Abandonment and Reconciliation: Addressing politiCal and common law objections to fetal homicide laws

Duke Law Journal

Volumn 58, Issue 6, 2009, Pages 1107-1142

  Curran, Douglas S ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CRIMINAL LAW; FEMALE; FETUS; GOVERNMENT; HISTORY; HOMICIDE; HUMAN; LEGAL ABORTION; LEGAL ASPECT; PERSONHOOD; POLITICS; PREGNANCY; PUNISHMENT; REPRODUCTIVE RIGHTS; UNITED STATES;

ABORTION, LEGAL; CRIMINAL LAW; FEMALE; FETUS; HISTORY, 16TH CENTURY; HISTORY, 17TH CENTURY; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HISTORY, 21ST CENTURY; HOMICIDE; HUMANS; PERSONHOOD; POLITICS; PREGNANCY; PUNISHMENT; REPRODUCTIVE RIGHTS; STATE GOVERNMENT; UNITED STATES;

EID: 64849111473     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (244)

1. Oliver Wendell Holmes, Justice of the Supreme Judicial Court of Mass., The Path of the Law, Address at the Dedication of the New Hall of the Boston University School of Law (Jan. 8, 1897), in 10 Harv. L. Rev. 457, 469 (1897).
2. E.g., WIlliam Blackstone, 1 commentaries *125-26 ("For if a woman is quick with child, and by a potion, or otherwise, kIlleth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.")
3. 2 Henry de Bracton, The Laws And Customs of England 341 (Samuel E. Thorne trans., Belknap Press 1968) (1257) ("If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus be already formed or quickened, and especially if it be quickened, he commits homicide.")
4. 3 Edward Coke, Institutes of The Laws Of England 50 (London, Clarke & Sons 1809) ("[I]f a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder . . . .").
5. E.g., Jessica Berg, Of Elephants and Embryos: A Proposed Framework for Legal Personhood, 59 Hastings L.J. 369, 392 (2007) (addressing the legal personhood of fetuses)
6. Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 625 (1987) (Comprehensively surveying the historiCal treatment of feticide and arguing that the born-alive rule was purely evidentiary)
7. Tony Hartsoe, Person or Thing-In Search of the Legal Status of a Fetus: A Survey of North Carolina Law, 17 Campbell L. Rev. 169, 237 (1995) ("It is difficult to say what the Status of the fetus is in North Carolina. While there is some case law and several Statutes on the subject, there is an overall paucity of law-case or Statutory-that defines the legal Status of the fetus.")
8. Roger J. Magnuson & Joshua M. Lederman, Aristotle, Abortion, and Fetal Rights, 33 Wm. Mitchell L. Rev. 767, 777 (2007) ("The criminal law, at least in ReCent years, has been moving briskly toward the Recognition of the personhood of the unborn.")
9. Luke M. MIlligan, A Theory of Stability: John Rawls, Fetal Homicide, and Substantive Due Process, 87 B.U. L. Rev. 1177, 1178 (2007) ("If you take a hard look around, you might get the sense that our society is drifting toward a bifurcated narrative of the human fetus. One line of the fetal narrative is epitomized by the restructuring of criminal Codes in order to protect fetuses from acts of violence. . . . [T]here is, of course, another line of the fetal narrative. This is the fetus's nearabsolute subordination to maternal liberty . . . .")
10. Laura E. Back, Note, Improperly Performed Abortion as Fetal Homicide: An Uneasy Coexistence Becomes More Difficult, 18 Hastings Women's L.J. 117, 119 (2007) (observing that "someone who assists a woman in terminating a pregnancy can be charged with murder" and exploring the "constitutional bases for challenging such a result")
11. Sandra L. Smith, Note, Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application, 41 Wm. & Mary L. Rev. 1845, 1880 (2000) ("State Legislatures interested in creating fetal homicide Statutes should focus on the pregnant woman as victim, rather than on the fetus itself.").
