By Charles Wolfe
The Associated Press

FRANKFORT, Ky. - The Kentucky Supreme Court ruled Thursday that a fetus is a person as long as it is "viable" - capable of surviving outside the womb - and its wrongful killing can be prosecuted as a homicide.

The court discarded its long-held rule that a fetus was not a person - and its death not a homicide - until a live birth occurred.

Writing for the majority, Justice William Cooper said medical science had advanced to the point that fetal viability was as provable as birth or stillbirth. "Thus the rationale for the 'born alive' rule no longer exists," Cooper wrote.

The court's action was not unexpected since the General Assembly, prompted by cases of tragic injuries to pregnant women, passed legislation this year to create a crime of "fetal homicide." It was the first bill signed into law by Gov. Ernie Fletcher. The bill exempted legal abortions.

However, because a law cannot be applied retroactively, the court upheld dismissal of a manslaughter charge against the defendant in the case - Christopher Charles Morris of Pike County.

Morris was charged after his pickup truck plowed into a vehicle carrying Veronica Thornsbury, who was in labor, to Pikeville Methodist Hospital. Thornsbury was killed, as was the fetus she was about to deliver, later determined by autopsy to have been a healthy girl.

The new fetal homicide law defines "unborn child" as a member of the human species "from conception onward." But the justices declined to stretch that definition to cover all deaths in the womb.

Chief Justice Joseph E. Lambert joined in the opinion, as did Justices William Graves and Martin Johnstone.

In a separate opinion, Justice James Keller, joined by Justice Janet Stumbo, accused the majority of declaring by "judicial fiat" that "medical advancements have changed the meaning of the word 'person' " in the penal code.

In a third opinion, Justice Donald Wintersheimer said the majority did not go far enough.