The law is written in such a way that it can be interpreted to suit the situation.
http://en.wikipedia.org/wiki/Abortion
Abortion - An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death. This can occur spontaneously as a miscarriage, or be artificially induced through chemical, surgical or other means. Commonly, "abortion" refers to an induced procedure at any point in the pregnancy; medically, it is defined as a miscarriage or induced termination before twenty weeks gestation, which is considered nonviable.
There have been various methods of inducing abortion throughout history. The moral and legal aspects of abortion are the subject of intense debate in many parts of the world.
The incidence of and reasons for induced abortion vary in regions in which abortion is generally permitted. It has been estimated approximately 46 million abortions are performed globally each year. Of these, 26 million are said to occur in places where abortion is legal; the other 20 million happen where it is illegal. Some countries, such as Belgium (11.2 per 100 known pregnancies) and the Netherlands (10.6%), have a low rate of induced abortion, while others like Russia (62.6%) and Vietnam (43.7%)have a comparatively high rate. The world ratio is 26 induced abortions per 100 known pregnancies. [2]
Rates of abortion also vary depending upon the stage of pregnancy and the method practiced. In 2002, from data collected in those areas of the United States which sufficiently reported gestational age, it was found that 86.7% of abortions were conducted at or prior to 12 weeks, 9.9% from 13 to 20 weeks, and 1.4% at or after 21 weeks. 91.3% percent of these were classified as having been done by "curettage" (suction-aspiration, D&C, D&E), 5.2% by "medical" means (mifepristone), 0.8% by "intrauterine instillation" (saline or prostaglandin), and 1.5 % by "other" (hysterotomy and hysterectomy). [3] The Guttmacher Institute estimated that there were 2,200 intact dilation and extraction procedures in the U.S. during 2000 which would account for only 0.17% of the total number of abortions performed that year. [4] Similarly, in England and Wales in 2004, 87.6% of terminations occurred at or under 12 weeks, 10.7% between 13 to 19 weeks, and 1.5% at or over 20 weeks. 76% of those reported were by vacuum aspiration, 4% by D&E, 19% by a chemical agent, and 1% by feticide. A 1998 study aggregated data from studies in 27 countries on the reasons women seek to terminate their pregnancies. It concluded that common factors cited to have influenced the abortion decision were the desire to delay or end childbearing, concern over the interruption of work or education, issues of financial or relationship stability, and perceived immaturity. [6] A 2004 study in which American women at clinics answered a questionnaire yielded similar results. [7] In Finland and the United States, concern for the health risks posed by pregnancy in individual cases was not a factor commonly given; however, in Bangladesh, India, and Kenya health concerns were cited by women more frequently as reasons for having an abortion. [6] 1% of women in the 2004 survey-based U.S. study became pregnant as a result of rape and 0.5% as a result of incest. [7] Another American study in 2002 concluded that 54% of women who had an abortion were using a form of contraception at the time of becoming pregnant while 46% were not. Inconsistent use was reported by 49% of those using condoms and 76% of those using oral contraception; 42% of those using condoms reported failure through slippage or breakage. [8]
Some abortions are undergone as the result of societal pressures. These might include the stigmatization of disabled persons, preference for children of a specific sex, disapproval of single motherhood, insufficient economic support for families, lack of access to or rejection of contraceptive methods, or efforts toward population control (such as China's one-child policy). A combination of these factors can sometimes result in compulsory abortion or sex-selective abortion. In many areas, especially in developing nations or where abortion is illegal, women sometimes resort to "back-alley" or self-induced procedures. The World Health Organization suggests that there are 19 million terminations annually which fit its criteria for an unsafe abortion. [9] See social issues for more information on these subjects.
Health effects
Early-term surgical abortion is a simple procedure. When performed before the 16th week by competent doctors — or, in some states, nurse practitioners, nurse midwives, and physician assistants — it is safer than childbirth. [22]
As with most surgical procedures, the most common surgical abortion methods carry a small risk of potentially serious complications. These risks include: a perforated uterus, perforated bowel or bladder, septic shock, sterility, and death. The risk of complications occurring can increase depending on how far the pregnancy has progressed, but remains less than complications that may occur from carrying the pregnancy to term.
Assessing the risks of induced abortion depend on a number of factors. First, there are relative health risks of induced abortion and pregnancy, which are both affected by wide variation in the quality of health services in different societies and among different socio-economic groups, a lack of uniform definitions of terms, and difficulties in patient follow-up and after-care. The degree of risk is also dependent upon the skill and experience of the practitioner; maternal age, health, and parity; gestational age; pre-existing conditions; methods and instruments used; medications used; the skill and experience of those assisting the practitioner; and the quality of recovery and follow-up care. A highly-skilled practitioner of birth and abortion, operating under ideal conditions, will tend to have a low rate of complications; an inexperienced practitioner in an ill-equipped and ill-staffed facility, on the other hand, will often have a higher incidence of complications that could cause death during pregnancy, birth, or abortion.
In the United Kingdom, the number of deaths due to legal abortion between the years of 1991 and 1993 was 5, as compared to the 9 deaths caused by ectopic pregnancy during the same time frame. [23] In the United States, during the year 1999, there were 4 deaths due to legal abortion, 10 due to miscarriage, and 525 due to pregnancy-related reasons. [24] [25]
Some practitioners advocate using minimal anaesthesia so that the patient can alert them to possible complications. Others recommend general anaesthesia, in order to prevent patient movement, which might cause a perforation. General anaesthesia carries its own risks, including death, which is why public health officials recommend against its routine use.
Dilation of the cervix carries the risk of cervical tears or perforations, including small tears that might not be apparent and might cause cervical incompetence in future pregnancies. Most practitioners recommend using the smallest possible dilators, and using osmotic rather than mechanical dilators after the first trimester of pregnancy.
Instruments are placed within the uterus to remove the fetus. These can, on rare occasions, cause perforation or laceration of the uterus, and damage to structures surrounding the uterus. Laceration or perforation of the uterus or cervix can, again on rare occasions, lead to even more serious complications.
Incomplete emptying of the uterus can cause hemorrhage and infection. Use of ultrasound verification of the location and duration of the pregnancy prior to abortion, with immediate follow-up of patients reporting continuing pregnancy symptoms after the procedure, will virtually eliminate this risk. The sooner a complication is noted and properly treated, the lower the risk of permanent injury or death.
In rare cases, the abortion will be unsuccessful and the pregnancy will continue. An unsuccessful abortion can also result in the delivery of a live neonate, or infant. This, termed a failed abortion, is very rare and can only occur late in the pregnancy. Some doctors faced with this situation have voiced concerns about the ethical and legal ramifications of then letting the neonate die. As a result, recent investigations have been launched in the United Kingdom by the Confidential Enquiry into Maternal and Child Health (CEMACH) and the Royal College of Obstetricians and Gynecologists, in order to determine how widespread the problem is and what an ethical response in the treatment of the infant might be. [26]
Unsafe abortion methods (e.g. use of certain drugs, herbs, or insertion of non-surgical objects into the uterus) are potentially dangerous, carrying a significantly elevated risk for permanent injury or death, as compared to abortions done by physicians
Public opinion
Political sides have largely been divided into absolutes. The abortion debate, as such, tends to center on individuals who hold strong positions. However, public opinion varies from poll to poll, country to country, and region to region:
Australia: In a February 2005 ACNielsen poll, as reported in The Age, 56% thought the current abortion laws, which generally allow abortion for the sake of life or health, were "about right," 16% want changes in law to make abortion "more accessible," and 17% want changes to make it "less accessible." [67] A 1998 poll, conducted by Roy Morgan Research, asked, "Do you approve of the termination of unwanted pregnancies through surgical abortion?" 65% of the Australians polled stated that they approved of surgical abortion and 25% stated that they disapproved of it. [68]
Canada: A recent poll of Canadians, conducted in April 2005 by Gallup, found that 52% of those polled want abortion laws to "remain the same," 20% want the laws to be "less strict," and 24% would prefer that the laws become "more strict." An earlier Gallup poll, from December 2001, asked, "Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances and in what circumstances?" 32% of Canadians responded that they believe abortion should be legal in all circumstance, 52% that it should be legal in certain circumstances, and 14% that it should be legal in no circumstances. Canada currently has no laws restricting abortion. See Abortion in Canada.
Ireland: A 1997 Irish Times/MRBI poll of the Republic of Ireland's electorate found that 18% believe that abortion should never be permitted, 35% that one should be allowed in the event that the woman's life is threatened, 18% if her health is at risk, 28% that "an abortion should be provided to those who need it," and 5% were undecided. [69]
United Kingdom: An online YouGov/Daily Telegraph poll in August 2005 found that 30% of Britons would back a measure to reduce the legal limit for abortion to 20 weeks, 19% support a limit of 12 weeks, 9% support a limit of less than 12 weeks, and 25% support maintaining the current limit of 24 weeks. 6% responded that abortion should never be allowed while 2% said it should be permitted throughout the entirety of pregnancy. [70]
United States: In a January 2006 CBS News poll, which asked, "What is your personal feeling about abortion?", 27% said that abortion should be "permitted in all cases," 15% that it should be "permitted, but subject to greater restrictions than it is now," 33% said that it should be "permitted only in cases such as rape, incest or to save the woman's life," 17% said that it should "only be permitted to save the woman's life," and 5% said that it should "never" be permitted. [71] An April 2006 Harris poll on Roe v. Wade, asked, "Do you favor or oppose the part of Roe v. Wade that made abortions up to three months of pregnancy legal?", to which 49% of respondents indicated favor while 47% indicated opposition. [72] One U.S. Gallup/CNN/USA Today poll conducted in 2003 yielded results very similar to an identical survey conducted in 1975. [73]
Abortion law
Before the scientific discovery that human development began at fertilization, British common law allowed abortions to be performed before quickening, the earliest perception of fetal movement by a woman during the second trimester of pregnancy. In 1861, the British Parliament passed the Offences Against the Person Act, which outlawed abortion throughout the British Empire. The Soviet Union, with legislation in 1920, and Iceland with legislation in 1935 were some of the first countries to generally allow abortion. The second half of the 20th century saw the liberalization of abortion laws in other countries. The Abortion Act 1967 allowed abortion for limited reasons in the United Kingdom. In the 1973 case, Roe v. Wade, the United States Supreme Court struck down state laws banning abortion in the first trimester, ruling that such laws violated an implied right to privacy in the United States Constitution. The Supreme Court of Canada, similarly, in the case of R. v. Morgentaler, discarded its criminal code regarding abortion in 1988, after ruling that such restrictions violated the security of person guaranteed to women under the Canadian Charter of Rights and Freedoms Canada later struck down provincial regulations of abortion in the case of R. v. Morgentaler (1993). Abortion in Ireland, on the other hand has been affected by the addition of an amendment to its Constitution in 1983 by popular referendum, recognizing "the right to life of the unborn".
Current laws pertaining to abortion are diverse. Religious, moral, and cultural sensibilities continue to influence abortion laws throughout the world. The right to life, the right to liberty, and the right to security of person are major issues of human rights that are sometimes used as justification for the existence or the absence of laws controlling abortion. Many countries in which abortion is legal require that certain criteria be met in order for an abortion to be obtained, often, but not always, using a trimester-based system to regulate the window in which abortion is still legal to perform:
In the United States, some states impose a 24-hour waiting period before the procedure, prescribe the distribution of information on fetal development, or require that parents be contacted if their minor daughter requests an abortion.
In the United Kingdom, as in some other countries, two doctors must first certify that an abortion is medically or socially necessary before it can be performed.
Other countries, in which abortion is illegal, will allow one to be performed in the case of rape, incest, or danger to the pregnant woman's life or health. A handful of nations ban abortion entirely, such as Chile, El Salvador, and Malta, although Chilean government freely distributes the "morning-after" pill. In Bangladesh--although abortion is illegal-- the government has long supported a network of "menstrual regulation clinics," where menstrual extraction (manual vacuum aspiration) can be performed as menstrual hygiene. [74
American Law Reports
ALR5th
Volume 64 (1998)
Annotation
HOMICIDE BASED ON KILLING OF UNBORN CHILD
Alan S. Wasserstrom, J.D.
Whether the slayer of an unborn child or fetus can be convicted of a homicide has been the subject of controversy among state and federal courts. While under the common law a conviction was only possible if the child was born alive that is no longer a universal rule under state and federal statutes. Accordingly, convictions may be won where death of the child occurs before birth where the courts consider the child to be viable or a person or human being under the governing statute. For example, in the case of State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 901 (Mo. Ct. App. W.D. 1997), the court held that an unborn child is a "person" for the purposes of the first degree murder statute and the fact that a mother of a pre-born child may have been granted certain legal rights to terminate the pregnancy did not preclude the prosecution of a third party for murder in the case of a killing of a child not consented to by the mother. The court rejected the defendant's argument that his actions in killing the child, accomplished by a savage beating of the mother, should be considered equivalent to conduct under the state's misdemeanor abortion statute. The court, instead, determined that the state legislature never intended to treat the unconsented (by the mother) killing of a pre-born infant, in the context of a physical assault on the mother, as anything other than a murder of the infant. This annotation examines all cases addressing the homicides of unborn children under statutory provisions, but does not consider the myriad cases decided under common law.
[JUMP STRAIGHT TO ARTICLE]
TABLE OF CONTENTS
Article Outline
Research References
- Total Client-Service Library References
- Research Sources
Index
Jurisdictional Table of Cited Statutes and Cases
Article
ARTICLE OUTLINE
I. Preliminary Matters
§ 1. Introduction
[a] Scope
[b] Related annotations
§ 2. Summary and comment
[a] Generally
[b] Practice pointers
II. Conviction under General Homicide Statutes
A. Where Death Occurs before Birth
§ 3. Conviction upheld or supportable
[a] Based on a finding that fetus was viable
[b] Based on finding that fetus is "person" or "human being"
§ 4. Conviction denied
[a] Based on a finding that fetus was not born alive
[b] Despite finding that fetus was viable
[c] Based on finding that fetus is not a "person" or "human being"
[d] Based on application of the felony-murder rule
B. Where Death Occurs after Birth
§ 5. Conviction upheld or supportable
§ 6. Conviction denied
III. Conviction for Vehicular Homicide
§ 7. Conviction upheld
[a] Based on a finding that fetus was born alive
[b] Based on a finding that fetus is "person" or "human being"
§ 8. Conviction denied
IV. Conviction under Feticide Statute
A. View Requiring Intent to Kill or Cause Great Bodily Harm to Mother or Unborn
Child
§ 9. Intent established
§ 10. Intent not established
[a] Based on failure to establish actual knowledge of pregnancy
[b] Based on other circumstances
B. Views Regarding Requirement that Fetus be Viable
§ 11. Viability requirement adopted
§ 12. Viability requirement rejected
C. Challenges to Validity or Application of Feticide Statutes
§ 13. Vagueness
§ 14. Equal protection
§ 15. Claim that statute applied to consensual abortion
V. Conviction under Statutes Establishing Criminal Penalty for Abortion
§ 16. Constitutionality of Statutes
[a] Where penalty applies only to abortion of viable fetus
[b] Where penalty applies without distinguishing based on viability of fetus
§ 17. Applicability of statutes
INDEX
Abortion, conviction under statutes establishing criminal penalty for, § § 16, 17
Abortion, feticide statute as applying to consensual abortion, § 15
Alcohol, driving while intoxicated or under influence of, § § 3[a], 4 [c], 7, 8
Ambiguity in criminal statutes, § 8
Another, intent to injure, § § 5, 9
Anoxia, hypoxia, or oxygen deprivation, § § 3[a], 4[c], 5, 8, 9, 13
Applicability of statutes, § § 15, 17
Automobile accidents, § § 3, 4[c], 7, 8
Below average weight, § 11
Blood supply to fetus, § § 8, 12
"Born alive" rule, § § 3, 4[a, c], 5, 6, 8, 17
Boyfriend, beating by, § 4[c]
Brain activity, § § 3[a], 7[a], 16[a]
Brain hemorrhage, § 7[b]
Breathing disorder resulting from premature delivery, § 5
Breathing on own, § § 5, 6, 7[a], 8, 9
Burden of proof as to viability, § 16[a]
Caesarean section, § § 3[a], 4[c], 5, 7, 8, 15
Causation, difficulty of proving, § 7[b]
"Causes the death of an unborn child," vagueness, § 13
Challenges to validity of feticide statutes, § § 13, 14
Choking or strangulation of mother, § § 3[b], 9
Chopping wounds to fetus, § 9
Civil damages, § 4[c]
Club, assault with, § 9
Cocaine, choking of wife after argument about defendant's use of, § 9
Comment and summary, § 2