12. See infra notes 157-59 and acCompanying Text.
13. See Cass, 467 N.E.2d at 1328 ("The rule [that the destruction of a fetus in utero is not a homicide] has been accepted as the established common law in every American jurisdiction that has considered the question.").
14. E.g., White v. State, 232 S.E.2d 57, 57 (Ga. 1977) ("In order to convict for the murder of a newly born baby it is incumbent upon the State to prove that the child was born alive and had an independent and separate existence from its mother, and that it was slain by the accused." (quoting Logue v. State, 32 S.E.2d 397, 397 (Ga. 1944))).
15. See infra note 176 and acCompanying Text.
16. See, e.g., State v. Soto, 378 N.W.2d 625, 631 (Minn. 1985) (Yetka, J., dissenting) ("MediCal science certainly has progressed to the point of making the 'born alive' rule obsolete.").
17. Nat'l Right to Life, State Homicide Laws that Recognize Unborn Victims, http://www.nrlc.org/Unborn_victims/Statehomicidelaws092302.html (last visited Feb. 22, 2009).
18. Cass, 467 N.E.2d at 1325 ("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.").
19. See, e.g., Melissa Boatman, Bringing Up Baby: Maryland Must Adopt an Equitable Framework for Resolving Frozen Embryo Disputes After Divorce, 37 U. Balt. L. Rev. 285, 299-303 (2008) (discussing the debate regarding the personhood of human embryos).
20. This Note uses "unborn child" and "fetus" interchangeably; no moral or ethiCal import is intended to attach to either term
21. See, e.g., Tara Kole & Laura Kadetsky, ReCent Developments: The Unborn Victims of Violence Act, 39 Harv. J. on Legis. 215, 235 (2002) ("[W]hile the Act may not legally affect the right to abortion, its rhetoric wIll likely color the abortion debate and the legal battles of the next Century.").
22. Jenna Nielsen Murder Investigation, Wral.com, June 22, 2007, http://www.ncwanted.com/ncwanted_home/story/1525864.
23. See infra note 23.
24. Erin Coleman, Pregnant Mom's Slaying Could Help Change Fetal Homicide Law, Wral.com, June 29, 2007, http://www.Wral.com/news/loCal/story/1547056.
25. Marisol Bello, Slain Woman's Family Wants N.C. Fetal Homicide Law, USA Today, July 8, 2007, http://www.usatoday.com/news/nation/2007-07-08-carrier_N.htm.
26. See, e.g., id. ("Janet Crepps, a staff attorney for the Center for Reproductive Rights, says fetal homicide laws are part of a broader agenda by abortion opponents to create legal rights for a fetus in order to set pRecedents that wIll help them ban the procedure.").
27. See, e.g., Kole & Kadetsky, supra note 13, at 235 ("While the [Unborn Victims of Violence] Act disclaims its power to affect abortion rights, the substance of the UVV appears to contradict the fundamental premises of abortion law . . . .").
28. See, e.g., State v. Beale, 376 S.E.2d 1, 4 (N.C. 1989) ("We conclude that defendant may not be prosecuted under N.C.G.S. § 14-17, as it now exists, for the kIlling of a viable but unborn child.").
29. See infra Part I.B.
30. Forsythe, supra note 3, at 575 ("[T]he health of the child in utero could not be established unless and until the child was observed outside the womb.")
31. see also infra Part I.B. 26. See infra Part I.A.
32. See infra Part I.A.
33. See, e.g., Hughes v. State, 868 P.2d 730, 735-36 (Okla. Crim. App. 1994) ("Oklahoma, by means of this decision, joins a minority of two States whose courts have expressly rejected the ancient, yet obsolete, born alive rule.").
34. Throughout this Note, "feticide" refers to the kIlling of an unborn human child, irrespective of how the law treats that kIlling. "Fetal homicide" refers to treating this kIlling similarly to a traditional homicide.
