Woman, 8 months pregnant, drives recklessly, crashes; baby is born but dies of injuries caused by crash—manslaughter?

|The Volokh Conspiracy |

From People v. Jorgensen, decided yesterday by New York's high court (by a 5-1 vote):

On May 30, 2008, defendant [Jennifer Jorgensen], driving eastbound on Whiskey Road in Suffolk County, entered the westbound lane and struck the vehicle of Robert and Mary Kelly head on, killing them both. At the time of the collision, defendant was 34 weeks pregnant. She was taken to a local hospital where, due to signs of fetal distress, she consented to an emergency cesarean section. Despite the best efforts of hospital personnel, the baby died six days later. An autopsy confirmed that the cause of death was due to injuries sustained in the accident….

[D]efendant was indicted on three counts of manslaughter in the second degree (Penal Law §125.15 [1]), one count of aggravated vehicular homicide (Penal Law §125.14), and one count of operating a motor vehicle while under the combined influence of alcohol or drugs (Vehicle & Traffic Law §1192 [4-a])…. The People's theory was that defendant was traveling in excess of 50 miles per hour in a 30 mile-per-hour zone and, while under the influence of prescription drugs and/or alcohol, struck the Kelly vehicle in the Kellys' lane of traffic. As a result of the collision, defendant, who was not wearing a seatbelt, struck the steering wheel, causing injury to her unborn fetus. The People's argument at trial was that defendant's reckless conduct not only resulted in the death of the Kellys, but also her six-day-old child…. [T]he jury returned a verdict finding the defendant not guilty on all counts except manslaughter in the second degree for the death of her child.

My guess is that this means the jury found that Jorgensen's driving wasn't reckless (since it acquitted her of manslaughter of the Kellys) and that she wasn't under the influence of alcohol or drugs—but that her driving, coupled with not wearing a seat belt, was reckless.

Here is the court's summary of the legal question:

The issue is strictly one of statutory interpretation. As relevant here, "[a] person is guilty of manslaughter in the second degree when … [h]e [or she] recklessly causes the death of another person" (Penal Law §125.15 [1]). Penal Law §125.05 (1) provides that, when referring to the victim of a homicide, a person is "a human being who has been born and is alive." The question is, did the legislature, through its enactment of the two statutory provisions, intend to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death?

What do you think the right answer is, as a matter of statutory interpretation, or as a matter of first principles? What do you think the New York court decided? To see the majority's and dissent's arguments, check out the opinion, which is written in relatively non-legalese language.