Consensual abortion, feticide statute as applying to, § 15
Consent of mother, absence of, § § 3[b], 12-14
Constitutionality of statutes, § § 13-16
Contusion, uterine, § 8
Crushed head, § 6
Due process, § § 4[c], 13
Eight and one half months pregnant, § § 4[c], 7[b], 8
Eight months pregnant, § § 4[a], 7[a], 9
Eighty-five percent likelihood of survival outside womb, § 9
Equal protection, § 14
Felony-murder, § § 4[d], 5, 7[a]
Feticide statute, § § 9-15
Firearms, § § 4[a, c], 5, 9, 12, 13, 17
Fist, striking or beating with, § § 4[a, c]
Former husband, killing by, § 9
Former husband, rape and assault by, § § 12, 13
Fourteenth Amendment, § § 4[c], 12, 13
Fractured clavicle, fetus, § 7[a]
Fractures, mother, § 8
Full-term fetus or nine months pregnant, § § 3[a], 8, 9, 11, 15
General homicide statutes, conviction under, § § 3-6
Hand forced up vagina, § 4[c]
Hasten delivery, acts of brutality to, § 6
Hatchet, killing woman with, § 8
Heartbeat, § § 3[a], 4[c], 7[a], 8, 16[a]
Hemorrhage, § § 7, 8, 15
Hemorrhage, placental, § § 8, 9, 14
"Human being," fetus as, § § 3[b], 4[c], 7[b], 8
Husband, assault or killing by, § § 3[a], 4[c, d], 5, 9, 15
Husband, former, killing by, § 9
Husband, former, rape and assault by, § § 12, 13
Husband killing wife by hired accomplice, § 9
Hypoxia, anoxia, or oxygen deprivation, § § 3[a], 4[c], 5, 8, 9, 13
Intent, § § 9, 10, 17
Intercranial hemorrhage, § 8
Internal hemorrhaging, § 7[a]
Intoxicated or under influence, driving while, § § 3[a], 4[c], 7, 8
Introduction to annotation, § 1
Kicks to abdomen, § § 3[b], 9, 10[a], 14
Knife, attack with, § 3[a]
Knowledge of pregnancy, § § 9, 10[a], 12-14
Labor, mother in, § § 8, 11
Lesser included offense of murder, feticide as, § 11
Machete, attack with, § 9
Medical help, refusal to allow wife to seek, § 15
Ministerial career, freedom to pursue, § 9
Mother, killing of unborn quick child by, § 17
Motivation for murder, pregnancy as, § 9
Movement, § § 5, 13, 16[a]
Nine months pregnant or full term fetus, § § 3[a], 8, 9, 11, 15
Ninety to ninety-five percent likelihood of survival outside womb, § 8
One-and-one-half pounds, fetus weighing, § 8
Oxygen deprivation, § § 3[a], 4[c], 5, 8, 9, 13
Passerby, mother as, § 5
Pedestrian struck by motor vehicle, § 7[b]
Permission to get medical help, denial of, § § 3[b], 15
"Person," fetus as, § § 3[b], 4[c], 7[b], 8
Physician, application of feticide statute to, § 15
Placenta, detaching, § § 3, 8, 15
Placenta, tearing of, § 8
Placental hemorrhage, § § 8, 9, 14
Practice pointers, § 2[b]
Preliminary matters, § § 1, 2
Presumptions as to viability, § 16[a]
Previous miscarriage experienced by mother, § 11
Prospective application of ruling, § 3[a]
Punching, § § 12, 13, 15
"Quick," fetus as, § 13
Rape by former husband, § § 12, 13
Reckless killing of unborn viable fetus, § § 4[c], 8
Related annotations, § 1[b]
Robbery, § § 4[b], 12
Roe v Wade, § § 4[c], 8, 9, 12-16[a]
Scope of annotation, § 1[a]
Scuffle, miscarriage occurring within week of, § 10[b]
Seat belt injuries, § 7[b]
Seven and one half months pregnant, § 7[b]
Seven months pregnant, § § 8, 10[a]
Seven or eight months pregnant, § § 5, 9
Seven pounds, fetus weighing, § 8
Severing head prior to delivery, § 17
Shooting, § § 4[a, c], 5, 9, 12, 13, 17
Six months pregnant, § § 4[c], 7[b], 12
Sixteen weeks pregnant, § 13
Slander per se, § 5
Stepfather, kick in abdomen by, § § 9, 14
Stick, striking with, § § 4[a, c], 10[b]
Stop sign, failure to stop for, § 7[a]
Strangulation or choking of mother, § § 3[b], 9
Strict construction of penal statutes, § 8
Suicide, murder intended to appear as, § 9
Summary and comment, § 2
Thirty-five and one half weeks pregnant, § 8
Thirty-five weeks pregnant, § 7[a]
Thirty-four to thirty-five weeks pregnant, § 4[c]
Thirty-seven weeks pregnant, § 4[b]
Thirty-six to thirty-eight weeks pregnant, § 8
Thirty-two weeks pregnant, § 7[a]
Thirty weeks pregnant, § 8
Transferred intent, § § 4[d], 9
Twenty-eight to thirty-two weeks pregnant, § 5
Twenty-eight to thirty weeks pregnant, § § 4[c], 9
Twenty-five percent likelihood of survival outside womb, § 8
Twenty-five weeks pregnant, § 8
Twenty-seven or twenty-eight days pregnant, § § 12, 13
Twenty-six weeks pregnant, § 8
Twenty-three to twenty-five weeks pregnant, § 12
Twenty-two to twenty-four weeks pregnant, § 12
Uniform Anatomical Gift Act, § 4[c]
Uterine contusion, § 8
Vagina, hand forced up, § 4[c]
Vagueness, § § 7[b], 13, 16[a]
Validity of feticide statutes, § § 13, 14
Vehicular homicide, § § 4[c], 7, 8
Viable, fetus as, § § 3[a], 4[b, c], 7[b], 8, 9, 11-13, 16
Voluntary manslaughter of mother, felony-murder rule, § 4[d]
Weight of fetus, less than average, § 11
Woman, killing of unborn quick child by, § 17
Wrongful death statute, § § 4[c], 8
JURISDICTIONAL TABLE OF CITED STATUTES AND CASES
UNITED STATES
Doe v. Deschamps, 461 F. Supp. 682--§ 16[a]
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788--§ 16[a, b]
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147--§§ 2[a], 16
Smith v. Newsome, 815 F.2d 1386--§§ 13, 14
U S v. Wiltberger, 18 U.S. 76, 5 L. Ed. 37--§ 4[c]
Wynn v. Scott, 449 F. Supp. 1302--§ 16[a]
ALABAMA
Ala. Crim. Code § 4680. See § 5
Clarke v. State, 117 Ala. 1, 23 So. 671--§ 5
ARIZONA
Ariz. Rev. Stat. Ann. § 13-1103(A)(5). See § 4[c]
Ariz. Rev. Stat. Ann. § 36-327. See § 4[c]
Vo v. Superior Court In and For County of Maricopa, 172 Ariz. 195, 836 P.2d 408--§ 4[c]
ARKANSAS
Ark. Stat. Ann. § 41-1504(1)(c). See § 4[c]
Ark. Stat. Ann. § 41-1504(1)(c) (Repl.1977). See § 8
Meadows v. State, 291 Ark. 105, 722 S.W.2d 584--§§ 4[c], 8
CALIFORNIA
Cal. Penal Code § 187. See §§ 4[c], 13
Cal. Penal Code § 187(a). See §§ 4[c, d], 12
Cal. Penal Code § 189. See § 4[d]
Cal. Penal Code § 192. See § 4[d]
Cal. Stats. ch. 1311 § 1 P 2440. See § 4[c]
Cal.Penal Code § 187. See § 9
Keeler v. Superior Court, 2 Cal. 3d 619, 87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420--§ 4[c]
People v. Apodaca, 76 Cal. App. 3d 479, 142 Cal. Rptr. 830--§§ 12, 13
People v. Bunyard, 45 Cal. 3d 1189, 249 Cal. Rptr. 71, 756 P.2d 795--§§ 9, 12
People v. Carlson, 37 Cal. App. 3d 349, 112 Cal. Rptr. 321--§ 4[d]
People v. Davis, 19 Cal. Rptr. 2d 96--§§ 4[c], 9, 12
People v. Dennis, 17 Cal. 4th 468, 71 Cal. Rptr. 2d 680, 950 P.2d 1035--§§ 9, 12
People v. Hamilton, 48 Cal. 3d 1142, 259 Cal. Rptr. 701, 774 P.2d 730--§ 12
People v. Henderson, 225 Cal. App. 3d 1129, 275 Cal. Rptr. 837--§ 13
People v. Smith, 188 Cal. App. 3d 1495, 234 Cal. Rptr. 142--§§ 2[b], 9
COLORADO
Williams v. People, 114 Colo. 207, 158 P.2d 447, 159 A.L.R. 509--§ 2[b]
CONNECTICUT
Conn. Gen. Stat. § 53-29. See § 4[c]
Conn. Gen. Stat. § 53a-3(1). See § 4[c]
Conn. Gen. Stat. § 53a-54a(a). See § 4[c]
State v. Anonymous (1986-1), 40 Conn. Supp. 498, 516 A.2d 156--§ 4[c]
FLORIDA
Fla. Stat. Ann. §§ 316.1931, 782.071. See § 8
State v. Ashley, 701 So. 2d 338--§ 4[b]
State v. McCall, 458 So. 2d 875--§ 8
Williams v. State, 34 Fla. 217, 15 So. 760--§ 9
GEORGIA
Ga. Code Ann. § 26-1002. See §§ 4[c], 10[b]
Ga. Code Ann. § 26-1103. See § 10[b]
Ga. Code Ann. § 40-6-395(a). See § 8
Ga. Code Ann. §§ 40-6-271, 40-6-390, 40-6-391. See § 8
O.C.G.A. § 16-5-80. See § 13
O.C.G.A. § 40-6-393(b). See § 7[a]
O.C.G.A. §§ 16-5-80, 16-12-140. See §§ 13, 14
Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451--§ 8
Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49--§§ 13, 14
Passley v. State, 194 Ga. 327, 21 S.E.2d 230--§§ 4[c], 10[b]
Ranger v. State, 249 Ga. 315, 290 S.E.2d 63--§ 5
State v. Hammett, 192 Ga. App. 224, 384 S.E.2d 220--§ 7[a]
ILLINOIS
Ill. Ann. Stat. ch. 38 P 9-1.2. See § 14
Ill. Pub. Act 84-1414 § 2. See § 9
Ill. Pub. Act 85-293 Art. II § 21. See § 9
Ill. Rev. Stat. § 9-1.1. See § 9
Ill. Rev. Stat. § 82-303. See § 4[c]
Ill. Rev. Stat. ch. 38 §§ 81-21 et seq. See § 16[a]
Ill. Rev. Stat. ch. 38 P 9-1. See § 9
Ill. Rev. Stat. ch. 38 P 9-1(a). See § 4[c]
Ill. Rev. Stat. ch. 38 P 9-1.1. See § 9
Ill. Rev. Stat. ch. 38 P 9-1.1(b). See § 4[c]
Ill. Rev. Stat. ch. 38 P 9-1.2. See § 9
Ill. Rev. Stat. ch. 38 P 81-21. See § 11
Ill. Rev. Stat. ch. 38 P 91.1. See § 9
Ill. Rev. Stat. ch. 38, P 9-1.2(b)(1). See § 4[c]
Ill. Rev. Stat.1981, ch. 38 P 9-1.1(a)(4). See § 9
Ill. Stat. Ann. ch. 38 P 9-3. See § 7[a]
People v. Bolar, 109 Ill. App. 3d 384, 64 Ill. Dec. 919, 440 N.E.2d 639--§ 7[a]
People v. Ford, 221 Ill. App. 3d 354, 163 Ill. Dec. 766, 581 N.E.2d 1189--§§ 4[c], 9, 14
People v. Gillespie, 276 Ill. App. 3d 495, 213 Ill. Dec. 382, 659 N.E.2d 12--§ 10[a]
People v. Greer, 79 Ill. 2d 103, 37 Ill. Dec. 313, 402 N.E.2d 203--§ 4[c]
People v. Kuchan, 219 Ill. App. 3d 739, 162 Ill. Dec. 240, 579 N.E.2d 1054--§ 9
People v. Shum, 117 Ill. 2d 317, 111 Ill. Dec. 546, 512 N.E.2d 1183--§§ 2 [b], 9, 11
IOWA
Abrams v. Foshee, 3 Iowa 274, 3 Clarke 274--§§ 2[a], 5
State v. Winthrop, 43 Iowa 519--§ 2[a]
KANSAS
Kan. Stat. Ann. § 21-3405a. See § 8
Kan. Stat. Ann. § 65-2401(2). See § 4[c]
State v. Green, 245 Kan. 398, 781 P.2d 678--§ 4[c]
State v. Trudell, 243 Kan. 29, 755 P.2d 511--§ 8
KENTUCKY
Ky. Rev. Stat. Ann. § 507.020. See § 4[c]
Ky. Rev. Stat. Ann. § 507.040. See § 7[a]
Hollis v. Com., 652 S.W.2d 61--§§ 2[a], 4[c]
Jones v. Com., 830 S.W.2d 877--§§ 4[c], 7[a]
LOUISIANA
La. Rev. Stat. § 14:30.1. See § 4[a]
La. Rev. Stat. Ann. § 14:30A(3). See § 4[c]
La. Rev. Stat. Ann. §§ 14:32-5, 14:32.8. See § 9
State v. Gyles, 313 So. 2d 799--§ 4[a]
State v. Keller, 592 So. 2d 1365--§§ 4[c], 9
MASSACHUSETTS
Mass. Gen. Laws Ann. ch. 90 § 24G(b). See § 7[b]
Com. v. Cass, 392 Mass. 799, 467 N.E.2d 1324--§ 7[b]
MICHIGAN
Mich. Comp. Laws Ann. § 750.322. See § 16[a]
Mich. Comp. Laws Ann. § 750.323. See § 16[a]
Mich. Comp. Laws Ann. § 750.324. See § 8
Mich. Stat. Ann. § 28.544. See § 16[a]
Mich. Stat. Ann. § 28.555. See § 16[a]
Larkin v. Cahalan, 389 Mich. 533, 208 N.W.2d 176--§§ 2[b], 16[a]
People v. Guthrie, 97 Mich. App. 226, 293 N.W.2d 775--§ 8
MINNESOTA
Minn. Code Ann. §§ 609.2661(1), 609.2662(1). See § 12
Minn. Stat. Ann. § 609.21. See § 8
Minn. Stat. Ann. §§ 609.2661, 609.2662. See § 13
State v. Merrill, 450 N.W.2d 318--§§ 12-14
State v. Soto, 378 N.W.2d 625--§ 8
MISSISSIPPI
State v. Prude, 76 Miss. 543, 24 So. 871--§ 17
MISSOURI
Mo. Ann. Stat. § 1.205. See § 7[b]
Mo. Ann. Stat. § 565.024. See § 7[b]
Mo. Rev. Stat. § 1.205. See § 3[b]
Mo. Rev. Stat. § 188.035(1). See § 16[b]
Mo. Stat. Ann. § 559.090. See § 10[b]
State v. Harness, 280 S.W.2d 11--§ 10[b]
State v. Holcomb, 956 S.W.2d 286, 64 A.L.R.5th 901--§ 3[b]
State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 901--§§ 3[b], 4[c]
State v. Knapp, 1991 WL 254275--§ 4[b, c]
State v. Knapp, 843 S.W.2d 345--§ 7[b]
State v. Sonner, 253 Mo. 440, 161 S.W. 723--§ 17
MONTANA
Mont. Code. Ann. §§ 94-5-615(5), 94-5-617(1). See § 16[a]
NEW JERSEY
N.J. Stat. Ann. § 2C:11-2. See § 8
N.J. Stat. Ann. § 2C:11-5. See § 8
State in Interest of A. W. S., 182 N.J. Super. 334, 440 A.2d 1174--§ 8
NEW MEXICO
N.M. Stat. Ann. § 66-8-101. See § 8
State v. Willis, 98 N.M. 771, 652 P.2d 1222--§ 8
NEW YORK
N.Y. Penal Code § 125.00. See § 4[c]
N.Y. Penal Code § 125.05(1). See §§ 4[c], 17
N.Y. Penal Code § 125.05(2). See § 17
N.Y. Penal Law § 125.05(1). See §§ 5, 8
N.Y. Penal Law § 125.12. See § 8
Gilpin v. Gilpin, 197 Misc. 319, 94 N.Y.S.2d 706--§ 1[a]
People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879--§§ 2[b], 5, 17
People v. Joseph, 130 Misc. 2d 377, 496 N.Y.S.2d 328--§ 4[c]
People v. Vercelletto, 135 Misc. 2d 40, 514 N.Y.S.2d 177--§ 8
NORTH CAROLINA
N.C. Gen. Stat. § 14-17. See § 4[a]
State v. Beale, 324 N.C. 87, 376 S.E.2d 1--§ 4[a]
OHIO
Ohio Rev. Code Ann. § 2901.01. See § 3[b]
Ohio Rev. Code Ann. § 2903.04(A). See § 3[b]
Ohio Rev. Code Ann. § 4511.181. See § 8
State v. Coleman, 1997 WL 798300--§ 3[b]
State v. Dickinson, 23 Ohio App. 2d 259, 52 Ohio Op. 2d 414, 263 N.E.2d 253--§ 8
OKLAHOMA
Okla. Stat. tit. 21 § 691. See § 3[a]
Hughes v. State, 868 P.2d 730--§§ 2[b], 3[a, b]
RHODE ISLAND
R.I. Gen. Laws § 31-27-1. See § 8
State v. Amaro, 448 A.2d 1257--§ 8
SOUTH CAROLINA
S.C. Code, § 16-3-10 (1976). See § 3[a]
State v. Horne, 282 S.C. 444, 319 S.E.2d 703--§ 3[a]
TENNESSEE
Tenn. Code Ann. § 39-2-231. See § 8
Thompson's-Shannon's Code § 6438. See § 5
Morgan v. State, 148 Tenn. 417, 256 S.W. 433--§§ 5, 6, 8
State v. Evans, 745 S.W.2d 880--§ 8
TEXAS
Tex. Penal Code § 49.08. See § 7[a, b]
Cuellar v. State, 957 S.W.2d 134--§§ 3[b], 7[a, b]
UTAH
Utah Code Ann. § 76-5-207. See § 8
State v. Larsen, 578 P.2d 1280--§ 8
WEST VIRGINIA
W.Va. Code § 61-2-1. See § 4[b]
State ex rel. Atkinson v. Wilson, 175 W. Va. 352, 332 S.E.2d 807--§ 4[b]
WISCONSIN
Wis. Stat. § 940.04(2)(a). See § 15
State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132--§ 15
--------------------------------------------------------------------------------
ARTICLE
I. Preliminary Matters
§ 1. Introduction
[a] Scope
This annotation [FN1] collects and discusses homicide [FN2] of unborn child cases. [FN3] Since the annotation is confined to those cases wherein courts have considered the question under express statutory language, no attempt has been made to collect the numerous cases in which the courts have recognized the common-law view.
[FN1]. This annotation supersedes the one at 40 ALR3d 444.
[FN2]. The word "homicide" is a generic term, and, for the purposes of this annotation, homicide includes murder, manslaughter, and any other crime involving unlawful killing.
[FN3]. For treatment of infanticide see the annotation at 159 ALR 523. Feticide is the destruction of the life of a fetus. Infanticide is the felonious taking of the life of a newborn child. Gilpin v. Gilpin, 197 Misc. 319, 94 N.Y.S.2d 706 (Dom. Rel. Ct. 1950).
Readers are cautioned that any constitutional provisions, legislative enactments, or court rules bearing directly upon this subject are discussed herein, and included in the Jurisdictional table of Cited Statutes and Cases, only to the extent that they are reflected in the reported cases within the scope of this annotation. The reader is, thus, advised to consult the appropriate constitutional, statutory, or court rule compilation.
[b] Related annotations
Right of child to action against mother for infliction of prenatal injuries. 78 ALR4th 1082.
Workers' compensation act as precluding tort action for injury to or death of employee's unborn child. 55 ALR4th 792.
Homicide: sufficiency of evidence of mother's neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide. 40 ALR4th 724.
Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women. 20 ALR4th 1166.
Unborn child as insured or injured person within meaning of insurance policy. 15 ALR4th 548.
Competency of one spouse to testify against other in prosecution for offense against child of both or either. 93 ALR3d 1018.
Liability for child's personal injuries or death resulting from tort committed against child's mother before child was conceived. 91 ALR3d 316.
Right to maintain action or to recover damages for death of unborn child. 84 ALR3d 411.
Proof of live birth in prosecution for killing newborn child. 65 ALR3d 413.
What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine. 50 ALR3d 397.
Homicide predicated on improper treatment of disease or injury. 45 ALR3d 114.
Liability for prenatal injuries. 40 ALR3d 1222.
Pregnancy as element of abortion or homicide based thereon. 46 ALR2d 1393.
Necessity, to warrant conviction of abortion, that fetus be living at time of commission of acts. 16 ALR2d 949.
§ 2. Summary and comment
[a] Generally
At common law and in the absence of statute, it is the rule that if a child dies before birth there is no crime but if the child is born alive and thereafter dies from the defendant's felonious act the culpability is the same as that incurred in the killing of any other human being. The essential element is the independent existence of the infant. [FN4]
[FN4]. 40 Am Jurisprudence 2d, Homicide § 9.
The common law further made a distinction between fetal life before and after the period of "quickening," which was generally held to occur between the sixth and eighth week of pregnancy. The legal consequence of this distinction was that causing the death of an unborn child after quickening was regarded as "a great misprision," that is, a misdemeanor, and not homicide, and that causing a miscarriage before quickening was not a punishable offense. [FN5]
[FN5]. See Abrams v. Foshee, 3 Iowa 274, 3 Clarke 274 (1856), stating that there was no crime of abortion at common law.
The common-law view became established during the Fourteenth Century, following a change from the ancient law, which had held that one who procured an abortion by any means was guilty of murder if there was a living fetus in utero. [FN6] Among the reasons given for the common-law rule was the difficulty of determining the cause of death of the infant. It was thought to be impossible to know whether the child was capable of maintaining its existence apart from the mother's body until that fact was actually demonstrated by the independent functioning of its own circulatory and respiratory systems. Hence, the court said in the contemplation of the law that a child who had not yet breathed with its own lungs, though born alive, must still be dependent upon its mother for life, and, in this sense, its condition was still exactly like that of the fetus in utero. [FN7]
[FN6]. Winfield, The Unborn Child, 8 Camb LJ 76 (1944), traces the development of the English law.
[FN7]. State v. Winthrop, 43 Iowa 519 (1876).
In the landmark case of Roe v Wade [FN8] the United States Supreme Court held that Texas criminal abortion statutes prohibiting abortions at any stage of pregnancy except to save the life of the mother are unconstitutional; that prior to approximately the end of the first trimester the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Subsequent to approximately the end of the first trimester the state may regulate abortion procedure in ways reasonably related to maternal health, and at the stage subsequent to viability the state may regulate, and even proscribe, abortion except where necessary in appropriate medical judgment for the preservation of the life or health of the mother. In interpreting this decision courts have adopted the view that Roe allowed the state to regulate abortion in the second trimester, but that it would be absurd to construe a homicide statute as a vehicle to accomplish abortion regulation. [FN9] The court also determined that with respect to the state's important and legitimate interest in potential life, the "compelling" point is at viability. According to the court, this is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. state regulation protective of fetal life after viability thus has both logical and biological justifications. If the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
[FN8]. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), for concurring opinion, see, 410 U.S. 179, 93 S. Ct. 755, 35 L. Ed. 2d 147 (1973) and for concurring opinion, see, 410 U.S. 179, 93 S. Ct. 756, 35 L. Ed. 2d 147 (1973) and for dissenting opinion, see, 410 U.S. 179, 93 S. Ct. 762, 35 L. Ed. 2d 147 (1973) and reh'g denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973).
[FN9]. See, for example, Hollis v. Com., 652 S.W.2d 61 (Ky. 1983).
With Roe in mind a conviction under the general homicide statutes where death of the fetus occurred before its birth has been upheld when the fetus was viable ( § 3[a]). In other jurisdictions the courts have held that a conviction under the general homicide statutes would be upheld on finding that the fetus was a "person" or "human being" under the terms of the statute ( § 3[b]). Conversely, conviction has been denied where the fetus was born alive ( § 4[a]). A conviction has also been denied in a case where the fetus was viable ( § 4[b]). In a number of jurisdictions convictions were denied where the fetuses were not found to be either "persons" or "human beings" ( § 4[c]).