35. See infra Parts II-III
36. Forsythe, supra note 3, at 625.
37. See infra Part IV.A.
38. See infra Part IV.B.
39. State v. Beale, 376 S.E.2d 1, 2 (N.C. 1989) ("[T]he common law rule [is] that a viable fetus cAnnot be the subject of murder unless it was born alive and subsequently died of injuries inflicted prior to birth."). For a Comprehensive survey of the historiCal developments of feticide and the born-alive standard, see generally Forsythe, supra note 3. Courts considering the bornalive rule have frequently relied on Forsythe.
40. E.g., State v. Trudell, 755 P.2d 511, 513 (Kan. 1988)
41. Commonwealth v. Morris, 142 S.W.3d 654, 657 (Ky. 2004)
42. Hughes v. State, 868 P.2d 730, 732 (Okla. Crim. App. 1994).
43. See Forsythe, supra note 3, at 571 (discussion the "primitive" State of medicine at the time the born-alive standard developed).
44. See id. (explaining that fetal movement, halfway through geStation, is the "most undoubted" sign of pregnancy).
45. See id. at 573 (discussing, specifiCally, fetal movements and heartbeat).
46. See State v. Holcomb, 956 S.W.2d 286, 291 (Mo. Ct. App. 1997) ("The high rate of stIllborn deliveries and miscarriages in earlier times created a presumption that an unborn child would die in the process of childbirth.").
47. See id. ("[U]ntil ReCent advances in mediCal technology, there was no way to determine, prior to the point of 'quickening' (when the baby is felt to move), whether the fetus was alive in the womb.").
48. Forsythe, supra note 3, at 571 (quoting Valentine Seaman, The Midwives Monitor and Mothers Mirror 25 (New York, Isaac Collins 1800)). Indeed, it was not until the early twentieth Century that modern pregnancy tests were developed. Id.
49. See State v. Holcomb, 956 S.W.2d 286, 291 (Mo. Ct. App. 1997) (discussing a "high rate of stIllborn deliveries and miscarriages").
50. See Forsythe, supra note 3, at 575 (discussing common Complications arising during pregnancy that rendered it difficult to determine that a fetus was alive).
51. See id. at 575 ("[L]ive birth was required to prove that the unborn child was alive and that the material acts were the proximate cause of death, because it could not otherwise be established if the child was alive in the womb at the time of the material acts.").
52. Coke, supra note 2, at 50.
53. Holcomb, 956 S.W.2d at 291.
54. Forsythe, supra note 3, at 579 ("[T]hroughout the period of the common law, both the quickening doctrine and the born alive doctrine related entirely to evidence of life." (emphasis added)).
55. See commonwealth v. Cass, 467 N.E.2d 1324, 1328 (Mass. 1984) ("The rule [that the destruction of a fetus in utero is not a homicide] has been accepted as the established common law in every American jurisdiction that has considered the question.").
56. See infra Part III
57. These laws do not apply to abortions. See infra notes 186-87 and acCompanying Text. See Nat'l Right to Life, supra note 9 (indicating that thirty-six States Recognize fetal homicide).
58. See, e.g., Hughes v. State, 868 P.2d 730, 734 (Okla. Crim. App. 1994) ("Thus, the term 'human being' in Section 691-according to its plain and ordinary meaning-includes a viable human fetus.").
59. E.g., id. at 732 ("Advances in mediCal and scientific knowledge and technology have abolished the need for the born alive rule.").
60. commonwealth v. Cass, 467 N.E.2d 1324, 1328 & n.4 (Mass. 1984).
61. Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994).
62. The child was delivered via emergency cesarean section and had a faint heartbeat at the time of delivery, though the child had neither blood pressure nor brain activity. Id. at 732. The court dismissed the argument that the faint heartbeat satisfied the born-alive rule and instead confronted the rationale of the rule diRectly. Id.
