her abdomen March 27, 1994. She testified she could not afford a third-trimester abortion, and neither the father nor Medicaid would pay.
The shot struck her fetus on the wrist. After being delivered by emergency Caesarean section, the premature baby, named Brittany, died of organ failure 15 days later.
Ashley was originally charged with third-degree murder and manslaughter. A state appellate court threw out the murder charge but upheld the manslaughter charge. Both sides appealed.
The Florida high court heard arguments in the case last November. If convicted of manslaughter, Ashley would have faced 60 to 90 months in prison. Her sentence for third-degree murder could have been up to 120 months.
"It's an extremely gratifying ruling," said Ashley's attorney, Priscilla Smith of the Center for Reproductive Law and Policy in New York. "The court has recognized that the pregnant woman's relationship to her fetus and pregnancy is different from anyone else's relationship to the pregnancy."
The high court took pains to say lawmakers could change Florida statutes to make Ashley's actions a crime. Such a law would undoubtedly face constitutional challenges but until a state law directly refutes common law, the protections for pregnant women will remain.