An attempt to garner a conviction by use of the felony-murder doctrine was rejected where the act that resulted in the death of the fetus was the same act on which the court had based its finding of the defendant's guilt of voluntary manslaughter of the mother, and where it had determined that killing of the mother was without malice ( § 4[d]).
In cases where the death of the fetus occurred after birth, convictions were generally upheld or supportable where the fetus was born alive ( § 5), and denied where the fetus was not born alive ( § 6). In cases arising under vehicular-homicide statutes, convictions for the killing of a fetus were upheld where the fetus was born alive ( § 7[a]), or where the fetus was found to be a "person" or a "human being" under the particular statute ( § 7[b]). Conversely, convictions were denied under such statutes were the fetuses in question were found not to be "persons" or "human beings" under the terms of the particular statutes ( § 8). In a number of jurisdictions the legislatures have enacted specific feticide statutes. In order to procure a conviction some statutes hold that there must have been an intent to kill or to do great bodily harm to the mother. In various cases the intent has been established ( § 9), while in other instances the intent was not shown based on a failure to show actual knowledge of the pregnancy ( § 10[a]), or based upon other circumstances of the particular case ( § 10[b]). Under some feticide statutes, in line with the decision in Roe a viability-for-conviction requirement has been established, and also has been shown ( § 11). On the other hand, under other feticide statutes, a viability requirement has been rejected by the courts ( § 12).
Feticide statutes have been constitutionally challenged as to their validity in a number of cases. The grounds for attack have included vagueness ( § 13), and violation of equal protection ( § 14). All such challenges have failed ( § 13, § 14). Moreover, a claim that a feticide statute applied to consensual abortion was rejected by the court ( § 15).
In a number of cases, courts have held that state manslaughter by abortion statutes construed as imposing a penalty only for the abortion of a viable fetus were constitutional ( § 16[a]). It has also been held that the application of a penalty under an abortion statute without distinguishing based on viability rendered the statutory provision invalid ( § 16[b]). Courts in a number of cases determined that various criminal abortion statutes did not apply to the homicide of an unborn child ( § 17).
[b] Practice pointers
As in most criminal law cases, counsel for the parties in a case involving the death of an unborn child or fetus should carefully examine the penal statutes of the jurisdiction. Although these statutes may be similar from state to state, there may also be important differences concerning the elements of the crime of homicide of an unborn child. The basic questions counsel must ask are: Do any of the state statutes expressly define "homicide" (murder or manslaughter) as to include the killing of an unborn child, or do they merely codify the common-law rule? [FN10] Does the state have a feticide statute, and, if so, does it require that the fetus be "viable" at the time the injuries that caused its death were inflicted? [FN11] Moreover, is an intent to kill the mother an element necessary for a conviction? [FN12]
[FN10]. See, for example, Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994).
[FN11]. See, for example, People v. Shum, 117 Ill. 2d 317, 111 Ill. Dec. 546, 512 N.E.2d 1183 (1987), cert. denied, 484 U.S. 1079, 108 S. Ct. 1060, 98 L. Ed. 2d 1022 (1988), reh'g denied, 485 U.S. 1015, 108 S. Ct. 1492, 99 L. Ed. 2d 719 (1988).
[FN12]. See, for example, People v. Smith, 188 Cal. App. 3d 1495, 234 Cal. Rptr. 142 (5th Dist. 1987), review denied, (Apr. 16, 1987) and cert. denied, 484 U.S. 866, 108 S. Ct. 188, 98 L. Ed. 2d 140 (1987) (abrogated by, People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994)). See § 12 for a discussion of Smith.
In states that adhere to the common-law rule that one may not be convicted of homicide unless the child was born alive, the prosecution often has a difficult burden of proving beyond a reasonable doubt that the child was born alive. Even if it is shown that a child was born, it may be difficult, depending on the facts and circumstances, to draw the line between a child born alive and a child that died either before or during the process of birth. [FN13] By dint of Roe v. Wade (see § 2[a]), a court is compelled to rule that as a matter of federal constitutional law, that a fetus is conclusively presumed not to be viable within the first trimester of pregnancy, but beyond that point, the burden is, of course, upon the People in a prosecution for manslaughter by abortion to prove beyond a reasonable doubt that the subject of the manslaughter was in fact a viable child en ventre sa mere. [FN14] Counsel should also be aware that the presence of abortion statutes generally are inapplicable to homicides of unborn children. [FN15]
[FN13]. See Williams v. People, 114 Colo. 207, 158 P.2d 447, 159 A.L.R. 509 (1945).
[FN14]. See, for example, Larkin v. Cahalan, 389 Mich. 533, 208 N.W.2d 176 (1973).
[FN15]. See, for example, People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1st Dep't 1990), on reconsideration, appeal denied, 76 N.Y.2d 1021, 565 N.Y.S.2d 771, 566 N.E.2d 1176 (1990).
II. Conviction under General Homicide Statutes
A. Where Death Occurs before Birth
§ 3. Conviction upheld or supportable
[a] Based on a finding that fetus was viable
In the following cases the courts held that a conviction for the murder of a fetus could be upheld based on a finding that the fetus was viable.
In the case of Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994), the court held that the common-law, "born alive" rule was abandoned so that whether it is ultimately born alive, an unborn fetus that was viable at time of an injury was a human being who may be the subject of a homicide under Okla. Stat. tit. 21 § 691 (1981). The appellant, a motorist, while intoxicated, drove her vehicle into oncoming traffic and collided with another vehicle. The driver of the other vehicle was 9 months' pregnant and expected to deliver in 4 days. The collision caused the victim's stomach to hit the steering wheel of her car with such force that the steering wheel broke. The victim was taken to a hospital where an emergency cesarean section was performed. When the baby was delivered, the only sign of life was an extremely slow heartbeat. A pediatrician immediately began resuscitation efforts, which were unsuccessful. The court determined that the baby was not born alive despite the heartbeat as it was brain dead. In rejecting the rule the court opined that advances in medical and scientific knowledge and technology have abolished the need for the "born-alive" rule. Specifically, the court found that the medical and scientific evidence before it established that the child within the victim's womb was a living, viable fetus at the time of the collision and that this child died as a result of the placental abruption which occurred when the victim's stomach hit and broke the steering wheel of her car. The court further explained that the infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. The court further opined that if a person were to commit violence against a pregnant woman and destroy the fetus within her it would not want the death of the fetus to go unpunished. The court then stated that it believed that its criminal law should extend its protection to viable fetuses. Further stating that its ruling would only apply prospectively, the court dismissed the defendant's manslaughter conviction.
In applying the general murder statute, S.C. Code, § 16-3-10 (1976) to the death of a fetus, the court in State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), ruled that an action for homicide may be maintained in the future when the state can prove beyond a reasonable doubt that the fetus involved was viable, that is, able to live separate and apart from its mother without the aid of artificial support. The appellant attacked his wife who had passed the ninth month of her pregnancy, with a knife, wounding her in the neck, arms, and abdomen. After the attack, the wife was rushed to the hospital emergency room where doctors, after determining the unborn child was still alive, performed a caesarian section to save the child's life. The child was dead when removed from the mother's womb. A subsequent autopsy revealed the child died in the womb as a result of suffocation caused by the mother's loss of blood. The mother survived. The autopsy report also indicated the child experienced normal development, and had reached the point where it was capable of separate and independent existence apart from the mother. The court noted that it had already determined to impose civil liability for the wrongful death of a fetus and it would, thus, be grossly unfair not to impose criminal liability. In announcing its recognition of the crime of feticide the court opined that it was upholding its duty and its right to develop the state's common law in order to better serve a changing society. The conviction herein was reversed because the rule was not applied retroactively.
[b] Based on finding that fetus is "person" or "human being"
In the following cases a conviction under the general homicide statutes were upheld where there was a finding that a fetus was a "person or a "human being."
The fact that a mother of a pre-born child may have been granted certain legal rights to terminate the pregnancy does not preclude the prosecution of a third party for murder in the case of a killing of a child not consented to by the mother; thus person who forcibly aborts a fetus against the will of the woman by physically restraining or assaulting the woman may be prosecuted for the murder of the unborn child, even if the mother is not otherwise injured, and such a prosecution is not arbitrary, capricious, or discriminatory, in violation of due process. U.S.C.A. Const. Amend. 14; V.A.M.S. §§ 1.205, 188.010-188.085, 565.020, subd. 1. State v. Holcomb, 956 S.W.2d 286, 64 A.L.R.5th 901 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (51077)(Oct. 28, 1997) and transfer denied, (Dec. 23, 1997)
In the case of State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 901 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (51077)(Oct. 28, 1997) and transfer denied, (Dec. 23, 1997), the court held that an unborn child is a "person" for the purposes of the first-degree-murder statute and the fact that a mother of a preborn child may have been granted certain legal rights to terminate the pregnancy does not preclude the prosecution of a third party for murder in the case of a killing of a child not consented to by the mother. The defendant discussed the murders with an acquaintance. The defendant was unaware that the acquaintance, a convicted felon, was an informant for the Federal Bureau of Investigation, and was wearing a wire during these conversations. The defendant graphically described the savage beating he inflicted upon the victim, telling the acquaintance that he had been planning to kill the victim for about 8 months. He said that he felt no remorse. The defendant described the victim in unflattering terms. Laughing, he told the acquaintance that he punched her in the eye about five times and that he buried the cord he used to strangle her. The court determined that the unborn-child statute [FN16] applied to the general murder statute in that they were passed at the same legislative session. The court also rejected the defendant's argument that his actions were the same as an abortion reasoning that his actions were not the kind of actions ordinarily considered to be the performance of an abortion and the mother did not consent to the actions. Moreover, the defendant failed to show that the state applied the misdemeanor abortion statutes to individuals alleged to have forcibly aborted a preborn infant against the will of the mother. Nor had he shown that the state would not, or could not in fact, bring a murder charge against an individual accused of such an act. The defendant, the court opined, has not shown that the legislature ever intended, in the statutes regulating abortion, to treat the unconsented (by the mother) killing of a preborn infant, in the context of a physical assault on the mother, as anything other than a murder of the infant.
[FN16]. Mo. Rev. Stat. § 1.205 (1994) which states: All statutory references are to Revised Statutes of Missouri 1994, unless otherwise indicated.
1. The general assembly of this state finds that: (1) The life of each human being begins at conception; (2) Unborn children have protectable interests in life, health, and well- being; (3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.
3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.
In applying the Ohio criminal code, Ohio Rev. Code Ann. § 2901.01, to the death of a fetus, the court in State v. Coleman, 1997 WL 798300 (Ohio Ct. App. 10th Dist.Franklin County 1997), dismissed, appeal not allowed, 81 Ohio St. 3d 1497, 691 N.E.2d 1058 (1998), held that unborn children were "persons" under the law, as well as those subsequently born alive. After the appellant battered his victim, including kicks to the stomach, he refused her permission to go to the hospital. When she did seek medical help, the embryo was dead. On the day of the beating, the victim had been examined earlier that morning and the heartbeat of the child was heard. The appellant was indicted on single counts of each of the following: murder, for purposely causing the termination of the victim's pregnancy; involuntary manslaughter, for causing the unlawful termination of the victim's pregnancy as a proximate result of committing or attempting to commit a felony of domestic violence or felonious assault; felonious assault; domestic violence; and kidnapping. The court found that the Ohio General Assembly acted well within its discretion when it decided to provide appropriate penalties for the crime of involuntary manslaughter under Ohio Rev. Code Ann. § 2903.04(A), involving the termination of fetal life and that the legislature is free to impose upon the killer of the fetus the same penalty as prescribed for the murder of a human being.
In the case of Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994), discussed further in § 3[a] the court held that the common-law, "born alive" rule was abandoned so that whether it is ultimately born alive, an unborn fetus that was viable at time of an injury was a human being which may be the subject of a homicide. In rejecting the rule, the court opined that advances in medical and scientific knowledge and technology have abolished the need for the "born alive" rule. Specifically, the court found that the medical and scientific evidence before it established that the child within the victim's womb was a living, viable fetus at the time of the collision and that this child died as a result of the placental abruption which occurred when the victim's stomach hit and broke the steering wheel of her car. The court further explained that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide.
As used in statute providing that killing of "another" while intoxicated was intoxication manslaughter, definition of "another" to mean "human being who has been born and is alive," covered fetus involved in automobile accident, who was born alive and subsequently died from injuries sustained in accident, even though fetus was not born at time of accident. V.T.C.A. Penal Code § 49.08. Cuellar v. State, 957 S.W.2d 134 (Tex. App. Corpus Christi 1997), petition for discretionary review refused, (Apr. 15, 1998)
§ 4. Conviction denied
[a] Based on a finding that fetus was not born alive [FN17]
[FN17]. For cases in which the courts denied convictions based on the application of the "born alive" rule, and on the ruling that a fetus is not a "person" or "human being," see § 4[c].
In the following cases the courts held that a conviction for the homicide of an unborn child would be denied where the fetus was not born alive.
In State v. Gyles, 313 So. 2d 799 (La. 1975), a defendant's action in striking a pregnant woman with a stick and fist which resulted in the delivery of a stillborn child some 8 hours later was not embraced by the statutory crime of murder, [FN18] where that statute required, inter alia, the killing of a human being. In the instant case the defendant struck a pregnant woman with a stick and with his fist. A short time later, she commenced hemorrhaging and was taken to the hospital. Approximately 8 hours after the beating, a male child was stillborn. At the time of the beating, the woman was 8 months' pregnant. The court's analysis of the murder statute lead it to conclude that the common- law crime of murder, which proscribes the killing of a "human being," contemplates only the killing of those human beings who have been born alive and who thus have an existence independent of their mothers at the time of their death. The crime did not punish conduct which caused the death of a fetus not born alive due to an assault on the mother, in the absence of a statute expressly changing the common-law definition of the crime, which the court found was not the case in Louisiana.
[FN18]. La. Rev. Stat. § 14:30.1.
In State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989), [FN19] the court held that killing of a viable, but unborn child was not murder. The defendant killed the mother by means of a shotgun which also caused the death of the fetus. The court adhered to the common-law view that the killing of a viable, but unborn child is not murder in applying the state murder statute, which states that "A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing ... shall be deemed to be murder in the first degree, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life as the court shall determine ... All other kinds of murder ... shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class C felon." [FN20] In so finding the court rejected the state's argument that due to advances in medical technology which enable the state to show with certainty the viability and cause of death of an unborn child, the court should abandon the common-law, "born alive rule" in favor of a rule which would allow prosecution for murder if the fetus, at the time of the killing, was capable of living apart from the mother without artificial support.
[FN19]. In State v Holcomb the court concluded that an unborn child is a person before and after viability.
[FN20]. N.C. Gen. Stat. § 14-17 (1988).
[b] Despite finding that fetus was viable
In the case following the court did not convict the defendant despite finding that the fetus was viable.
State could not prosecute teenage woman who shot herself in abdomen during third trimester of pregnancy, causing death of fetus born alive, for manslaughter or for third degree felony murder with underlying felony of criminal abortion; felony murder, manslaughter, and termination of pregnancy statutes did not abrogate common law doctrine of immunity for pregnant woman for causing injury or death to fetus, and it was highly questionable whether expectant mother's self-induced abortion by gun shot was intended to be regulated by criminal abortion statute. West's F.S.A. §§ 390.001, 782.04(4), 782.07. State v. Ashley, 701 So. 2d 338 (Fla. 1997)
In State ex rel. Atkinson v. Wilson, 175 W. Va. 352, 332 S.E.2d 807 (1984), [FN21] where the defendant robbed and killed a pregnant woman, whose unborn child died within minutes of her death, neither the state's murder statute, nor its attendant common-law principles authorized prosecution of an individual for the killing of an viable unborn child. The mother, who was approximately 37 weeks' pregnant, was robbed and killed in her home. According to the medical examiner, her unborn child, died within minutes of her death. The court stated that all of the parties in this proceeding agreed that at common law, the killing of a viable unborn child was not murder. Furthermore, the parties also agreed that since the murder statute [FN22] was not specific on this point they must rely on common-law principles. Furthermore, the court declined to alter the common-law principles by judicial fiat.
[FN21]. State v. Knapp, 1991 WL 254275 (Mo. Ct. App. 1991), reh'g and/or transfer denied, (Jan. 28, 1992) and cause ordered transferred to Mo. S. Ct., (Mar. 24, 1992) and transferred to Mo. S. Ct., 843 S.W.2d 345 (Mo. 1992), held that an unborn child is a human being for purposes of the homicide statute.
[FN22]. W.Va. Code § 61-2-1.
[c] Based on finding that fetus is not a "person" or "human being"
In the following cases the courts held or recognized that the killing of an unborn child does not constitute homicide under general homicide statutes based on a finding that the fetus is not a "person" or a "human being."
In the case of Vo v. Superior Court In and For County of Maricopa, 172 Ariz. 195, 836 P.2d 408 (Ct. App. Div. 1 1992), review denied, (Sept. 22, 1992), the court held that the legislature did not intend to include a fetus in the definition of a "person" or a "human being" contained in the murder statute, and thus the killing of a fetus did not constitute first-degree murder. The evidence presented to the grand jury was that the defendant allegedly was riding in a stolen car. The defendant was in the front passenger seat. They accelerated into the fast lane, behind a pickup truck in which the victim and her husband were driving. Following an alleged exchange of gestures between the occupants of the two vehicles, the defendant allegedly rolled down the window and fired two shots at the pickup truck. One of the shots struck the victim, who was the passenger in the pickup truck, killing her and her fetus. The investigating police officer testified as follows about the fetus: "Q. There was also a discussion [with the medical examiner who performed the autopsy] about the baby. What was the cause of death of the baby? A. He said the baby died as a direct result of the shooting death of its mother." The court noted that a stillborn, viable fetus was held to be a "person" allowed to collect civil damages under the wrongful death statute and that the statute did not define "person," but the court declined to apply an expanded definition of "person" within the penal murder statute. The court also pointed out that a fetus was treated separately from other "persons" in other statutory areas of the law (for example, death certificates). [FN23] In dismissing the murder counts the court did so without prejudice to the state to seek re-indictment on charges of manslaughter under the state manslaughter statute which includes causing the death of an unborn child. [FN24]
[FN23]. Ariz. Rev. Stat. Ann. § 36-327.
[FN24]. Ariz. Rev. Stat. Ann. § 13-1103(A)(5).
In the case of Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987), (declined to follow by, State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 0 (Mo. Ct. App. W.D. 1997), [FN25] the court held that the reckless killing of unborn viable fetus was not included within purview of manslaughter statute. [FN26] The appellant, while intoxicated, drove his car in a reckless manner, veered across the center line of the highway and struck an oncoming car. As a result, the driver was killed and an unborn viable fetus, carried by a passenger in the appellant's car, was also killed. The appellant was charged with, and convicted of, two counts of manslaughter; one for killing the driver and the other for killing the unborn fetus. In reaching its conclusion the court reasoned that the common law applied and the common law stated that an unborn fetus was not included within the definition of a "person" or "human being," and therefore, the killing of a viable unborn child was not murder. Moreover, the court declined the invitation to create a new common-law crime.
[FN25]. The State v Holcomb case, § 3[b], eliminated the viability requirement, thus finding a fetus a human being from conception.
[FN26]. Ark. Stat. Ann. § 41-1504(1)(c) (Repl. 1977).
In Keeler v. Superior Court, 2 Cal. 3d 619, 87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420 (1970), the court held that an unborn, but viable fetus is not a "human being" within the meaning of the statute defining murder. The relevant penal code section provided: "Murder is the unlawful killing of a human being, with malice aforethought." [FN27]
[FN27]. Cal. Penal Code § 187.
In People v. Davis, 19 Cal. Rptr. 2d 96 (App. 4th Dist. 1993), review granted and opinion superseded, 22 Cal. Rptr. 2d 688, 857 P.2d 1098 (Cal. 1993) and judgment aff'd, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994), § 12, the court in rejecting viability as an element of the crime noted that the legislature reacted to the Keeler decision by amending the murder statute, Cal. Penal Code § 187(a), to include within its proscription the killing of a fetus (Cal. Stats. ch. 1311 § 1 P 2440 (1970)). The amended statute reads: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." In this case the defendant, upon discovering that his estranged wife was pregnant by another, assaulted her resulting in the death of the fetus who was determined to have been viable. The court referred to the common law which required that the baby be born alive and then die in order for there to have been a murder. Thus, the court held that in adopting the definition of murder in Cal. Penal Code § 187 the legislature intended to exclude from its reach the act of killing an unborn fetus. In reaching this conclusion, the court reasoned that the legislature has defined the crime of murder in California to apply only to the unlawful and malicious killing of one who has been born alive. The court stated that it recognized that the killing of an unborn, but viable fetus may be deemed by some to be an offense of similar nature and gravity; but it adopted a warning of the danger to carry the principle that a case that is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. [FN28] The court determined that whether to thus extend liability for murder in California was a determination solely within the province of the legislature and that for a court to simply declare, by judicial fiat, that the time has now come to prosecute under the statute one who kills an unborn, but viable fetus would indeed be to rewrite the statute under the guise of construing it.