63. See Black's Law Dictionary 1597 (8th ed. 2004) (defining "viable" to mean "capable of living, especially outside the womb").
64. See Hughes, 868 P.2d at 731 ("We now abandon the common law approach and hold that whether or not it is ultimately born alive, an unborn fetus that was viable at the time of injury is a 'human being' which may be the subject of a homicide . . . .").
65. Commonwealth v. Morris, 142 S.W.3d 654 (Ky. 2004).
66. Bailey v. State, 191 S.W.3d 52 (Mo. Ct. App. 2005).
67. "A fetus generally becomes a viable child between the sixth and seventh month of its existence . . . ." Morris, 142 S.W.3d at 660 (quoting Mitchell v. Couch, 285 S.W.2d 901, 905 (Ky. 1955)).
68. Bailey, 191 S.W.3d at 53. In fact, the woman was pregnant with the defendant's child. Id.
69. Mo. Ann. Stat. § 1.205 (West 2000).
70. Bailey, 191 S.W.3d at 55.
71. Mo. Ann. Stat. § 1.205.1(1).
72. Bailey, 191 S.W.3d at 55.
73. See infra note 213 and acCompanying Text.
74. Minn. Stat. Ann. § 609.2661 (West 2003).
75. State v. MerrIll, 450 N.W.2d 318, 324 (Minn. 1990).
76. Forsythe, supra note 3, at 564.
77. State v. Soto, 378 N.W.2d 625 (Minn. 1985).
78. 18 U.S.C. § 1841 (2006).
79. See Unborn Victims of Violence Act of 2004, Pub. L. No. 108-212, § 1, 118 Stat. 568, (codified at 18 U.S.C. § 1841 note (2006)) ("This Act may be cited as . . . 'Laci and Conner's Law.'").
80. 18 U.S.C. § 1841(a)(1).
81. Scott Peterson, Laci's husband and Conner's father, was convicted of kIlling both his wife and unborn child in 2004, Peterson Guilty of Murder, CNN.com, Dec. 14, 2004, http://www.cnn.com/2004/LAW/11/12/peterson.verdict, and was subsequently sentenced to death under California law, Peterson Sentenced to Death for Wife's Slaying, CNN.com, Mar. 17, 2005, http://www.cnn.com/2005/LAW/03/16/peterson.case. Although the federal law, enacted in 2004, was conceived prior to Laci and Conner's deaths in [2002,] the intense media coverage and the public's general disgust at the murders helped to inspire renewed Congressional interest in enacting a fetal homicide Statute. Bush Signs 'Laci and Conner's Law,' Foxnews.com, Apr. 2, 2004, http://www.foxnews.com/story/0,2933,115825,00. html. Similarly, following the death of his daughter, Kevin Blaine and others pressured the North Carolina Legislature to amend the State's homicide Statutes to include unborn children as potential victims. Bello, supra note 20
82. see also supra notes 14-20 and acCompanying Text.
83. See infra notes 97-111 and acCompanying Text.
84. See, e.g., Cal. Penal Code § 187 (West 2006) ("Murder is the unlawful kIlling of a human being, or a fetus, with malice aforethought.").
85. See infra notes 112-23 and acCompanying Text.
86. 1986 Minn. Laws ch. 388 (codified at Minn. Stat. §§ 609.266-.2691 (2006)).
87. State v. MerrIll, 450 N.W.2d 318, 320 (Minn. 1990).
88. State v. Soto, 378 N.W.2d 625, 630 (Minn. 1985).
89. MerrIll, 450 N.W.2d at 324.
90. Tex. Penal Code Ann. § 1.07(a)(26) (Vernon Supp. 2008).
91. See Lawrence v. State, 211 S.W.3d 883, 891 (Tex. Ct. App. 2006) (applying the plain language of the Statute and noting that it "clearly States a fetus is an individual from the moment of fertilization, placing no limitation on the stage of development of the fetus").