[FN28]. U S v. Wiltberger, 18 U.S. 76, 5 L. Ed. 37 (1820).
The court in State v. Anonymous (1986-1), 40 Conn. Supp. 498, 516 A.2d 156 (Super. Ct. 1986), held that an application for an arrest warrant charging the defendant with murder of an unborn, but viable fetus would be denied in that legislature did not intend to include such a fetus as a "human being" within the meaning of the statute defining murder, and if the court were to construe the statute to the contrary it would exceed its judicial power and deny the defendant due process of law. In the instant case the following were found to be supported by the evidence: (1) the accused shot the victim, who died as a result of the gunshot wounds; (2) the accused intended to shoot either the victim or the man accompanying her; (3) the victim was about 6 months pregnant at the time of the shooting; (4) the victim's unborn child was a viable and healthy child who at the time his mother was shot was capable of sustaining life outside his mother's womb; (5) the cause of the child's death was the loss of circulation of blood from the mother; (6) had the child been removed from the womb prior to the loss of circulation of blood, he could have survived on his own; and (7) the child was stillborn. The defendant was accused of murder pursuant to the homicide statute. [FN29] This statute provides that "[a] person is guilty of murder when, with intent to cause the death of another person ... he causes the death of such person or of a third person." "Person" is defined for the purpose of the homicide statutes as a "human being." [FN30] There is no explicit definition of the term "human being" in the General Statutes. In its statutory analysis the court noted that when the new penal code was enacted in 1971, there was a criminal abortion statute, previously enacted in 1949, which contained specific language dealing with an "unborn child" and that the language was not carried over into the new penal code, but retained only in the abortion statute. [FN31] Thus the court opined that the fact that the legislature would refer to an "unborn child" in one statute and not in the other is strongly persuasive that the legislature did not intend an "unborn child" to be a "person" in the murder statute.
[FN29]. Conn. Gen. Stat. § 53a-54a(a).
[FN30]. Conn. Gen. Stat. § 53a-3(1).
[FN31]. Conn. Gen. Stat. § 53-29.
In Passley v. State, 194 Ga. 327, 21 S.E.2d 230 (1942), the court held that an unborn child is not such a "human being" that its unlawful killing with malice aforethought would constitute "murder" within the general statutes defining murder. [FN32] In construing the feticide statute the court declared that the chief elements of that offense are the willful killing of the unborn child by any injury inflicted upon the mother of such child, "which would be murder if it resulted in the death of such mother." The quoted language of the section means that the injury must be inflicted upon the mother with malice and with intent to kill the mother. Where here the defendant was charged with an offense under the feticide statute he could not be convicted of murder under the general statutes defining murder since the killing of an unborn child does not constitute the killing of a human being and having merely beaten his wife with a stick he could not be convicted under the feticide statute as well.
[FN32]. Ga. Code Ann. § 26-1002.
In the case of People v. Greer, 79 Ill. 2d 103, 37 Ill. Dec. 313, 402 N.E.2d 203 (1980), [FN33] and (declined to follow by, State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 0 (Mo. Ct. App. W.D. 1997), [FN34] the court held that taking life of fetus is not murder unless the fetus is born alive and subsequently expires as a result of injuries inflicted; and that the defendant was not guilty of murder upon the death of the fetus of gestational age of 8 1/2 months, although the fetus died from the effects of the defendant's beating the mother where the fetus did not expire from injuries suffered after being born alive. The defendant beat his girlfriend who was carrying an 8 1/2-month- old fetus to death with his fists and a stick. Under the state's homicide statute, [FN35] it is provided that "(a) person who kills an individual without lawful justification commits murder." In its analysis of the statute the court turned to the common law as its guide. The common law provided that the killing of a fetus was not murder unless the child was born alive and then expired as a result of the injuries previously sustained. The court also noted that the Abortion Act did not treat any offense under the act as murder except the killing of a fetus aborted alive. Accordingly, the court concluded that taking the life of a fetus is not murder under the current statute unless the fetus is born alive and subsequently expires as a result of the injuries inflicted.
[FN33]. In response to the Greer decision, in 1981 the Illinois Legislature enacted a statute criminalizing the nonconsensual killing of an unborn child (Ill. Rev. Stat. § 82-303 (1981, Public Act); see People v. Ford, 221 Ill. App. 3d 354, 163 Ill. Dec. 766, 581 N.E.2d 1189 (4th Dist. 1991), habeas corpus granted, 888 F. Supp. 909 (C.D. Ill. 1995), rev'd, 104 F.3d 926 (7th Cir. 1997), § 9. Included as an element of the crime under this statute was the requirement that the fetus be "capable, at the time of its death, of sustained life outside of the mother's womb with or without life support equipment" (Ill. Rev. Stat. ch. 38 P 9-1.1(b) (1981). In 1986 the Illinois Legislature repealed the 1981 statute and enacted various provisions criminalizing acts against unborn children. Under the new statutes the legislature eliminated the viability requirement by defining an unborn child as "any individual of the human species from fertilization until birth" (Ill. Rev. Stat. ch. 38, P 9-1.2(b)(1) (1987).
[FN34]. The cases of State v. Knapp, 1991 WL 254275 (Mo. Ct. App. 1991), reh'g and/or transfer denied, (Jan. 28, 1992) and cause ordered transferred to Mo. S. Ct., (Mar. 24, 1992) and transferred to Mo. S. Ct., 843 S.W.2d 345 (Mo. 1992); People v. Davis, 19 Cal. Rptr. 2d 96 (App. 4th Dist. 1993), review granted and opinion superseded, 22 Cal. Rptr. 2d 688, 857 P.2d 1098 (Cal. 1993) and judgment aff'd, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994); State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 901 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (51077)(Oct. 28, 1997) and transfer denied, (Dec. 23, 1997), all reject the "born alive" rule.
[FN35]. Ill. Rev. Stat. ch. 38 P 9-1(a) (1977).
In the case of State v. Green, 245 Kan. 398, 781 P.2d 678 (1989), habeas corpus dismissed, 798 F. Supp. 649 (D. Kan. 1992), aff'd, 13 F.3d 405 (10th Cir. 1993), cert. denied, 511 U.S. 1090, 114 S. Ct. 1848, 128 L. Ed. 2d 473 (1994), [FN36] the court upheld the state legislature's determination that a viable fetus is not a human being for purposes of the murder statute. The mother and the defendant had been living together for about a year when an angry split occurred. The defendant, as a result of the split-up, shot the mother to death. After efforts to resuscitate the mother failed, a cesarean section was performed and a male fetus of approximately 34-35 weeks was delivered. Although there were no signs of life at birth, a neonatal team immediately attempted to resuscitate the fetus. Ten minutes later a faint heartbeat was heard, but in the process of transferring the fetus to ICU the heartbeat was lost. For a while, an attempt was made to monitor the heartbeat; however, nothing was heard. After about 30 minutes in ICU, the fetus was pronounced dead. No other signs of life were detected after the birth and the pediatrician who treated the fetus described the birth as a "still birth," even though he briefly considered the fetus alive when a heartbeat was discovered. An autopsy of the fetus revealed it was viable and did not suffer from any natural disease process; rather, it died of anoxia due to the death of the mother. Based on the facts the court determined that despite the evidence that a faint heartbeat was heard the baby was a stillborn, thus, not a human being who could be killed under the murder statute which requires a "live birth" to render a fetus a human being entitled to the protection of the law. [FN37] The court also recognized that feticide was not made a crime by the state legislature.
[FN36]. In State v Holcomb, § 3[b], the court concluded that an unborn child is a person before and after viability.
[FN37]. Kan. Stat. Ann. § 65-2401(2), defines "live birth": " 'Live birth' means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached."
In Hollis v. Com., 652 S.W.2d 61 (Ky. 1983), [FN38] the court held that killing a viable fetus, alleged to be 28 to 30 weeks old, by assault upon the pregnant mother could not support a murder indictment; until the fetus was born alive, existing separate from its mother, as the fetus was not a "person," as that word is used in context of criminal homicide statutes, [FN39] and could not have status as a victim of a criminal homicide. The defendant who took his estranged pregnant wife from her parents' home out to the barn, told her he did not want the baby, and then forced his hand up her vagina killing the unborn, but viable child and substantially damaging the mother's uterus and vagina, could not be charged with murder under the statute penalizing "the death of another person." In reaching its holding the court differentiated Roe v Wade [See § 2a] stating that "The United States Supreme Court decision in Roe, is not authority for the proposition that a viable fetus should be considered a "person" whose life is entitled to constitutional protection, much less for the proposition that the killing of a viable fetus must be regarded as murder. The thrust of Roe was from the opposite direction, that no state can prohibit terminating the life of a fetus, regarded by many as human life at any stage of its development, until the final trimester of pregnancy, and not even then when necessary to protect maternal life or health. Thus the "health of the mother" is afforded constitutionally protected precedence over the "life" of the fetus. The decision in Roe is simply that a woman's decision whether to terminate pregnancy is protected by the Due Process Clause of the Fourteenth Amendment, to such an extent that the state has no "compelling" interest permitting it to make abortion unlawful until the third trimester of pregnancy, the point at which the fetus becomes viable." The court, thus, reasoned that Roe allowed the state to regulate abortion in the second trimester, but that it would be absurd to construe the homicide statute as a vehicle to accomplish abortion regulation and that the statute adheres to the common-law view that there could be no murder of a viable fetus unless it was born alive before being murdered.
[FN38]. In the case of Jones v. Com., 830 S.W.2d 877 (Ky. 1992), opinion amended, (Apr. 30, 1992), the court held that the defendant could be convicted under the manslaughter statute while operating a motor vehicle where the injuries were inflicted before birth, but death occurred after that; see § 7.
[FN39]. Ky. Rev. Stat. Ann. § 507.020.
In State v. Keller, 592 So. 2d 1365 (La. Ct. App. 1st Cir. 1991), writ denied, 594 So. 2d 878 (La. 1992), the court held that in a situation involving 2 victims, if someone killed a human being, that is, one born alive, while possessing specific intent to kill or inflict great bodily harm on 2 persons, such conduct constituted first-degree murder regardless whether the other person is a human being born alive or is a fetus since a fetus is a "person" for such purposes. [FN40] The court reasoned that since first-degree murder is the killing of a human being: When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; ... in a situation involving 2 victims, if someone kills a human being, that is, one born alive, while possessing the specific intent to kill or to inflict great bodily harm upon 2 persons, such conduct constitutes first-degree murder under La. Rev. Stat. Ann. § 14:30A(3), regardless whether the other person is a human being born alive or is a fetus. Thus, the court found that the trial court properly denied a motion to quash an indictment which charged the defendant with first degree murder arising out of killing a pregnant woman and her unborn child, since the statute defines "person" as including "human being" from moment of fertilization and implantation.
[FN40]. La. Rev. Stat. Ann. § 14:30A(3).
The court in People v. Joseph, 130 Misc. 2d 377, 496 N.Y.S.2d 328 (County Ct. 1985), held that the legislature did not intend to make non-abortional killing of an unborn child a homicide. In this case the defendant killed the mother apparently by vehicular manslaughter causing the stillbirth of the fetus. The homicide charge was based on a statutory provision [FN41] which defines a homicide as causing the death of a person or an unborn child carried by a female for more than 24 weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree, or self-abortion in the first degree. In reaching its conclusion that the indictment had to be dismissed the court reasoned that the legislature in revising the criminal law was merely codifying the common law and not altering the definition of a "homicide" to include the killing of an unborn child when an unborn child could not be the subject of a homicide under the common law. The court noted that N.Y. Penal Code § 125.05(1), defined a person as "a human being who has been born and is alive," and that at common law an individual could not be convicted of homicide for the death of a child as a result of prenatal injuries unless the child was born alive.
[FN41]. N.Y. Penal Code § 125.00.
[d] Based on application of the felony-murder rule
In the following case a conviction for killing a fetus was denied where the conviction was based on the felony-murder rule.
In the case of People v. Carlson, 37 Cal. App. 3d 349, 112 Cal. Rptr. 321 (1st Dist. 1974), [FN42] use of the felony-murder rule to find the defendant guilty of second-degree murder of his unborn child was held to be prejudicial error where the act that resulted in the death of the fetus was the same act on which the court had based its finding of defendant's guilt of voluntary manslaughter of the mother, and where it had determined that killing of the mother was without malice. The defendant was charged with the murder of 2 separate entities, his wife and his unborn child. Under the provisions of Cal. Penal Code § 187(a), "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." Although the fetus was killed by the defendant while engaged in the commission of a felony inherently dangerous to human life, the felony was not one independent of homicide as required for application of the felony-murder doctrine. Construing the felony-murder statute, Cal. Penal Code § 189, the court found that it is unnecessary to resort to the felony-murder rule where homicides by the same act constitute separate offenses for which separate prosecutions and convictions may be had, independent of the felony-murder rule, and in such case convictions can be predicated on normal rules of murder and element of malice aforethought may be established by evidence including defendant's conduct and inferences arising from it. Moreover, under the law at the time there could be no manslaughter of a fetus as the statute, Cal. Penal Code § 192, applied only to a human being so that the doctrine of transferred intent could not be applied to the killing of the fetus from the specific intent to kill of the mother. Thus, although the killing of both the defendant's wife and her fetus resulted from one act of the defendant, the crime of manslaughter could not be transferred to killing of the fetus upon finding the defendant guilty of voluntary manslaughter of the wife, as there was no crime of manslaughter of a fetus.
[FN42]. In People v Czahara, the court declined to apply the doctrine of transferred intent.
B. Where Death Occurs after Birth
§ 5. Conviction upheld or supportable
In the following cases convictions were upheld or deemed to be supportable on the evidence, the courts holding or recognizing that inflicting injuries upon an unborn child who, after being born alive, subsequently dies as a result of such injuries, may constitute homicide under general homicide statutes.
The court in Clarke v. State, 117 Ala. 1, 23 So. 671 (1898), recognized that at common law and under the Alabama statutes [FN43] an unborn infant is not considered a person who can be murdered, but that the offense is murder where the infant is born alive and dies from the injuries sustained before birth. The conviction of the defendant, however, for the second-degree murder of his child, who died from prenatal injuries inflicted when the defendant allegedly beat the child's mother, was reversed on the ground that the exclusion of the mother's testimony was erroneous.
[FN43]. Ala. Crim. Code § 4680 (1986).
In the case of Ranger v. State, 249 Ga. 315, 290 S.E.2d 63 (1982), the court found sufficient evidence to uphold a conviction of the defendant for the felony murder of an infant who was born alive, breathed on its own, and had movement of its extremities before dying some 12 hours later from a breathing disorder caused by the shooting resulting in its premature delivery. The defendant who thought he was the father of the child shot the mother in the head at point-blank range after discovering evidence that that the mother was having an affair with another man. The mother went into a deep coma and the baby was delivered by caesarian section after it was discovered that it had a heartbeat. The court determined that the state had to prove that the baby was born alive, that it had a separate existence from its mother, and that it was killed by the accused.
While specifically holding that to charge a woman with causing or producing an abortion is not to charge her with the crime of murder under a statute providing that whoever kills any human being with malice aforethought, either expressed or implied, is guilty of murder, and thus that such charge is not actionable slander in itself, the court in Abrams v. Foshee, 3 Iowa 274, 3 Clarke 274 (1856), recognized that when a child is born alive, it becomes a human being within the meaning of the law, and that if it should then die by reason of any potions or bruises received in the womb, the offense would be murder on the part of those who administered or gave such potions or bruises with a view to causing a miscarriage.
In the case of People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1st Dep't 1990), on reconsideration, appeal denied, 76 N.Y.2d 1021, 565 N.Y.S.2d 771, 566 N.E.2d 1176 (1990), the court upheld the existence of the "born alive" rule as incorporated in the homicide statutes [FN44] and held that the infant who died following a premature caesarian birth necessitated by the shooting of her pregnant mother was "born alive" and thus was a legal "person" within the meaning of the homicide statutes, notwithstanding the contention that someone who required assistance of modern medical technology to survive even temporarily was not really alive; although the infant was born premature, doctors who treated or examined her were convinced that she was alive at time of birth and until she finally succumbed 36 hours later, and the infant in fact suffered from a syndrome common to premature infants, but nonexistent in babies who never breathed or who died in utero. The defendant became engaged in a fistfight. After the 2 men were separated, the defendant left to procure a gun. He then returned to the scene of the altercation and waited across the street until the other man emerged from a corner pool hall. the defendant thereupon opened fire at the other man, who managed to avoid being hit by ducking for cover. However, 2 of the bullets hit a passerby, the victim, striking her in the arm and the abdomen. Despite being seriously injured, one of the shots having penetrated her uterus and also damaging the intestinal bowel system, she survived. The victim was, at the time, some 28 to 32 weeks' pregnant, and the shot to the stomach also severed the placenta, resulting in a lack of oxygen to the fetus, which mandated an immediate delivery. The baby was born by caesarian section and lived for some 36 hours before expiring from a series of maladies attributed to prematurity and oxygen deprivation. The court determined that the baby was born alive notwithstanding its precarious condition, that it had breathed, developed a circulatory system, and had moved its arms and legs. The baby was, thus, a person under the homicide statutes and the defendant could be convicted of killing it.
[FN44]. N.Y. Penal Law § 125.05(1).
Reversing the defendant's conviction of murder of an infant on the ground that the state had failed to prove that the infant was born alive, the court in Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923), said that where a live birth is proved, a murder conviction may be based on the infliction of prenatal injuries. The court explained that to sustain a conviction of murder under a statute defining murder "as the malicious killing of a reasonable creature in being," [FN45] a child must be born alive, and if, after birth, it dies by reason of a potion or bruises received in its mother's womb, the offense is murder.
[FN45]. Thompson's-Shannon's Code § 6438.
§ 6. Conviction denied
In the following case a conviction was denied where the state could not prove that the fetus was born alive.
In Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923), the court upheld the "born alive" rule as applied to the Code which restricted murder to the killing of a "reasonable creature in being." The mother and the alleged father were present during the birth. It was alleged that the father engaged in unspeakable acts of brutality to hasten the delivery. The mother never saw the baby which was found days later in a creek with its head crushed. The case was remanded for another trial because the state unable to produce sufficient evidence that the baby had breathed on its own. In remanding the case the court opined that the injuries causing its death need not have been delivered after its birth and it is murder if it died from a potion or bruises received in its mother's womb.
III. Conviction for Vehicular Homicide
§ 7. Conviction upheld
[a] Based on a finding that fetus was born alive
In the following cases the courts held that a conviction would be upheld under statutes where the fetus was born alive, but died as a result of vehicular homicide.
In the case of State v. Hammett, 192 Ga. App. 224, 384 S.E.2d 220 (1989), which involved a prosecution under the vehicular homicide statute, [FN46] the court determined that in this prosecution arising from an automobile collision in which an injured pregnant woman who was then transported to the hospital and gave birth through an emergency caesarian section to a child who lived approximately 11 hours before dying from injuries received in an accident, the trial court improperly granted a demurrer to the charged offense of homicide by vehicle in second degree, where the victim's status at time of his death and not at the time injuries were inflicted determined the nature of crime, and where the evidence established that the victim was a person at time of his death. The driver lost control of her car and collided with a vehicle in which the mother was a passenger. The mother was 35 weeks' pregnant at the time. The mother was transported to a hospital and gave birth, through an emergency caesarian section. The child lived approximately 11 hours before dying from the injuries he had received in the accident, primarily internal hemorrhaging and a fractured right clavicle. In reaching its decision the court analogized the case to the felony-murder rule which provides that a person who injures a pregnant woman so that her fetus, though born alive, subsequently dies by reason of the injuries inflicted on it while still in its mother's uterus, can be convicted for the felony murder of the newborn child.
[FN46]. O.C.G.A. § 40-6-393(b), provides that: Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than [certain code sections inapplicable here] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death.
In People v. Bolar, 109 Ill. App. 3d 384, 64 Ill. Dec. 919, 440 N.E.2d 639 (2d Dist. 1982), the court upheld the live-birth rule by finding that the victim, a newborn infant who, at time of delivery by cesarean section made necessary by the reckless act of the defendant, exhibited only a few heartbeats which declined in rate and then terminated within minutes, was born alive and, hence, was an "individual" within the meaning of involuntary manslaughter and reckless homicide statute. [FN47] In the early morning hours the victim and her husband were driving home. At that time the victim was somewhat more than 8 months' pregnant. When the victims' vehicle entered the intersection of Twentieth Street and Twelfth Avenue, it was struck on the driver's side. The defendant, failed to stop for a stop sign located on Twelfth Avenue. His vehicle struck the victims' vehicle at a speed in excess of 30 miles per hour. The victim suffered some minor lacerations and abrasions and experienced abdominal pain and was taken to the hospital. The victim's physician who was ministering to her obstetrically, was summoned to the hospital. He testified that upon his arrival at the hospital at approximately 5 a.m. the fetal heartbeat was 140 beats per minute. By 6:45 a.m., the fetus's heartbeat had fallen to 115 beats per minute and the doctor called in a consultant. At approximately 7:50 a.m., the doctors performed a cesarean section. At 8 a.m., the fetus was removed from her uterus. At this time the baby was handed to a nurse who established that there was a rate of about 50 heartbeats per minute, and they were regular and faint. She advised the doctor of the heartbeat and to go ahead with resuscitation measures at that time. The infant was flaccid, did not move, and made no apparent effort to breathe. Oxygen was administered and the doctors attempted to resuscitate the infant. After 2 minutes, a nurse again measured the heart rate. She heard "two beats slow and then three little like a flutter beat, and then it stopped." The doctor continued to resuscitate while a nurse passed the stethoscope to another nurse standing there who stated she could hear "nothing." The stethoscope was then passed to the doctor and at that time resuscitation efforts were stopped. The infant was pronounced dead shortly after 8 a.m. The court noted that the issue presented a question of first impression in the State of Illinois: whether a newborn who, at the time of delivery, exhibits only a few heartbeats which decline in rate and then terminate within minutes is to be considered to have been an individual under the provisions of the Involuntary Manslaughter and Reckless Homicide Statute. In deciding in the affirmative the court rejected the notion that brain activity was necessary to show a live birth. Rather, the court found that any brief, independent existence was sufficient to establish the live birth necessary to satisfy the statutory criteria of an individual.
[FN47]. Ill. Stat. Ann. ch. 38 P 9-3.
In the case of Jones v. Com., 830 S.W.2d 877 (Ky. 1992), opinion amended, (Apr. 30, 1992), the court held that the defendant could be convicted under the manslaughter while operating a motor vehicle statute [FN48] where the injuries were inflicted before birth, but death occurred after birth. The defendant while driving under the influence of alcohol, collided with another vehicle driven by the victim who was 32 weeks' pregnant at the time. Five hours later the baby was delivered by caesarian section, and 14 hours after delivery the baby died from prenatal injuries sustained in the motor vehicle collision. The court based its decision on its finding that the status of the victim as a "person" at the time of death, rather than at the time the prenatal injuries were inflicted, was controlling for purposes of determining whether the defendant could be convicted of second-degree manslaughter for wantonly causing the death of another person during operation of motor vehicle. In doing so the court distinguished other cases where the injuries and the death of the fetus both occurred before the live birth of the fetus and, thus, before the fetus became a "person."
[FN48]. Ky. Rev. Stat. Ann. § 507.040.
In the case of Cuellar v. State, 957 S.W.2d 134 (Tex. App. Corpus Christi 1997), petition for discretionary review refused, (Apr. 15, 1998), the court held that as used in the statute providing that the killing of "another" while intoxicated was intoxication manslaughter, [FN49] the definition of "another" to mean "human being who has been born and is alive," covered the fetus involved in an automobile accident, who was born alive and subsequently died from injuries sustained in the accident, even though the fetus was not born at the time of the accident. [FN50]
[FN49]. Tex. Penal Code § 49.08.
[FN50]. See § 7[b] for a full discussion of the facts of this case.
[b] Based on a finding that fetus is "person" or "human being"
In the cases following the courts upheld convictions for the killing of fetuses under statute where fetuses who died as a result of vehicular homicide were held to be "persons" or "human beings."
In the case of Com. v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), [FN51] the court held that a viable fetus is a person for purposes of the vehicular homicide statute so that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. The defendant, while operating a motor vehicle on a public way, struck a female pedestrian who was 8 1/2 months' pregnant. The fetus died in the womb and was delivered by caesarian section. It was determined by autopsy that the fetus was viable at the time of the incident and that it died as a result of internal injuries caused by the impact of the vehicle operated by the defendant. The defendant was charged with violating the homicide-by-motor-vehicle statute. [FN52] The court opined that in keeping with approved usage, and giving terms their ordinary meaning, the word "person" is synonymous with the term "human being." An offspring of human parents cannot reasonably be considered to be other than a human being, and therefore a person, first within, and then in normal course outside, the womb. In looking at the common law, the court also found support there for its conclusion noting that many other courts have reached the same conclusion, namely that destruction of the fetus should be a homicide, but determined that legislative action was necessary in order to establish the crime. In rejecting the common-law view of no liability the court reasoned that difficulty of proving causation is no sound reason for denying criminal liability.
[FN51]. In the Meadows, Vecelletto, Beale, and Vo cases, the courts determined that a fetus was not a "person" or "human being" for the purposes of the particular homicide statutes considered.
[FN52]. Mass. Gen. Laws Ann. ch. 90 § 24G(b), as appearing in St.1982, c. 376, Sec. 2, which provides in pertinent part: "Whoever ... operates a motor vehicle while under the influence of intoxicating liquor, or of marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, or whoever operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle ..."
In the case of State v. Knapp, 843 S.W.2d 345 (Mo. 1992), [FN53] the court held that causing the death of an unborn child is causing the death of a "person" within the meaning of an involuntary manslaughter statute. [FN54] The defendant, who was intoxicated, drove her vehicle across the center line of the highway and collided with a vehicle driven by the mother who was 6 months' pregnant. Medical testimony revealed that the unborn child was viable and that death resulted from a brain hemorrhage brought on by trauma to the child's head, a result "consistent with seat belt injuries." The court employed statutory construction principles to determine that the statute [FN55] defining "person" to include unborn children applied to the manslaughter statute. Specifically, the court found the statutes to be in pari materia, that the statute which states that life begins at conception and that an unborn child is a "person" was not unconstitutionally vague as applied to the involuntary manslaughter statute where the express language of the definitional statute stated that its provisions applied to the "laws of this state," and that the statute was enacted in conjunction with the involuntary manslaughter statute, giving ample notice that causing the death of an unborn child was proscribed conduct.
[FN53]. The May court declined to extend the unborn child as a person rule to the wrongful death statute.
[FN54]. Mo. Ann. Stat. § 565.024.
[FN55]. Mo. Ann. Stat. § 1.205, which provides that:
1. The general assembly of this state finds that: (1) The life of each human being begins at conception; (2) Unborn children have protectable interests in life, health, and well-being; (3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.
3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development. 4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.
In the case of Cuellar v. State, 957 S.W.2d 134 (Tex. App. Corpus Christi 1997), petition for discretionary review refused, (Apr. 15, 1998), the court held that as used in the statute providing that the killing of "another" while intoxicated was intoxication manslaughter, [FN56] the definition of "another" to mean "human being who has been born and is alive," covered the fetus involved in an automobile accident, who was born alive and subsequently died from injuries sustained in the accident, even though the fetus was not born at the time of the accident. The appellant drove his car into a car being driven by the mother, who was then 7 1/2 months' pregnant. As a result of the collision, the mother was pinned between the seat and the steering wheel, with the steering wheel pushing into her abdomen. Both the appellant and the mother were taken to the hospital. The appellant's blood alcohol level was tested 1 1/2 hours after the collision and found to have a concentration of .24. The mother's attending physician at the hospital observed fetal distress and therefore performed an emergency caesarian section. A live baby girl was born. Shortly after birth the baby's head appeared swollen, indicating internal bleeding in the brain. Her condition deteriorated and she died approximately 43 hours later. The medical examiner concluded that the cause of death was injury to the brain resulting from the automobile collision. The court determined that the fetus was an individual under the state's criminal law. The court noted that the elements of intoxication manslaughter were (1) a person (2) operating a motor vehicle in a public place (3) who is intoxicated, and (4) by reason of that intoxication causes the death of another. It then found that it was undisputed that the appellant was a person operating a motor vehicle in a public place while intoxicated, that the fetus died by reason of the defendant's intoxication and that the fetus was born and was alive for a period of time. Therefore, in applying the statutory definition "has been born and is alive" to the facts of this case, the court held that the fetus was an "individual." The court also noted that the civil law of this state recognized the rights of a child who suffered some injury in the womb and was later born alive to be compensated for those prenatal injuries.
[FN56]. Tex. Penal Code § 49.08.
§ 8. Conviction denied
In the following cases an unborn viable fetus was held not to be a "person," a "human being," or "another' within the meaning of that term as used in a vehicular homicide statute, and thus, the courts determined that a conviction under the statute was not warranted.
In the case of Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987), [FN57] the court held, under a statute that stated that a person commits manslaughter if he recklessly causes the death of another person, [FN58] that an unborn, viable fetus is not "person" within the meaning of the manslaughter statute, and thus, the reckless killing of an unborn, viable fetus is not within the purview of that statute. The appellant, while intoxicated, drove his car in a reckless manner, veered across the center line of the highway, and struck an oncoming car. As a result, an unborn, viable fetus, carried by a passenger in appellant's car, was also killed. The appellant was charged with, and convicted of, 2 counts of manslaughter; one for killing the driver and the other for killing the unborn fetus. In reaching its conclusion the court stated that it was declining to create a new common-law crime.
[FN57]. In State v Holcomb the court concluded that an unborn child is a person before and after viability.
[FN58]. Ark. Stat. Ann. § 41-1504(1)(c) (Repl.1977).
In the case of State v. McCall, 458 So. 2d 875 (Fla. Dist. Ct. App. 2d Dist. 1984). The defendant was involved in an automobile accident resulting in the death of the mother. The court determined, as a matter of first impression, that there are no such crimes as vehicular homicide and DWI manslaughter of a viable, but unborn child. [FN59] The court did not hold that a viable fetus is not alive or that a person should not be punished for causing its death. The court adopted the traditional interpretation of the words "human being" under the homicide statutes as meaning one who has been born alive. At the time of her death, the mother was in labor with a full- term viable fetus. As a result of the accident, the fetus was stillborn, having never lived independently of his mother's body and never having a heartbeat or breath after delivery by Caesarian section. The court noted that under the wrongful death statute a viable fetus subsequently born "stillborn" is not a "person."
[FN59]. Fla. Stat. Ann. §§ 316.1931, 782.071.
In Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); [FN60] the court held that a 6-month-old fetus was not "person" within the vehicular- homicide statute, and the defendant was thus erroneously convicted of 2 counts of vehicular homicide after an accident that killed the expectant mother and the fetus. The drunk driver contended that she could not be convicted of a separate count of vehicular homicide based on the death of the unborn child because an unborn child does not constitute a "person" within the meaning of the vehicular homicide statute. [FN61] The court upheld the drunk driver's position after examining the code and finding no clear definition of either "individual" or "person" and determined, therefore, that it must turn to the common law which clearly found an unborn fetus not a person and, thus, its killing not a homicide.
[FN60]. State v Knapp held that causing the death of an "unborn child" is causing the death of a "person."
[FN61]. The statute provides, in pertinent part, as follows: (a) Any person who, without malice aforethought, causes the death of another person through the violation of Ga. Code Ann. §§ 40-6-271, 40-6-390, 40-6-391, or subsection (a) of Ga. Code Ann. § 40-6-395(a) commits the offense of homicide by vehicle in the first degree and, upon conviction, punishment will be by imprisonment for not less than 2 years or more than 15 years.
In the case of State v. Trudell, 243 Kan. 29, 755 P.2d 511 (1988), [FN62] the court upheld a lower court's ruling that a viable fetus was not a "human being" within the meaning of the aggravated vehicular homicide statute. [FN63] The defendant was driving his car at a high rate of speed, trying to elude a pursuer with whom the defendant had fought after the pursuer and others had ejected him from a private club. In his haste, the defendant drove into the rear end of a pickup truck in which the mother was a passenger. The collision caused the truck to smash into a light pole, propelling the mother, who was approximately 25 weeks pregnant, from the truck. She was taken to a hospital for examination. The hospital staff discovered bruises on her abdomen. A fetal heartbeat was found at the time of the first examination, but all fetal activity had stopped by nightfall. After a stillborn birth of the fetus, it was determined that abnormal trauma to the mother's stomach had torn the placenta, blocking the blood supply to the fetus and resulted in its death. There was medical testimony that the fetus had been viable before the accident. The court noted that under the common law a human fetus was not a human being. While recognizing that the state had modified the common law by statute to make the killing of a viable fetus a homicide until the criminal law was revised in 1969, where the new revision failed to include the previous feticide provision the court reasoned that it was, thus, up to the legislature to provide for the killing of a fetus and it noted that there was ample evidence that the legislature was aware of the issue.
[FN62]. Knapp held that causing the death of an "unborn child" is causing the death of a "person."
[FN63]. Kan. Stat. Ann. § 21-3405a.
In the case of People v. Guthrie, 97 Mich. App. 226, 293 N.W.2d 775 (1980), appeal denied, 417 Mich. 1006, 334 N.W.2d 616 (1983), [FN64] the court upheld the "born alive" rule. The court held that under the statute making any person guilty of a misdemeanor if he shall "cause the death of another" by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless, or negligent manner, but not willfully or wantonly, could not be interpreted by the court of appeals as including unborn, viable fetuses as persons without usurping the traditional power of the legislature to define what acts shall be criminal. [FN65] The defendant drove his pickup truck across 4 lanes of traffic striking an automobile being driven by the mother in the northbound curb lane. The collision caused the mother's abdomen to impact with her vehicle's steering wheel. At the time of the accident, the mother was 9 months pregnant and was scheduled to enter the hospital the next day in preparation for a caesarian delivery. Shortly after the accident an emergency caesarian section was performed and a stillborn infant was delivered. An autopsy revealed that the infant weighed 7 pounds, was "ready for birth" with all organs "normal" except there had been no expansion of the lungs. The pathologist stated that he found no evidence of trauma directly to the infant, but that the placenta and the vessels of the umbilical cord had been torn. Both the pathologist and the obstetrician who performed the caesarian stated that the infant had bled to death. The court noted that there was no crime at common law without the killing of a living human being. While concluding that the "born alive" rule was archaic and outmoded due to advances in medicine the court concluded that it could not tamper with the criminal law in the absence of legislation. Since the legislature did not include fetuses in the negligent homicide statute, but did include them in assault and manslaughter abortion statutes, the court determined it must refrain from doing so judicially.
[FN64]. Knapp held that causing the death of an "unborn child" is causing the death of a "person."
[FN65]. Mich. Comp. Laws Ann. § 750.324.
In State v. Soto, 378 N.W.2d 625 (Minn. 1985), [FN66] the court held that the words "human being," in the statute describing the offense of causing death by the negligent operation of vehicle while under the influence of alcohol, do not encompass a viable fetus aged 8 1/2 months. [FN67] While operating a motor vehicle in the City of St. Paul, the respondent when allegedly under the influence of intoxicating liquor with a blood alcohol concentration of more than 0.10, negligently drove into an intersection, violently striking a vehicle operated by the mother who was at the time 8 1/2 months' pregnant. The mother sustained a fractured pelvis and a fracture of the left femur, among other injuries. On arrival at the hospital following the accident, a physician, using ultra sound procedures, determined that the heartbeat of the fetus and its position in the uterus were not abnormal. Several hours later, however, the fetal heartbeat was not detectable indicating the child had died in utero. A subsequent Caesarian section resulted in a stillbirth. The fetus, a male, was normally developed and from 36 to 38 weeks in estimated age. The normal delivery time for a human fetus is 40 gestational weeks. An autopsy performed by the medical examiner resulted in a final diagnosis of "intercranial hemorrhage associated with closed head trauma." The medical examiner determined the stillbirth was only attributable to the head injuries the fetus had sustained in the collision. The court's analysis included its acceptance of the common-law, "born alive" rule as the basis for its construction of the vehicular homicide statute not to include a viable fetus as a "human being." The court also noted that its decision in a civil wrongful death case to allow the next of kin of a viable fetus to recover damages for its destruction was limited to wrongful death and did not permit the court to fashion new criminal law which it recognized was the province of the legislature.
[FN66]. In Cuellar the court found that in Soto, and in the cases Soto cites for its statement regarding the widespread application of the "born alive" doctrine, that doctrine prevented a conviction because the victim had never been born alive. However, when the victim is born alive and lives for a period of time before dying from prenatal injuries, the widely used "born alive" doctrine does allow a criminal conviction.
[FN67]. Minn. Stat. Ann. § 609.21.
In the case of State in Interest of A. W. S., 182 N.J. Super. 334, 440 A.2d 1174 (Juv. & Dom. Rel. Ct. 1980), judgment aff'd, 182 N.J. Super. 278, 440 A.2d 1144 (App. Div. 1981), a motion to dismiss the complaint charging a juvenile defendant with criminal homicide and death by auto was dismissed where reckless driving by the defendant caused a stillbirth of the fetus 3 days before the expected full-term delivery, and where the legislative history of the applicable statutes, [FN68] death by auto, was indicative of an intention to exclude the fetus from the class protected by the statutes. The juvenile. was traveling in his car southbound on River Street, Hackensack. At about the same time, the mother was proceeding northbound in the slow lane of River Street. River Street is a 4-lane thoroughfare having 2 lanes for each direction. The juvenile. attempted to pass another car by using the slow lane of traffic. As he moved back into the fast lane, the juvenile careened across 3 lanes of traffic and his car collided with the mother's car which was accelerating from a full stop. The mother was with a term pregnancy, 3 days from the expected date of delivery, and the impact was alleged to have resulted in trauma causing a complete abruption of the placenta and a stillborn fetus. The court rejected application of the United States Supreme Court's decision in Roe v. Wade [See § 2[b]] to a vehicular-homicide case and noted that the homicide and death by auto statutes, do not express a clear intention on the part of the legislature to include a fetus within the protected class thereunder, but to the contrary, the legislative history is indicative of an intention on the part of the legislature to exclude a fetus from the protected class.
[FN68]. N.J. Stat. Ann. § 2C:11-5 which is criminal homicide under N.J. Stat. Ann. § 2C:11-2.
In State v. Willis, 98 N.M. 771, 652 P.2d 1222 (Ct. App. 1982), the trial court properly dismissed a vehicular-homicide prosecution based on the death of an unborn viable fetus, where the fetus was not a human being within meaning of the statute, [FN69] in that the term "human being" was used in the vehicular homicide statute and the legislature had treated human beings and unborn infants differently for over 100 years. Thus, the court determined that it does not follow that the legislature meant to include viable fetus within the definition of human being without specifically making provision therefor. Moreover, the court rejected the state's argument that fetuses should be included because of the presence of the state's abortion statute.
[FN69]. N.M. Stat. Ann. § 66-8-101 (1978) (1982 ***. Supp.).
In the case of People v. Vercelletto, 135 Misc. 2d 40, 514 N.Y.S.2d 177 (County Ct. 1987), the death of an unborn fetus in an automobile accident did not support a charge of second degree manslaughter against the defendant, the court holding that an unborn fetus, viable or otherwise, could not be subject of a charge of manslaughter in the second degree since the definition of "person" within the purview of the homicide statutes, [FN70] did not include an unborn fetus. The defendant was charged with causing the death of the fetus by operating a motor vehicle while intoxicated. The fetus at the time of the incident was an unborn child being carried by her mother, then 7 months' pregnant. The child was stillborn, the People claim, due to the automobile accident caused by the defendant. In reaching its holding the court found that in every case other than illegal abortion, the legislature had ordained that the People were required to prove that the victim is a "person" within the meaning stated in the penal law, [FN71] stating that it is "a human being who has been born and is alive." Moreover, the court opined that what the law ought to be was not within the court's province but the province of the legislature and, therefore, despite all the medical advances made the court was unwilling to take it upon itself to create a new crime.
[FN70]. N.Y. Penal Law § 125.12.
[FN71]. N.Y. Penal Law § 125.05(1).