92. See Lawrence, 211 S.W.3d at 890 (deferring to the policy judgments of the Legislature).
93. Minn. Stat. Ann. §§ 609.266-.2691 (West 2003).
94. See Cal. Penal Code § 187 historiCal and Statutory notes (West 2008) (explaining that the 1970 amendment added the phrase "or a fetus" after "human being" in defining murder). The amendment also added two subsections to pRevent the feticide law from reaching cases of legal abortion, id., and thus was actually longer than three words.
95. Keeler v. Superior Court, 470 P.2d 617, 624 (Cal. 1970) (en banc).
96. People v. Davis, 872 P.2d 591, 594 (Cal. 1994) (en banc).
97. Cal. Penal Code § 187.
98. See People v. Smith, 129 Cal. Rptr. 498, 501-02 (Ct. App. 1976) ("[S]ection 187, as amended, does not define fetus nor is it consistent with other parts of the Penal Code in which it is located. . . . In view of the gaps and inconsistencies on both sides of the issue, we rely on general legal principles interpreted in the light of the factual situation with which the Statute purportedly deals."), abrogated by Davis, 872 P.2d at 591.
99. People v. Davis, 19 Cal. Rptr. 2d 96, 104 (Ct. App. 1993) ("The courts may not restrict the application of the fetal murder Statute to limit the mother's interest in continuing her pregnancy and the State's interest in protecting fetal life to include only viable fetuses. We respectfully reject Smith's requirement that a fetus be viable in order to be [murdered].").
100. People v. Davis, 872 P.2d 591 (Cal. 1994) (en banc).
101. See supra note 101 and acCompanying Text.
102. See, e.g., State v. MerrIll, 450 N.W.2d 318, 323 (Minn. 1990) (considering the defendant's contention that "it is unfair to impose on the murderer of a woman an additional Penalty for murder of her unborn child when neither the assailant nor the pregnant woman may have been aware of the pregnancy").
103. People v. GIllespie, 659 N.E.2d 12, 15 (Ill. App. Ct. 1995) (emphasis omitted) (quoting Ill. Rev. Stat. § 9-1.1 (1981)).
104. 720 Ill. Comp. Stat. Ann. 5/9-1.2(a)(3) (West 2002).
105. People v. GIllespie, 659 N.E.2d 12, 15 (Ill. App. Ct. 1995).
106. See State v. MerrIll, 450 N.W.2d 318, 323 (Minn. 1990) ("The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude.").
107. Minn. Stat. Ann. § 609.2661 (West 2006) ("Whoever does any of the following is guilty of murder of an unborn child in the first degree and must be sentenced to imprisonment for life . . . .").
108. MerrIll, 450 N.W.2d at 323.
109. These states are Colorado, Connecticut, Delaware, Hawaii, Iowa, Maine, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Oregon, Vermont, and Wyoming. See Nat'l Right to Life, supra note 9 (listing the thirty-six states that have some form of fetal homicide laws).
110. Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970) (en banc).
111. See id. at 624 (holding that California's homicide law does not prohibit "kIlling an unborn fetus").
112. The California court also held that, even if it were inclined to hold that "human being" included a fetus, the State could not charge the defendant in this case with murder because applying the definition retroactively would violate the Due Process Clause
113. See id. at 626-30 (explaining that retroactive implementation would run afoul of the Due Process Clause's traditional notice requirement).
114. See supra note 114-116 and acCompanying Text.
115. One similar decision that does continue to operate as controlling pRecedent is the North Carolina case State v. Beale, 376 S.E.2d 1 (N.C. 1989). In that case, the Supreme Court of North Carolina held that the State homicide Statute did not actually define "murder." Id. at 1-2 ("Murder under [that Statute] is murder as defined at common law."). Referencing the historiCal discussion in Keeler, the court then asserted that, because "[i]t is beyond question that . . . the kIlling of a viable, but unborn child was not murder at common law," neither was it murder under the North Carolina Statute. Id. at 2. Like their California counterparts, the North Carolina judges held that altering the scope of the homicide Statute was purely the prerogative of the Legislature. Id. at 4.