Conviction of a defendant for homicide by vehicle was held improper on the ground that the victim, a viable fetus, was not within the protection of the statute in State v. Dickinson, 23 Ohio App. 2d 259, 52 Ohio Op. 2d 414, 263 N.E.2d 253 (5th Dist. Stark County 1970), judgment aff'd, 28 Ohio St. 2d 65, 57 Ohio Op. 2d 255, 275 N.E.2d 599 (1971). Affirming the decision of the court of appeals, the Ohio Supreme Court held that a viable unborn fetus is not within the subject of the statute making it a felony to cause the death of another while operating a vehicle while under influence of alcohol or drugs. [FN72] The court further held that the defendant, who, while operating a vehicle while under influence of alcohol or drugs, became involved in an accident as a direct result of which a 7-month-old fetus was aborted, could not be properly convicted of vehicular homicide, where the evidence did not indicate that child was born alive. The defendant, was operating a car in an easterly direction on Seventh Street, northwest, in the 1,500 block of Seventh Street, Northwest, Stark County, Ohio. The husband was operating his car on Seventh Street, Northwest, in the 1,500 block of Seventh Street, Northwest, in a westerly direction. In the husband's automobile was the victim who was 7 months pregnant at the time; The defendant, while operating his automobile in an easterly direction in the 1,500 block of Seventh Street, Northwest, attempted to pass another eastbound automobile and pass left of center on said street in the 1,500 block. At this point, the defendant's automobile struck the husband's automobile head-on. Prior to and at the time of the accident, the mother of the unborn child, had felt life in the unborn child. As a result of the accident, the occupants, of both automobiles were taken to the hospital with various injuries. The victim was admitted to the hospital suffering from contusions and multiple lacerations of the chest and abdomen and a fracture of the left knee. Later the victim aborted an infant baby girl. An autopsy was performed at the hospital. The coroner ruled that the death of the infant was due to hypoxia, due to placental hemorrhage, due to uterine contusion, as a direct result of the accident. The doctor determined that the fetus was compatible with that of a 7-month pregnancy and the testimony of the doctor would be that this 7-month-old fetus was--medically speaking--a viable child at the time of the accident, and was capable of sustaining life outside of her mother's body. Explaining that it was well settled at common law that an unborn fetus, viable or otherwise, could not be the subject of homicide, the court concluded that the word "person" was used in the statute in its common-law sense, and thus did not include the victim in the instant case. Moreover, concluded the court, even assuming the statutory term to be ambiguous, the same result would follow under the rule that ambiguous criminal statutes were to be construed in favor of the accused.
[FN72]. Ohio Rev. Code Ann. § 4511.181.
In the case of State v. Amaro, 448 A.2d 1257 (R.I. 1982), the court held that a fetus is not a "person" within the meaning of the state's vehicular homicide statute. [FN73] The defendant's car collided with the mother's who was 9 months pregnant and who delivered a stillborn fetus at the hospital where she was taken immediately after the accident. The court pointed out that the statute was penal in nature and had to be strictly construed. It also noted that the workers' compensation and the feticide statutes made clear reference to fetuses as persons in contrast to the vehicular homicide statute which did not make any such reference. The court stated that in Rhode Island it is only by legislative action that the unborn child will acquire the status and protection under our criminal statutes which are thus far denied by common law and rules of statutory interpretation.
[FN73]. R.I. Gen. Laws § 31-27-1. Driving so as to endanger, resulting in death.
(a) When the death of any person ensues as a proximate result of an injury received by the operation of any vehicle in reckless disregard of the safety of others, the person so operating the vehicle shall be guilty of "driving so as to endanger, resulting in death."
(b) Any person charged with the commission of the foregoing shall upon conviction be imprisoned for not more than ten (10) years.
In State v. Evans, 745 S.W.2d 880 (Tenn. Crim. App. 1987), a 30-week-old fetus which was sufficiently viable to have had a 90 to 95% likelihood of survival outside the womb at the time of an automobile accident was found by the court not a "person" or a "human life" within the meaning of the vehicular homicide statute. [FN74] The charges resulted from an automobile accident when the defendant, driving north in the southbound lane on Interstate Highway 24, collided head-on with another vehicle, causing serious and extensive injuries to a female passenger. This woman was approximately 8 months pregnant. The evidence showed that the child was viable, that is living. The medical proof was that the force of the impact caused a placental abruption, or a separation of the placenta from the uterus, cutting off the life-support system of the 35 1/2-week-old fetus causing death from asphyxiation. The physician attending the mother after the accident testified that the baby had a 90 to 95% likelihood of survival outside the womb at the time of the placental abruption. A police officer testified that the defendant smelled of alcohol at the scene of the accident. A toxicologist's report indicated the defendant's blood alcohol level to be .17% immediately after the accident. The court found that the legal definition of a person did not include a fetus and noted that the legislature's failure to include the term "fetus" in the vehicular homicide statute in conjunction with the words "another," "person" or "human life" implied an intent not to consider them synonymous. Accordingly, the court determined that for them to rule otherwise would amount to judicial legislation. Also, the court observed that although the trend seemed to be growing toward more liberal construction of homicide statutes, the vast number of states continued to abide by the old common law definition of homicide which excludes an unborn fetus as a person, viable or otherwise. Finally, the court rejected evidence by the medical community that the common-law "born alive" rule had lost its reason for being and should be abandoned. citing the state supreme court's ruling that in the absence of a statute dealing with the subject the state was bound by the common law definition of a reasonable creature in being and that an unborn child could not be the subject of homicide until it has an existence independent of its mother. [FN75]
[FN74]. Tenn. Code Ann. § 39-2-231.
[FN75]. Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923).
In the case of State v. Larsen, 578 P.2d 1280 (Utah 1978), the court upheld its previous view that under the statute which provides that criminal homicide constitutes automobile homicide if the actor, while under the influence of intoxicating liquor, a controlled substance, or any drug, to a degree which renders the actor incapable of safely driving a vehicle, causes the death of another by operating a motor vehicle in a negligent manner that an unborn fetus was not "another" within meaning of that statute. [FN76] The evidence showed that the defendant, while driving his car in excess of 100 miles an hour, collided with a second car, driven by the husband, traveling in the same direction. Both cars overturned. All 4 passengers in the husband's car, the husband, his pregnant wife, and their 2 children sustained injuries, but there were no fatalities other than the fetus. Officers, who had been pursing defendant because of his excessive speed, arrived on the scene immediately after the collision. They testified that defendant had a strong odor of alcohol about him. Evidence produced at the trial showed defendant's alcoholic blood content to be 0.13% . At the time of the incident, the wife had been pregnant for approximately 26 weeks. The mother had felt fetal movement shortly before the collision, but felt no such movement afterwards. The entire family was taken to a hospital and treated for injuries. A medical doctor, a certified gynecologist, examined the wife and determined that the unborn baby was dead. As soon as the mother recovered sufficiently from her injuries, labor was induced and the baby was stillborn. The doctor testified that the fetus weighed approximately 1 1/2 pounds and that a fetus of that size had approximately 25% chance of survival outside the womb. It was the doctor's opinion that a traumatic blow could have been the cause of death of the infant. The court upheld the view that in the absence of statute, the terms "person," "human being," and "another," in context of "person," do not include an unborn fetus for purposes of the crime of homicide.
[FN76]. Utah Code Ann. § 76-5-207 (1953).
IV. Conviction under Feticide Statute
A. View Requiring Intent to Kill or Cause Great Bodily Harm to Mother or Unborn
Child
§ 9. Intent established
Courts construing feticide statutes held or recognized in the following cases that an essential element of the offense is that the injuries be inflicted with a malicious intent to kill the mother, or to kill the unborn child, and upheld the conviction under the statute based on a finding that such intent was established.
In People v. Bunyard, 45 Cal. 3d 1189, 249 Cal. Rptr. 71, 756 P.2d 795 (1988), as modified on denial of reh'g, (Sept. 1, 1988), a jury convicted the defendant of the first-degree murders of his wife and her healthy full-term fetus pursuant to Cal.Penal Code § 187. The deceased was discovered dead in the garage of her home from a massive shotgun wound to the head, and her full- term fetus had suffocated moments later from the resulting lack of oxygen. Evidence was uncontroverted that the defendant hired an accomplice to kill his wife for several reasons including his belief that she was pregnant by another man. The court stated that a finding of first-degree murder on a theory of premeditation and deliberation is proper only when the slayer killed as the result of careful thought and weighing of considerations, as a deliberate judgment or plan, carried on coolly and steadily, especially according to a preconceived design. The type of evidence which sustains a finding of premeditation and deliberation falls into 3 categories, one of which is planning activity: facts prior to the killing which would show that the defendant was engaged in activity directed toward the killing, or had a preconceived design to take the victim's life. The court found that the same evidence that demonstrated the defendant's deliberate and premeditated decision to kill his wife also constituted sufficient evidence of his plan and intent to kill the baby she was carrying, and that it was not possible that defendant, living with his 9-month pregnant wife at the time, could have intended to kill only her, and not have intended to kill the baby as well. The record showed that defendant conceived of this plan knowing that his wife was pregnant and that he provided the shotgun. The court held that it was inconceivable that defendant intended to kill his wife and not her unborn child under the facts of the case. Based on the accomplice's testimony that the defendant's murder plan was that his pregnant wife should die by means of close range shotgun blast to simulate a suicide, that the defendant conceived of the plan knowing that his wife was pregnant, provided a shotgun, and continued to urge the accomplice to carry out the murder plan as the baby's birth drew nearer, the court found that there was sufficient evidence of express malice to support the defendant's conviction of first-degree murder of the fetus that his wife was carrying at time of her murder.
In People v. Dennis, 17 Cal. 4th 468, 71 Cal. Rptr. 2d 680, 950 P.2d 1035 (1998), reh'g denied, (Apr. 15, 1998) and cert. denied, 1998 WL 480688 (U.S. 1998), the court upheld the conviction and imposition of the death penalty for the murder of a mother and a fetus finding that the evidence in this case was sufficient to establish that the defendant acted with express malice towards the fetus. On Halloween night, October 31, 1984, the defendant went in disguise to the home where his former wife lived with her husband and their 4-year-old daughter. The defendant attacked his former wife with a machete or similar weapon after she opened the door to him. She was 8 months' pregnant. She suffered severe cuts to her abdomen, uterus, placenta, and the umbilical cord. The fetus suffered severe chopping wounds and was expelled from her womb. The fetus was found dead at the scene and the former wife died in the ambulance on the way to the hospital. Although examination of the fetus' lungs demonstrated they had never been expanded, and there was no air in them and that the fetus never breathed or lived independently of the decedent, Cal.Penal Code § 187, specifically makes it unlawful to kill a fetus. Therefore, the court stated that willful, deliberate, and premeditated murder creates the utmost danger to society and the fact that the victim murdered is an unborn child does not render the defendant less culpable, or the crime less severe, in light of the legislature's determination that viable fetuses receive the same protection under the murder statute as persons.
In People v. Smith, 188 Cal. App. 3d 1495, 234 Cal. Rptr. 142 (5th Dist. 1987), review denied, (Apr. 16, 1987) and cert. denied, 484 U.S. 866, 108 S. Ct. 188, 98 L. Ed. 2d 140 (1987), the court determined that the act of killing a woman known by the defendant to be pregnant constituted multiple murder entitling the People to file multiple-murder changes with a special circumstance allegation. The defendant killed the pregnant woman with a hatchet with which he struck her multiple times. The fetus was determined by the medical authorities to have been between 28 and 30 weeks gestational age with an 85% chance of survival outside the womb. The fetus was also found to have died as a result of oxygen deprivation resulting from the death of the mother and was in all other respects normal. In reaching its decision that special circumstances applied the court found an intent to kill as a matter of law arising from the method of killing employed by the defendant. Furthermore, the very purpose of the murder according to the defendant's confession to a friend was to free the husband of the encumbrance of a wife and a child so that the husband could pursue a ministerial career. The defendant was the husband's best friend. The defendant knew the victim and knew that she was pregnant. In his confession the defendant expressed contempt for the fact that the husband had to marry the victim because she was pregnant. The very motivation for the murder was the pregnancy itself. This was not a murder of an expectant mother the murderer did not know and could not recognize as pregnant. If the jury convicted him of first-degree murder of both the victim and of the fetus, as it did, the defendant necessarily had the intent to kill both the mother and the child. The court also noted that in order for there to be a conviction for killing a fetus pursuant to Roe v. Wade, the fetus must have been viable and that the term "viability" had no common meaning. [FN77]
[FN77]. Note, however, that in People v. Davis, 19 Cal. Rptr. 2d 96 (App. 4th Dist. 1993), review granted and opinion superseded, 22 Cal. Rptr. 2d 688, 857 P.2d 1098 (Cal. 1993) and judgment aff'd, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994), the court rejected viability as an element of the crime. See § 12 for a discussion of Davis.
Although it is not altogether clear that the court required proof of a malicious intent to kill, in Williams v. State, 34 Fla. 217, 15 So. 760 (1894), wherein, affirming a conviction for manslaughter under a statute providing that the willful killing of an unborn, quick child by any injury to the mother, which injury would be murder if it resulted in the death of the mother, shall be deemed manslaughter, the court rejected allegations of error predicated in part upon the alleged insufficiency of the evidence to sustain a charge that the defendant assaulted the woman with a premeditated design to cause her death. The court observed that the offense was established by evidence that the defendant had committed an unprovoked and cruel assault and battery upon his wife with a club of such dangerous dimensions that it might have caused her death; that his wife was in an advanced state of pregnancy at the time of the attack; that he threatened to kill her; that the injury to the mother caused the premature birth and death of the child; and that the injury to the mother was inflicted by the defendant under such circumstances as would have made it murder had the injury resulted in the death of the mother.
In the case of People v. Shum, 117 Ill. 2d 317, 111 Ill. Dec. 546, 512 N.E.2d 1183 (1987), cert. denied, 484 U.S. 1079, 108 S. Ct. 1060, 98 L. Ed. 2d 1022 (1988), reh'g denied, 485 U.S. 1015, 108 S. Ct. 1492, 99 L. Ed. 2d 719 (1988), the court upheld a conviction for both murder and feticide based on the defendant's single action of killing the mother. The defendant raised 5 questions regarding the constitutionality of the feticide statute: Does the statute (1) fail to provide an adequate definition of the stage at which culpability is triggered; (2) arbitrarily and irrationally allow unqualified physicians to conduct the fetal autopsy; (3) improperly express a policy wholly inconsistent with that of this state's abortion statute; (4) arbitrarily and irrationally distinguish between the mens rea requirements for feticide and murder; and (5) arbitrarily and capriciously fail to reflect the expressed intent of the legislature? [FN78] The defendant contended that while feticide is identical in many respects to murder, [FN79] an arbitrary and irrational distinction exists between the mens rea requirements for feticide and murder. The court determined, however, that the exclusion of transferred-intent cases from the feticide statute was a rational decision by the legislature. An offender may be charged with feticide only where "he knew, or reasonably should have known under all of the circumstances, that his victim was pregnant. [FN80] In the case of an offender who intended to injure another, but instead harmed a pregnant woman, this element would be difficult, if not impossible, to establish. In addition, the court added, restricting feticide to cases involving an intent to do great bodily harm to the mother was rational because it is highly unlikely that anyone could kill a fetus without intending to inflict serious harm on the mother. Thus, the exclusion of cases where the mens rea is not directed toward the mother would be a logical step for the drafters to have taken. The court determined that it was also logical to exclude cases involving voluntary manslaughter and reckless conduct because these offenses involved a less culpable mental state than that required by the feticide statute.
[FN78]. The issue of viability in Shum is discussed in § 11[b].
[FN79]. Compare Ill. Rev. Stat. ch. 38 P 9-1 (1981), with Ill. Rev. Stat. ch. 38 P 91.1 (1981).
[FN80]. Ill. Rev. Stat.1981, ch. 38 P 9-1.1(a)(4).
In People v. Kuchan, 219 Ill. App. 3d 739, 162 Ill. Dec. 240, 579 N.E.2d 1054 (1st Dist. 1991), appeal denied, 142 Ill. 2d 660, 164 Ill. Dec. 923, 584 N.E.2d 135 (1991), the defendant who choked his wife to death was properly convicted under both the feticide statute and the subsequently enacted intentional homicide of unborn-child statute, [FN81] where the wife was 7 to 8 months pregnant and fetus would have been viable with immediate medical intervention. The state originally charged the defendant under the feticide statute but nol prossed the charges and indicted the defendant again under the subsequently enacted intentional murder of an unborn child statute. The evidence established, both through defendant's confession and other testimony, that the defendant choked his wife to death At the time of her death, the deceased was approximately 7 months' pregnant. The crime was committed in the parties' apartment. In his confession, the defendant stated that the deceased complained to him about his use of cocaine, they argued, and he choked her to death. For 3 days, defendant left the deceased's body in the bathroom, and told no one about what happened. During those 3 days, defendant used cocaine, drank beer, and watched television. In determining that the defendant was guilty under both statutes the court noted that the intentional homicide statute which was enacted to replace the feticide statute extended coverage of the law to include any time from fertilization to birth instead of one capable of sustaining life outside of the womb, thus plugging the loophole in the feticide statute requiring viability.
[FN81]. The statue states in Ill. Rev. Stat. § 9-1.1. Feticide. (a) A person commits the offense of feticide who causes the death of a fetus if, in performing the acts which caused the death, he, without lawful justification: (1) either intended to kill or do great bodily harm to the mother carrying the fetus or knew that such acts would cause death or great bodily harm to the mother; or (2) he knew that the acts created a strong probability of death or great bodily harm to the mother; or (3) he was attempting or committing a forcible felony against the mother other than voluntary manslaughter; and (4) he knew, or reasonably should have known under all of the circumstances, that the mother was pregnant (b) For purposes of this Section, "fetus" means a fetus which the physician or pathologist performing the fetal autopsy determines, based upon the particular facts of the case before him, to have been capable, at the time of its death, of sustained life outside of the mother's womb with or without life support equipment, and such capacity for sustained life is proven beyond a reasonable doubt. ... Ill. Rev. Stat. ch. 38 P 9-1.1 (1985) (Repealed by Ill. Pub. Act 84-1414 § 2, eff. Sept. 19, 1986; Ill. Pub. Act 85-293 Art. II § 21, eff. Sept. 8, 1987).
The newly enacted statute designed to replace the feticide statute provides: 9- 1.2. Intentional Homicide of an unborn child. (a) A person commits the offense of intentional homicide of an unborn child if, in performing acts which cause the death of an unborn child, he without lawful justification: (1) either intended to cause the death of or do great bodily harm to the pregnant woman or her unborn child or knew that such acts would cause death or great bodily harm to the pregnant woman or her unborn child; or (2) he knew that his acts created a strong probability of death or great bodily harm to the pregnant woman or her unborn child; and (3) he knew that the woman was pregnant.
(b) For purposes of this Section, (1) "unborn child" shall mean any individual of the human species from fertilization until birth, and (2) "person" shall not include the pregnant woman whose unborn child is killed. Ill. Rev. Stat. ch. 38 P 9-1.2 (1987).
In People v. Ford, 221 Ill. App. 3d 354, 163 Ill. Dec. 766, 581 N.E.2d 1189 (4th Dist. 1991), habeas corpus granted, 888 F. Supp. 909 (C.D. Ill. 1995), rev'd, 104 F.3d 926 (7th Cir. 1997), the court upheld the defendant's conviction stating that a conviction under the fetal homicide statute was supported by evidence that the defendant knew the victim was pregnant, that the defendant had the required intent to cause the death of the unborn child, and that the fetus was alive prior to the defendant's actions and then died. The defendant, after an argument with his pregnant stepdaughter, apparently kicked her in the abdomen causing a placental hemorrhage which, in turn, caused the death of the fetus which was until that time alive and felt kicking by the stepdaughter.
See, also, State v. Keller, 592 So. 2d 1365 (La. Ct. App. 1st Cir. 1991), writ denied, 594 So. 2d 878 (La. 1992), discussed further in § 4[c], in which the court stated that the killing of an unborn child might constitute feticide under statute. [FN82]
[FN82]. La. Rev. Stat. Ann. §§ 14:32-5, 14:32.8.
§ 10. Intent not established
[a] Based on failure to establish actual knowledge of pregnancy
In the following case the court held that the defendant's actual knowledge of the pregnancy was essential to support a conviction under the feticide statute and that a conviction was not warranted, because no such intent was established.
In People v. Gillespie, 276 Ill. App. 3d 495, 213 Ill. Dec. 382, 659 N.E.2d 12 (1st Dist. 1995), the court held that the defendant's actual knowledge of pregnancy is an essential element of the intentional homicide of an unborn child, but the fact that the defendant's first blow during the beating was to the woman's lower abdomen did not support an inference that the defendant had actual knowledge of the pregnancy. The mother was 7 months pregnant. She was not married. The mother lived with her 2-year-old son. The defendant was the father of the child she was carrying and of the 2-year-old son. At 7 o'clock that morning, the mother woke up. She could feel the baby moving inside her. At about 9 o'clock that morning, the mother came to the defendant's apartment. He was angry with the mother because she had told his mother he was not working. In addition, he was supposed to give her some money to cover a check she had written for a car. She told him she was going to call the dealer and stop payment on the check. They argued. She was standing at the door of her apartment. The defendant stood in the hallway outside the apartment. The defendant became extremely angry. He kicked her in the stomach, in the area where she was carrying the baby. As the mother doubled over, the defendant pushed her into the apartment and locked the door. The mother screamed and tried to get out of the apartment. The defendant grabbed the mother by the neck and shoved her toward the bedroom. He beat her about the head and back and then pushed her against the radiator. The mother fell, but the defendant continued the assault. Eventually, the defendant walked out. The mother got up and made her way to a pay phone. She called the police. Despite the foregoing evidence, in its conclusions the court noted that the pregnancy was not said to be observable, the mother and the defendant did not live together and they had no ongoing sexual relationship. This failure of proof obviated a finding that there was knowledge of the pregnancy by the defendant essential for a conviction under the feticide statute.
[b] Based on other circumstances
It was held in the following cases that inasmuch as the evidence was insufficient to establish that an assault upon a pregnant woman was made with a malicious intent to kill her, a conviction for the statutory offense of feticide could not be sustained.
In Passley v. State, 194 Ga. 327, 21 S.E.2d 230 (1942), the court held in reversing the defendant's conviction of feticide on the ground that the indictment was fatally defective, that to charge a commission of the crime of feticide under the Georgia statute the indictment must allege that the injury inflicted upon the mother of the unborn child was done with malice and with an intent to kill the mother. The defendant beat the mother with a stick on the arms, legs and the body killing the fetus, but not the mother. The indictment which failed to charge that the injury inflicted upon the mother of the unborn child was done with malice and with intent to kill the mother, was insufficient to charge the accused with the offense defined in the statute and the evidence supporting a guilty verdict under the statute, the beating, apparently was insufficient. An unborn child is not such a "human being" that its unlawful killing with malice aforethought would constitute "murder" within the general statutes defining murder. [FN83] In construing the feticide statute, [FN84] the court declared that the chief elements of that offense are the willful killing of the unborn child by any injury inflicted upon the mother of such child, "which would be murder if it resulted in the death of such mother." The quoted language of the section means that the injury must be inflicted upon the mother with malice and with intent to kill the mother. Where here the defendant was charged with an offense under the feticide statute he could not be convicted of murder under the general statutes defining murder since the killing of an unborn child does not constitute the killing of a human being and having merely beaten his wife with a stick he could not be convicted under the feticide statute as well.
[FN83]. Ga. Code Ann. § 26-1002.
[FN84]. Ga. Code Ann. § 26-1103.
In State v. Harness, 280 S.W.2d 11 (Mo. 1955), evidence of the defendant's intent was held insufficient to sustain his conviction of manslaughter of an unborn, quick child under the Missouri feticide statute [FN85] providing that the willful killing of an unborn child by any injury to the mother of such child, which injury would be murder if it resulted in the death of the mother, is deemed manslaughter. The evidence showed that a woman with whom the defendant was living suffered a miscarriage within a week after a scuffle with the defendant over $2. Observing that it was not even shown that the defendant struck the woman, the court explained that although the evidence established that the defendant had committed an assault and battery on the woman, it did not support an inference either of malice or of an intention to kill or to do great bodily harm.
[FN85]. Mo. Stat. Ann. § 559.090 (1949).
B. Views Regarding Requirement that Fetus be Viable
§ 11. Viability requirement adopted
In the course of rejecting the defendant's constitutional attack on the feticide statute's definition of viability, the court in the following case determined that the fetus was viable and, accordingly, upheld the feticide conviction.
In the case of People v. Shum, 117 Ill. 2d 317, 111 Ill. Dec. 546, 512 N.E.2d 1183 (1987), cert. denied, 484 U.S. 1079, 108 S. Ct. 1060, 98 L. Ed. 2d 1022 (1988), reh'g denied, 485 U.S. 1015, 108 S. Ct. 1492, 99 L. Ed. 2d 719 (1988), the court upheld a conviction for both murder and feticide based on the defendant's single action of killing the mother. The defendant raised 5 questions regarding the constitutionality of the feticide statute: Does the statute (1) fail to provide an adequate definition of the stage at which culpability is triggered; (2) arbitrarily and irrationally allow unqualified physicians to conduct the fetal autopsy; (3) improperly express a policy wholly inconsistent with that of this state's abortion statute; (4) arbitrarily and irrationally distinguish between the mens rea requirements for feticide and murder; and (5) arbitrarily and capriciously fail to reflect the expressed intent of the legislature? As to the first question, the defendant noted that the statute's definition of "fetus," is based upon shifting medical opinion as to "viability" or the point at which life can be sustained outside the mother's womb. Thus, he contended that the statute failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden. However, the court found that the defendant was without standing to raise the issue since on the facts of this case, there could be no shifting of medical opinion as to whether this fetus was capable of sustained life with or without special attention. This was a full-term fetus; the mother was 4 days past her due date and in the early stages of labor. The fetus' head was engaged in its mother's pelvis ready for delivery in a short time. Thus, the defendant was not within the class of offenders who could question the statute's definitions. The defendant noted that in section 1 of the Illinois Abortion Law of 1975, [FN86] the legislature declared that it was the "policy of this state to protect the right to life of the unborn child from conception. The defendant argued that the feticide statute's requirement of viability, which excluded from prosecution persons who caused the termination of a fetus after conception, but prior to the point of viability or who caused the termination of a fetus without the requisite intent to harm the mother, cannot be reconciled with the policy expressed in the Illinois Abortion Act. Thus, the defendant maintained that the feticide statute should be found unconstitutional. The court concluded that the defendant's contention was without merit since these 2 statutes address widely different interests in what must be considered proper terms for each. In addition, the feticide statute is not inconsistent with any permissible policy of the Illinois General Assembly. The court noted first that the Supreme Court has held that abortion is a constitutionally protected right. [FN87] This decision was based upon the proper balance between protecting a woman's right of privacy and enforcing the state's interest in protecting health, maintaining medical standards, and protecting potential life. The feticide statute on the other hand, sought to protect a pregnant mother and her unborn child from the intentional wrongdoing of a third party. In accomplishing this purpose, the legislature had chosen to punish the third party not only for any injury to the woman, but also for the death of her viable fetus. Secondly, in stating the policy noted above, the legislature was indicating its belief that a mother should not at any time have the option to voluntarily terminate her pregnancy, except when necessary to protect her life. The legislature went on to state, however, that this policy was impermissible under the Supreme Court's decisions. Thus, there is no inconsistency between the 2 statutes. The defendant also argued that several facts in this action raised a reasonable doubt as to whether the fetus was capable of "sustained life." The defendant pointed to 3 indicators that the fetus was not viable: (1) the fetus' less-than-average weight; (2) the fact that the autopsy was an external one only; (3) and the mother's previous miscarriage. The medical testimony presented at trial, however, did not support the defendant's assertions. As to the defendant's argument that his feticide conviction must be reversed because it arose from the single physical act of killing the mother the court held that although convictions may not be entered on multiple offenses stemming from the same act here there were 2 distinct victims of the defendant's single action and separate victims require separate convictions and sentences. In addition, the court noted that the crime of feticide is not a lesser included offense of murder. [FN88]
[FN86]. Ill. Rev. Stat. ch. 38 P 81-21 (1981).
[FN87]. Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147.
[FN88]. The issue of intent in Shum is discussed in § 9.
§ 12. Viability requirement rejected
In the following cases the courts rejected any requirement that the fetus be viable in order to obtain a conviction under the feticide statute.
See People v. Apodaca, 76 Cal. App. 3d 479, 142 Cal. Rptr. 830 (5th Dist. 1978) (abrogated by, People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994)), where the court rejected a claim by the defendant that the state can charge murder of an unborn child only if the fetus is viable when killed. The defendant raped and repeatedly punched his 22-to 24-week pregnant former wife, telling her he succeeded in killing the fetus. The court observed that a fetus is viable when it can stand the trauma of birth which, in this case, the medical evidence supported. [FN89]
[FN89]. In Davis the court clearly held viability is no longer an element of the crime of feticide. The court in People v. Davis stated that the Apodaca court held that it need not reach the constitutional question whether the trial court had erred in failing to define the word "fetus" in terms of viability because uncontroverted medical testimony had indicated during the trial that the fetus was viable at the time it was murdered.
In People v. Davis, 19 Cal. Rptr. 2d 96 (App. 4th Dist. 1993), review granted and opinion superseded, 22 Cal. Rptr. 2d 688, 857 P.2d 1098 (Cal. 1993) and judgment aff'd, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994), the court held that viability is not an element of the crime of fetal homicide. [FN90] According to the court, the third-party killing of a fetus with malice aforethought is "murder" under Cal. Penal Code § 187(a), as long as the state can show that the fetus has progressed beyond the embryonic stage of 7 to 8 weeks. [FN91] The mother, who was 6 months' pregnant, went to a check-cashing business to cash her welfare check. As she left the business with $378 in cash, she was accosted by the defendant who pulled a gun from the waistband of his pants and demanded her money. When the mother refused, the defendant grabbed for her purse, shot her in the chest at close range and then fled. Subsequently, the mother underwent surgery to save her life. Small holes in her uterine wall were sutured to prevent bleeding, but no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn, the result of the mother's loss of blood, low-blood pressure, and state of shock. At trial, experts estimated the fetus's gestational age variously at 23 to 25 weeks. The charges levied against the defendant included an allegation he had murdered the fetus. The trial court instructed the jury that "[a] fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid." On review the appellate court held that fetal viability was not necessary, but that the error in the instruction required a remand since the defendant was entitled to be tried under the old law which considered viability as an element of the crime. In reaching its holding the court reasoned that the Roe decision does not require the conclusion that the killing of a previable fetus without the mother's consent cannot constitute murder. Roe only requires that the state not prohibit the mother from destroying a previable fetus. The court also stated that in their view of the teachings of Roe do not apply to a situation where a third party kills a fetus without the mother's consent. When the state's interest in protecting the life of a developing fetus is not counterbalanced against a mother's privacy right to an abortion, the state's interest should prevail. On review the Supreme Court vacated the appellate court's decision and expressly held that viability was no longer an element of the crime of fetal homicide.
[FN90]. See People v. Hamilton, 48 Cal. 3d 1142, 259 Cal. Rptr. 701, 774 P.2d 730 (1989), as modified on denial of reh'g, (Aug. 17, 1989) and cert. denied, 494 U.S. 1039, 110 S. Ct. 1503, 108 L. Ed. 2d 638 (1990), reh'g denied, 495 U.S. 924, 110 S. Ct. 1961, 109 L. Ed. 2d 323 (1990), holding the fetus had attained viability without deciding whether viability was a requirement.
[FN91]. Note that this is in apparent conflict with the holdings in People v. Bunyard, 45 Cal. 3d 1189, 249 Cal. Rptr. 71, 756 P.2d 795 (1988), as modified on denial of reh'g, (Sept. 1, 1988), and People v. Dennis, 17 Cal. 4th 468, 71 Cal. Rptr. 2d 680, 950 P.2d 1035 (1998), reh'g denied, (Apr. 15, 1998) and cert. denied, 1998 WL 480688 (U.S. 1998), (see § 9 for a discussion of Bunyard and Davis) where the same court implies that viability is an element of the crime of fetal homicide. Further, in both Bunyard and Dennis, the court repeatedly incorporates the fact of the viability of the fetus into its legal analysis and conclusions.
In the case of State v. Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied, 496 U.S. 931, 110 S. Ct. 2633, 110 L. Ed. 2d 653 (1990) and on subsequent appeal, 1991 WL 151374 (Minn. Ct. App. 1991), review denied, (Sept. 25, 1991), the court recognized that the state had an interest in protecting the "potentiality of human life" whether an embryo or a fetus, whether viable or nonviable in answering the following certified question: Do Minn. Code Ann. §§ 609.2661(1), 609.2662(1) (1988)--the unborn child homicide statutes--violate the Fourteenth Amendment of the United States Constitution as interpreted by the United States Supreme Court in Roe v. Wade, by failing to distinguish between viable fetuses and nonviable fetuses and embryos, and by treating fetuses and embryos as persons? The pertinent facts as found by the court were that the victim died from gunshot wounds allegedly inflicted by the defendant. An autopsy revealed that the victim was pregnant with a 27- or 28-day-old embryo. The coroner's office concluded that there was no abnormality which would have caused a miscarriage, and that death of the embryo resulted from the death of the victim. At this stage of development, a 28-day-old embryo is 4 to 5 millimeters long and, through the umbilical cord, completely dependent on its mother. The victim's embryo was not viable. Up to the eighth week of development, it appeared that an "unborn child" was referred to as an embryo; thereafter it was called a fetus. The evidence indicated that medical science generally considered a fetus viable at 28 weeks following conception although some fetuses as young as 20 or 21 weeks have survived. The record did not clearly indicate whether either the victim or the defendant knew she was pregnant at the time she was assaulted. The court noted that protected, also, was the woman's interest in her unborn child and her right to decide whether it shall be carried in utero. The state must prove only that the implanted embryo or the fetus in the mother's womb was living, that it had life, and that it had life no longer. To have life, as that term is commonly understood, means to have the property of all living things, namely to grow, to become. It is not necessary to prove, nor does the statute require, that the living organism in the womb in its embryonic or fetal state be considered a person or a human being. People are free to differ or abstain on the profound philosophical and moral questions of whether an embryo is a human being, or on whether or at what stage the embryo or fetus is ensouled or acquires "personhood." These questions, the court opined, were entirely irrelevant to criminal liability under the statute. Instead, the court found that criminal liability here requires only that the genetically human embryo be a living organism that is growing into a human being. [FN92]
[FN92]. The defendant's challenge to the constitutionality of the statute on vagueness grounds is treated in § 13 and his challenge on equal protection grounds is discussed in § 14.
C. Challenges to Validity or Application of Feticide Statutes
§ 13. Vagueness
In the following cases feticide statutes were upheld as against challenges that they were unconstitutionally vague.
In the case of Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987), a federal habeas corpus action involving the defendant in Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984), related reference, 815 F.2d 1386 (11th Cir. 1987), the court held that the Georgia feticide statute [FN93] prohibiting the willful killing of an unborn child so far developed as to be ordinarily called "quick" was not unconstitutionally vague where Georgia case law had adopted the common-law understanding of "quick," medical and lay testimony at the trial indicated the mother of the unborn child in question was far enough along in her pregnancy for the fetus to be "quick," and the mother herself testified that she had felt and recognized the unborn child move in her prior to its destruction. In determining other constitutional challenges to the feticide statute the court concluded that the statute was not unconstitutionally vague, did not unconstitutionally conflict with the Roe v. Wade ruling that an unborn child was not a "person" within the meaning of the Fourteenth Amendment, as the mother's interests were in no way infringed upon by the feticide statute. Moreover, the court found that the statute did not violate equal protection by creating 2 arbitrary and capricious classifications along with the offense of criminal abortion where the criminal abortion statute did not require actual destruction of the fetus and the feticide statute required an act that would constitute murder if resulting in the death of the mother.
[FN93]. O.C.G.A. §§ 16-5-80, 16-12-140.
In People v. Apodaca, 76 Cal. App. 3d 479, 142 Cal. Rptr. 830 (5th Dist. 1978) (abrogated by, People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994)), see § 12, the court held that the statute defining murder of an unborn child gives all persons of common intelligence ample warning that assault on a pregnant woman without her consent for the purpose of unlawfully killing her unborn child can constitute the crime of murder and, therefore, the statute does not contravene the constitutional due process requirement that persons be given fair notice as to what the state commands or forbids. [FN94] The defendant brutally attacked his former wife punching her repeatedly in the stomach, raping her, and vowing to kill the fetus which he acknowledged after showing the wife all the blood he collected on a towel.
[FN94]. Cal. Penal Code § 187.
In the case of People v. Henderson, 225 Cal. App. 3d 1129, 275 Cal. Rptr. 837 (1st Dist. 1990), reh'g denied, (#A036286)(Dec. 26, 1990) and reh'g denied, (#A036290)(Dec. 27, 1990) and (abrogated by, People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994)), [FN95] the court upheld the feticide statute as against an attack on it as being void for vagueness. [FN96] The defendant shot the mother and the fetus died as a result of the death of the mother; the fetus died of a lack of oxygen after the mother had died. In upholding the statute the court noted that it gives all persons of common intelligence ample warning that an assault on a pregnant woman without her consent for the purpose of unlawfully killing her unborn child can constitute the crime of murder. That the viability of a fetus may be a question of fact, dependent upon the circumstances of the individual case, does not render the statute void for vagueness. Criminal statutes are resplendent with elements containing factual questions dependent upon the particular facts of the case. The court stated that what it was concerned with was whether an individual of common intelligence would recognize that his or her conduct is prohibited by the statute, but determined that the statute provided ample notice. The court further opined that the fact that the courts had interpreted the killing of a fetus in the statute as a "viable fetus" did not render it unconstitutionally vague for lack of a further definition of viability.
[FN95]. The court in People v. Davis held that fetal viability was no longer an element of feticide. See § 12 for discussion of Davis.
[FN96]. Cal. Penal Code § 187.
In Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984), related reference, 815 F.2d 1386 (11th Cir. 1987), the court in upholding the defendants' conviction held that the word "quick," as used in the feticide statute to describe that time during pregnancy after which the killing of the unborn child in a certain manner violates the statute, is not so uncertain and inexact a term as to make enforcement of the statute arbitrary. The court also found that in the feticide statute, a description of the unborn as the "unborn child" is not unconstitutionally vague. [FN97] The mother was at a club in Atlanta. At the time she was in approximately the sixteenth week of pregnancy. She was standing outside the club talking to 2 other people when the defendants arrived. One defendant had a shotgun in his possession and the other 2 possessed pistols. The mother attempted to hide from the defendants, but they ordered her and her companions inside the club. The mother told the defendants she was pregnant and begged them not to hurt her on that account. Inside, the defendants ordered the 3, and others who were there, to lie on the floor. The defendant with the shotgun kept guard while the other defendant took money from those present. The mother was uncomfortable lying face down because of her pregnancy so she changed her position slightly. When she did so the defendant fired the shotgun, striking her in the abdomen injuring her severely and causing the death of the unborn child. This was the second pregnancy of the mother. She was familiar with the feeling of the movement of a child within her body during pregnancy. She felt movement of this unborn child on occasions including the night before the shooting. The medical experts did not know a definite time when movement of an unborn child is possible, but it happens usually around the sixteenth week and at times as early as the tenth week of pregnancy. The court reasoned that quickening is the time when the fetus can move in the mother's womb, a time which is definite and certain enough to avoid a void for vagueness challenge. The court also found that the use of "unborn child" for the fetus in the code did not pose a vagueness problem.
[FN97]. O.C.G.A. § 16-5-80. Feticide; penalty. (a) A person commits the offense of feticide if he willfully kills an unborn child so far developed as to be ordinarily called 'quick' by any injury to the mother of such child, which would be murder if it resulted in the death of such mother. (b) A person convicted of the offense of feticide shall be punished by imprisonment for life.