116. Other States have also employed this sort of reasoning. See, e.g., State v. Trudell, 755 P.2d 511, 516 (Kan. 1988) ("[I]f it is the desire of the people in Kansas to give the same protection to a fetus as it gives to a human being, it is the Legislative branch which is the proper forum to resolve the issue.")
117. People v. Guthrie, 293 N.W.2d 775, 780-81 (Mich. Ct. App. 1980) (per curiam) ("Although we find that the 'born alive' rule is archaic and should be abolished in prosecutions brought under the negligent homicide Statute, the abolition of the rule is a matter for action by the Legislature.").
118. E.g., Am. Civil Liberties Union, What's Wrong with Fetal Rights, (July 31, 1996) http://www.aclu.org/reproductiverights/gen/16530res19960731.html ("[The ACLU has] serious reservations about Legislation designed to protect fetuses, because it can endanger women's rights by reinforcing claims of 'fetal rights' in the law. Anti-choice organizations have long promoted fetal protection Legislation as one prong of their campaign to eliminate the right to choose. . . . Passage of fetal protection laws gives anti-choice forces a propaganda coup and a launching pad for arguments to restrict abortion.")
119. Do Fetal Rights Limit Mothers' Rights?, State Legislatures, June 2002, at 6, http://www.ncsl.org/programs/health/SLJune2002p6.pdf ("Those on the other side fear that laws to protect a fetus could infringe on a woman's right to choose an abortion. Pro-choice advocates say such laws grant a fetus legal Status distinct from the pregnant woman-possibly creating an adversarial relationship between a woman and her baby."); NARAL Pro-Choice Mont., HB 730: The Fetal Homicide Act, http://www.prochoicemontana.org/voting_hb730.html (last visited Feb. 22, 2009) ("If the goal is to more severely punish crimes against pregnant women, there are better ways. . . . There is no need, aside from undermining Roe v. Wade, to define the fetus as separate from the woman."); Nat'l Conference of State Legislatures, Fetal Homicide, http://www.ncsl.org/programs/health/fethom.htm (last visited Feb. 22, 2009) ("Those on the other side feel that laws to protect a fetus could become a 'slippery slope' that could jeopardize a woman's right to choose an abortion.").
120. Cf. Roe v. Wade, 410 U.S. 113, 164-65 (1973) ("For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion . . . .").
121. See sources cited supra note 150.
122. Not all Statutes actually grant fetuses personhood. California's homicide Statute, for instance, specifiCally distinguishes between a human being and a fetus: "Murder is the unlawful kIlling of a human being, or a fetus, with malice aforethought." Cal. Penal Code § 187 (West 2008).
123. For example, the Minnesota Statute separates feticide from abortion: "Sections 609.2661 to 609.268 [the sections defining the crimes against the unborn] do not apply to any act described in section 145.412 [the section defining legal abortion]." Minn. Stat. Ann. § 609.269 (West 2003).
124. 18 U.S.C. § 1841 (2006).
125. Kole & Kadetsky, supra note 13, at 235
126. 150 Cong. Rec. S3149 (daily ed. Mar. 25, 2004) (Statement of Sen. Feingold).
127. Bush Signs 'Laci and Conner's Law,' supra note 93.
128. Jennifer A. Brobst, The Prospect of Enacting an Unborn Victims of Violence Act in North Carolina, 28 N.C. Cent. L.J. 127, 128 (2006).
129. E.g., Elizabeth Spiezer, comment, ReCent Developments in Reproductive Health Law and the Constitutional Rights of Women: The Role of the Judiciary in Regulating Maternal Health and Safety, 41 Cal. W. L. Rev. 507, 509 (2005) ("[T]o protect the rights of all women, American laws must prioritize each woman's autonomous interests above a historiCally determined maternal role.").