The court in State v. Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied, 496 U.S. 931, 110 S. Ct. 2633, 110 L. Ed. 2d 653 (1990) and on subsequent appeal, 1991 WL 151374 (Minn. Ct. App. 1991), review denied, (Sept. 25, 1991), held that a statute providing a criminal penalty for the homicide of an unborn child was not unconstitutionally vague and did not violate the Fourteenth Amendment by failing to distinguish between a viable and a nonviable fetus; viability of the fetus was simply immaterial to the feticide statute. The court held that a defendant who assaulted a pregnant woman causing the death of the fetus she was carrying was not similarly situated with a woman who sought to have an abortion, so that the unborn child homicide statutes did not violate the equal protection clause on that basis. The court also determined that the unborn child homicide statutes provided adequate notice to potential violators, even though the violator may not know that the woman who he assaults was pregnant and even though the woman herself may not have been aware of the pregnancy, [FN98] and that the unborn child homicide statutes were not fatally vague for failure to define the phrase "causes the death of an unborn child" on the theory that they leave uncertain when death occurs or when life begins. The pertinent facts as found by the court were that the victim died from gunshot wounds allegedly inflicted by the defendant. An autopsy revealed that the victim was pregnant with a 27- or 28-day-old embryo. The coroner's office concluded that there was no abnormality which would have caused a miscarriage, and that death of the embryo resulted from the death of the victim. At this stage of development, a 28-day-old embryo is 4- to 5-millimeters long and, through the umbilical cord, completely dependent on its mother. The victim's embryo was not viable. Up to the eighth week of development, it appeared that an "unborn child" was referred to as an embryo; thereafter it was called a fetus. The evidence indicated that medical science generally considered a fetus viable at 28 weeks following conception although some fetuses as young as 20 or 21 weeks have survived. The record was unclear as to whether either the victim or the defendant knew she was pregnant at the time she was assaulted. In rejecting the defendant's equal protection argument based on Roe v. Wade the court reasoned that the defendant who assaulted a pregnant woman causing the death of the fetus destroyed the fetus without the consent of the woman. This was not the same as the woman who elected to have her pregnancy terminated by one legally authorized to perform the act. In the case of abortion, the woman's choice and the doctor's actions were based on the woman's constitutionally protected right to privacy. This right encompassed the woman's decision whether to terminate or continue the pregnancy without interference from the state, at least until such time as the state's important interest in protecting the potentiality of human life predominated over the right to privacy, which is usually at viability. Roe v. Wade ( § 2[a]) protects the woman's right of choice; it does not protect, much less confer on an assailant, a third-party, the unilateral right to destroy the fetus. In addition, the court noted that the fetal homicide statutes sought to protect the "potentiality of human life," and they do so without impinging directly or indirectly on a pregnant woman's privacy rights and that the state's interest in protecting the "potentiality of human life" included protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protected, too, the woman's interest in her unborn child and her right to decide whether it would be carried in utero. In considering the defendant's vagueness attack on the statutes the court refused to apply the fair-warning doctrine to support the defendant's claim that the statutes were unconstitutionally vague where neither the defendant nor the victim knew that the victim was pregnant. Finally, the defendant's vagueness attack claiming that the statutes failed to adequately define the phrase "causes the death of an unborn child" was determined by the court to fail, the court stating that "the statutes do not raise the issue of when life as a human person begins or ends." The state must prove only that the implanted embryo or the fetus in the mother's womb was living, that it had life, and that it had life no longer. To have life, as that term is commonly understood, means to have the property of all living things, namely to grow, to become. It is not necessary to prove, nor does the statute require, that the living organism in the womb in its embryonic or fetal state be considered a person or a human being. People are free to differ or abstain on the profound philosophical and moral questions of whether an embryo is a human being, or on whether or at what stage the embryo or fetus is ensouled or acquires "personhood." These questions, the court opined, were entirely irrelevant to criminal liability under the statute. Instead, the court found that criminal liability here requires only that the genetically human embryo be a living organism that is growing into a human being.
[FN98]. Minn. Stat. Ann. §§ 609.2661, 609.2662.
§ 14. Equal protection
In the cases that follow challenges to feticide statutes based on equal protection grounds were rejected by the courts.
In the case of Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987), a federal habeas corpus action involving the defendant in Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984), related reference, 815 F.2d 1386 (11th Cir. 1987), the court held that the feticide statute [FN99] did not violate equal protection by creating 2 arbitrary and capricious classifications along with the offense of criminal abortion where the criminal abortion statute did not require actual destruction of the fetus and the feticide statute required an act that would constitute murder if resulting in the death of the mother.
[FN99]. O.C.G.A. §§ 16-5-80, 16-12-140.
In People v. Ford, 221 Ill. App. 3d 354, 163 Ill. Dec. 766, 581 N.E.2d 1189 (4th Dist. 1991), habeas corpus granted, 888 F. Supp. 909 (C.D. Ill. 1995), rev'd, 104 F.3d 926 (7th Cir. 1997), the defendant challenged the constitutionality of the fetal homicide statute [FN1] and the court upheld its constitutionality finding that the state's important and legitimate interest in protecting the potentiality of human life is a valid legislative purpose justifying the fetal homicide statute even if physicians who perform abortions at the choice of pregnant women are treated differently from third parties who act intentionally against unborn children without consent of the mother, and, thus, the fetal homicide statute did not violate the Equal Protection Clause of the Federal Constitution. The court also upheld the defendant's conviction stating that a conviction under the fetal homicide statute was supported by evidence that the defendant knew the victim was pregnant, that the defendant had the required intent to cause the death of the unborn child, and that the fetus was alive prior to the defendant's actions and then died. The defendant, after an argument with his pregnant stepdaughter, apparently kicked her in the abdomen causing a placental hemorrhage which, in turn, caused the death of the fetus which was until that time alive and felt kicking by the stepdaughter. In reaching the conclusion that the statute did not violate equal protection the court stated that a pregnant woman who chose to terminate her pregnancy and the defendant who assaulted her, causing the death of her fetus, were not similarly situated. A woman consents to the abortion and has the absolute right, at least during the first trimester of the pregnancy, to choose to terminate the pregnancy. A woman has a privacy interest in terminating her pregnancy, but the defendant has no such interest. Moreover, the state had a legitimate interest in protecting the potentiality of human life. The court determined that the defendant's argument that the statute was arbitrary and capricious as to what constituted human life was not relevant in that it was only important that whether the particular entity, whether an embryo, fetus, person, or human being, once had life and, because of the acts of the defendant, no longer did.
[FN1]. Ill. Ann. Stat. ch. 38 P 9-1.2.
In the case of State v. Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied, 496 U.S. 931, 110 S. Ct. 2633, 110 L. Ed. 2d 653 (1990) and on subsequent appeal, 1991 WL 151374 (Minn. Ct. App. 1991), review denied, (Sept. 25, 1991), discussed further in § 13, the court held that a defendant who assaulted a pregnant woman causing the death of the fetus she was carrying was not similarly situated with a woman who sought to have an abortion, so that the unborn child homicide statutes did not violate the equal protection clause on that basis. In rejecting the defendant's equal protection argument based on Roe v. Wade the court reasoned that the defendant who assaulted a pregnant woman causing the death of the fetus destroyed the fetus without the consent of the woman. This was not the same as the woman who elected to have her pregnancy terminated by one legally authorized to perform the act. In the case of abortion, the woman's choice and the doctor's actions were based on the woman's constitutionally protected right to privacy. This right encompassed the woman's decision whether to terminate or continue the pregnancy without interference from the state, at least until such time as the state's important interest in protecting the potentiality of human life predominated over the right to privacy, which is usually at viability. Roe v. Wade protects the woman's right of choice; it does not protect, much less confer on an assailant, a third-party, the unilateral right to destroy the fetus. In addition, the court noted that the fetal homicide statutes sought to protect the "potentiality of human life," and they did so without impinging directly or indirectly on a pregnant woman's privacy rights and that the state's interest in protecting the "potentiality of human life" included protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protected, too, the woman's interest in her unborn child and her right to decide whether it shall be carried in utero.
§ 15. Claim that statute applied to consensual abortion
In the following case a claim that a feticide statute applied to consensual abortion was denied by the court.
In State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994), review dismissed, 513 N.W.2d 408 (Wis. 1994) and appeal after remand, 212 Wis. 2d 240, 568 N.W.2d 784 (Ct. App. 1997), the court held the defendant was properly charged with destroying the life of an unborn, quick child by violently assaulting his wife 5 days prior to her anticipated delivery date, where the words of the statute were plain and unambiguous, even though the defendant alleged that the statute applied only in context of medical abortions. The alleged assault consisted of grabbing the wife by the hair, pulling her backward onto the sofa, and punching her in the abdomen twice, the second time much harder than the first, and causing her a great deal of pain. Despite his wife's pleas, the defendant allegedly refused to call for help or allow his wife to seek help for 15 minutes until she screamed from abdominal pain. When she was finally transported to the hospital, a full-term baby was delivered dead via caesarian surgery. The attending physicians indicated that the baby had bled to death after the placenta was detached from his mother's uterine wall. They further indicated that this injury was consistent with the application of blunt force trauma, such as a punch, to the mother's abdomen. Under the statute in question [FN2] providing in relevant part that any person, other than the mother may be imprisoned not more than 15 years for intentionally destroying the life of an unborn, quick child, the court determined that feticide and not abortion was at issue and, thus, clearly applied to the defendant. In contradistinction to the defendant's argument that the statute was about consensual abortion the court underscored that the case was, in fact, not, in any way, about abortion. Furthermore, in allaying concerns expressed by the defendant and amicus curiae that the statute could be used against a mother or a physician the court opined that the statute proscribing the intentional destruction of the life of an unborn, quick child cannot be used to charge for a consensual abortive type of procedure, given that the statute by its own terms cannot apply to a mother, any attempt to apply the statute to a physician performing consensual abortion prior to viability would be unconstitutional in light of Roe v. Wade, and any attempt to apply it to a physician performing consensual abortion after viability would be inconsistent with the statute limiting such action and establishing penalties for it.
[FN2]. Wis. Stat. § 940.04(2)(a).
V. Conviction under Statutes Establishing Criminal Penalty for Abortion
§ 16. Constitutionality of Statutes [FN3]
[FN3]. In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), for concurring opinion, see, 410 U.S. 179, 93 S. Ct. 755, 35 L. Ed. 2d 147 (1973) and for concurring opinion, see, 410 U.S. 179, 93 S. Ct. 756, 35 L. Ed. 2d 147 (1973) and for dissenting opinion, see, 410 U.S. 179, 93 S. Ct. 762, 35 L. Ed. 2d 147 (1973) and reh'g denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973), discussed further in § 2[a], the United States Supreme Court held that state criminal abortion laws like Texas statutes making it a crime to procure or attempt an abortion except an abortion on medical advice for purpose of saving the life of the mother regardless of the stage of pregnancy violate the due process clause of the Fourteenth Amendment protecting the right to privacy against state action. The court also determined that with respect to the state's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. In reaching this conclusion, the court effectively negated all statutes that considered "quickening" as the point of compelling interest, and thus regulation for the state.
[a] Where penalty applies only to abortion of viable fetus
In the following cases the courts held that state manslaughter by abortion statutes construed as imposing a penalty only for the abortion of a viable fetus were constitutional.
In the case of Wynn v. Scott, 449 F. Supp. 1302 (N.D. Ill. 1978), appeal dismissed, 439 U.S. 8, 99 S. Ct. 49, 58 L. Ed. 2d 7 (1978) and judgment aff'd, 599 F.2d 193 (7th Cir. 1979), the court held that the Illinois Abortion Act, Ill. Rev. Stat. ch. 38 §§ 81-21 et seq., could constitutionally prohibit nontherapeutic abortions after the viability of the fetus, and impose criminal penalties for failure to exercise professional skill in taking the life of a premature infant aborted alive. The plaintiffs alleged that the criminal penalties in § 6(1) and § 6(2) of the act were vague because they also included undefined terms. These sections provide: (1) No person who performs or induces an abortion after the fetus is viable shall fail to exercise that degree of professional skill, care, and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall intentionally fail to take such measures to encourage or to sustain the life of viable fetus or child, and the death of the viable fetus or the child results, shall be deemed guilty of a Class 2 felony. (2) Whoever, with intent to do so, shall take the life of a premature infant aborted alive, shall be guilty of a Class 1 felony. Section 6(1) includes the words "viable fetus" and "child" which are undefined, and § 6(2) includes the words "premature infant aborted alive," which is undefined. "Viable," the court observed, was defined in § 2(2), and this definition was not unconstitutionally vague. The court asserted that it perceived only one difficulty with the absence of definitions for the remaining terms. It was uncertain what life signs must exist to activate the duties and the criminal penalties in § 6(2). If the aborted fetus exhibits only minimal life signs and does not survive long, then it is unlikely that its death could be criminally attributed to the physician. If the fetus is simply too small to survive given reasonable medical care, then the physician performing the abortion could not be guilty of intentional conduct resulting in the death of the fetus within the meaning of § 6(1) or § 6(2). In short, though "aborted fetus" is undefined, there is no doubt as to the conduct which is required. The plaintiffs also asserted that the criminal penalties in the act punished unintentional conduct. Since the court held that § 2(6) was void for vagueness, it found it unnecessary to analyze this contention with respect to that provision. The court pointed out that 3 of the remaining criminal provisions included a specific mental state and did not therefore punish unintentional conduct. Section 3(2) punishes physicians who intentionally fail to inform the woman about to be aborted or who fail to secure a written informed consent. Sections 6(1) and 6(2) both require that the conduct criminalized be intentional. Thus, with respect to these provisions the court determined that the plaintiffs' arguments that the abortion act punished unintentional conduct were erroneous.
In the case of Doe v. Deschamps, 461 F. Supp. 682 (D. Mont. 1976), related reference, 1990 WL 113134 (S.D.N.Y. 1990), the court held that the statute providing that a person who knowingly, negligently, or purposefully causes the death of a premature infant born alive who was viable is liable for a criminal homicide was constitutional. [FN4] "Viable" is defined as "the ability of a fetus to live outside the mother's womb, albeit with artificial aid" The court based its decision on the statutory limitation to viable infants noting that the United States Supreme Court had stated in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976) (overruling on other grounds recognized by, Oliverson v. West Valley City, 875 F. Supp. 1465 (D. Utah 1995)), that a "criminal failure to protect a live-born infant surely will be subject to prosecution in Missouri under the state's criminal statutes."
[FN4]. Mont. Code. Ann. §§ 94-5-615(5), 94-5-617(1) (1947).
In the case of Larkin v. Cahalan, 389 Mich. 533, 208 N.W.2d 176 (1973), the court held that the word "child" as used in the assaultive abortion [FN5] and manslaughter by abortion statutes, [FN6] the word "child" means a viable child in the womb of its mother; that is, an unborn child whose heart is beating, who is experiencing electronically measurable brain waves, who is discernibly moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of the usual medical care and facilities available in the community. The court determined that the question whether the deceased was a living human being at the time of an alleged homicide, like the cause of death itself, is a proper subject of adversary litigation. Scientific and lay evidence is admissible, and the jury can bring to its deliberations its experience in the ordinary affairs of life. The court, by reason of Roe v. Wade, was compelled to rule that as a matter of federal constitutional law, a fetus is conclusively presumed not to be viable within the first trimester of pregnancy, but beyond that point, the burden is, of course, upon the People in a prosecution for manslaughter by abortion to prove beyond a reasonable doubt that the subject of the manslaughter was in fact a viable child en ventre sa mere.
[FN5]. Mich. Comp. Laws Ann. § 750.322; Mich. Stat. Ann. § 28.544.
[FN6]. Mich. Comp. Laws Ann. § 750.323; Mich. Stat. Ann. § 28.555.
[b] Where penalty applies without distinguishing based on viability of fetus
In the following case the court held that the application of a penalty under an abortion statute without distinguishing based on viability rendered the statutory provision invalid.
In the case of Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976) (overruling in part on other grounds recognized by, Oliverson v. West Valley City, 875 F. Supp. 1465 (D. Utah 1995)), a provision of the Missouri abortion statute [FN7] requiring a physician to exercise professional care to preserve a fetus' life and health, failing which he was deemed guilty of manslaughter and was liable in an action for damages, impermissibly required the physician to preserve the fetus' life and health, whatever the stage of pregnancy, and the entire section was held by the court to be unconstitutional. The court determined that the statutory provision requiring a person performing an abortion to exercise the same degree of care as would be required to preserve the life and health of a fetus intended to be born and not aborted was unconstitutionally overly broad for failing to distinguish between a viable and a nonviable fetus. The court further concluded that the fact that the statute further provided for criminal and civil liability where there was failure to take measures to sustain the life of a "child," which failure resulted in the death of the "child," did not limit the statute's application to a viable fetus; moreover, since the 2 provisions were inseparably tied, both were invalid.
[FN7]. Mo. Rev. Stat. § 188.035(1).
§ 17. Applicability of statutes
In the following cases the courts determined that various criminal abortion statutes did not apply to the homicide of an unborn child.
An indictment charging a woman with the felonious killing of her unborn, quick child was held defective under the state manslaughter by abortion statute, in State v. Prude, 76 Miss. 543, 24 So. 871 (1899), wherein the court observed that the indictment did not allege the administration of some medicine, drug, or substance, or the use of some instrument, with intent to destroy the unborn, quick child, and that in any event the taking of any such substance, or the use of any such instrument, by the pregnant woman herself, with intent to destroy the child in her womb, was not covered by the statute.
While reversing on the ground that the conviction of the defendant for the felony of abortion was improper under an information charging the statutory offense of manslaughter by abortion, the court in State v. Sonner, 253 Mo. 440, 161 S.W. 723 (1913), observed that the evidence produced at the first trial was insufficient to sustain a conviction of manslaughter by abortion. Remanding for a new trial, the court observed that while the present information charged the defendant with inducing an abortion by the administration of certain drugs and medicines, the evidence tended to show that the severing of the head of the fetus, prior to its delivery, was perhaps the probable cause of its death.
In the case of People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1st Dep't 1990), on reconsideration, appeal denied, 76 N.Y.2d 1021, 565 N.Y.S.2d 771, 566 N.E.2d 1176 (1990), the court found that there was absolutely nothing to indicate that by adopting the abortion provisions of the Penal Law, that the legislature endeavored to protect persons, such as the defendant, who shoot a pregnant woman, whether deliberately or recklessly, from liability under the homicide statutes if the baby is born alive and subsequently expires from its prenatal wounds. [FN8] The Penal Law [FN9] defines an "abortional act" as "an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female." Therefore, an essential element of an abortion is that the one carrying out the act must possess the intent to cause a miscarriage; that is, to kill the fetus prior to its birth. Here, the court concluded, under no reasonable construction of the law could the various abortion sections be deemed to apply to the defendant herein. In fact, the court opined that the very language of the Penal Law, which recites that a "person" for purposes of the homicide provisions is a human being who has been born and is alive, contradicted the defendant's contention that the legislature abrogated the "born alive" rule when it enacted the abortion statutes. [FN10]
[FN8]. The full facts of People v Hall are found in the discussion of the case in § 5.
[FN9]. N.Y. Penal Code § 125.05(2).
[FN10]. N.Y. Penal Code § 125.05(1).
Research References
Total Client-Service Library References
The following references may be of related or collateral interest to a user of this annotation.
Annotations
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Encyclopedias and Texts
1 Am Jurisprudence 2d, Abortion and Birth Control §§ 82-117.
40 Am Jurisprudence 2d, Homicide §§ 9, 80, 81.
7A Am Jurisprudence 2d, Automobiles and Highway Traffic §§ 402, 409.
Practice Aids
19 Am Jur Proof of Facts 3d 107, Wrongful Death of Fetus.
41 Am Jur Proof of Facts 2d 1, Trauma in Pregnancy.
40 Am Jur Trials 1, Obstetrical Malpractice.
7 Am Jur Trials 477, Homicide.
2 Am Jur Trials 171, Investigating Particular Crimes.
Federal Statutes
U.S.C.A. Const Amend 14.
Digests and Indexes
ALR Digest Abortion and Birth Control § 1 et seq..
ALR Digest Homicide §§ 1, 15.
ALR Index Abortion and Birth Control; Children; Death and Death Actions; Homicide; Unborn Children; Vehicular Homicide.
Research Sources
The following are the research sources that were found to be helpful in compiling this annotation.
Encyclopedias
1 Am Jurisprudence 2d, Abortion and Birth Control §§ 82-117.
40 Am Jurisprudence 2d, Homicide §§ 9, 80, 81.
7A Am Jurisprudence 2d, Automobiles and Highway Traffic §§ 402, 409.
1 CJS, Abortion and Birth Control; Family Planning § 10.
40 CJS, Homicide § 44.
61A CJS, Motor Vehicles § 657(1) et seq..
Texts
Bailey and Rothblatt, Crimes of Violence, Homicide, and Assault.
LaFave and Scott, Criminal Law 7.6(c), (1986).
Perkins and Boyce, Criminal Law 1B (3d Ed. 1982).
19 Am Jur Proof of Facts 3d 107, Wrongful Death of Fetus.
41 Am Jur Proof of Facts 2d 1, Trauma in Pregnancy.
40 Am Jur Trials 1, Obstetrical Malpractice.
7 Am Jur Trials 477, Homicide.
2 Am Jur Trials 171, Investigating Particular Crimes.
Law Review Articles
King, The Judicial Status of the Fetus and Proposal for the Legal Protection of the Unborn (1979), 77 Mich. L. Rev. 1647.
Feticide,The Unborn child as Human Being, 45 Tulane L.R. 408.
Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms (1987), 21 Val. U. L. Rev. 563.
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