130. Joyce Arthur, Abortion Rights Coalition of Canada, The Case Against a "Fetal Homicide" Law, http://www.arcc-cdac.ca/fetal_homicide_law.html (last visited Feb. 22, 2009).
131. See supra note 49 and acCompanying Text.
132. See, e.g., Keeler v. Superior Court, 470 P.2d 617, 622 (Cal. 1970) (en banc) (holding that the murder Statute only applies to children born alive)
133. see also Forsythe, supra note 3, at 603 ("Throughout [the Keeler opinion], the court assumed that the rule was a substantive element at common law, which designated the unborn child as non-human.").
134. See generally Forsythe, supra note 3 (demonstrating the evidentiary nature of the bornalive rule)
135. See, e.g., Keeler, 470 P.2d at 620 ("Perhaps the most influential Statement of the 'born alive' rule is that of [Coke]. . . . [T]he common law accepted [Coke's] views as authoritative.").
136. 2 de Bracton, supra note 2, at 341
137. See commonwealth v. Morris, 142 S.W.3d 654, 656 (Ky. 2004) ("The reason for the [born-alive] rule was 'non conStat [it could not be established], whether the child were living at the time of the batterie or not, or if the batterie was the cause of death.'" (second alteration in original) (quoting Sims's Case, (1601) 75 Eng. Rep. 1075 (K.B.))).
138. E.g., People v. Smith, 129 Cal. Rptr. 498, 502 (Ct. App. 1976) ("Legally and factually, a non-viable fetus does not possess the capability for independent existence and has not attained the Status of independent human life. . . . Until the capability for independent human life is attained, there is only the expectancy and potentiality for human life."), abrogated by People v. Davis, 872 P.2d 591 (Cal. 1994).
139. This interpretation is different from arguing that an unborn child should enjoy the same protections as every other human being. The point is simply that an unborn human child is, in fact, a human life, whether or not it has been born. commonwealth v. Cass, 467 N.E.2d 1324, 1325 (Mass. 1984).
140. Hughes v. State, 868 P.2d 730, 732 (Okla. Crim. App. 1994) (quoting Cass, 467 N.E.2d at 1325). The Massachusetts and Oklahoma courts discussed fetal personhood in the conText of construing the relevant homicide Statutes; whether the courts intended these Statements regarding personhood to extend beyond the feticide conText is immaterial for this Note's purposes. The point is merely that an evidentiary standard does not affect the underlying substantive definition.
141. See id. ("Advances in mediCal and scientific knowledge and technology have abolished the need for the born alive rule.").
142. E.g., State v. Soto, 378 N.W.2d 625, 631 (Minn. 1985) (Yetka, J., dissenting) ("MediCal science certainly has progressed to the point of making the 'born alive' rule obsolete.")
143. Hughes, P.2d at 735-36 ("Oklahoma, by means of this decision, joins a minority of two States whose courts have expressly rejected the ancient, yet obsolete, born alive rule.")
144. see also commonwealth v. Cass, 467 N.E.2d 1324, 1328 (Mass. 1984) ("[T]he antiquity of a rule is no measure of its soundness.").
145. See supra Text acCompanying note 169.
146. Forsythe, supra note 3, at 576
147. Hughes, 868 P.2d at 732 ("Advances in mediCal and scientific knowledge and technology have abolished the need for the born alive rule.").
148. See, e.g., Keeler v. Superior Court, 470 P.2d 617, 625-26 (Cal. 1970) (en banc) ("For a court to simply declare, by judicial fiat, that the time has now come to prosecute under section one who kIlls an unborn but viable fetus would indeed be to rewrite the Statute under the guise of construing it.")
149. State v. Anonymous, 516 A.2d 156, 159 (Conn. Super. Ct. 1986) (declining to "redefin[e] . . . the word 'person' [because such task] must be left to the Legislature, which has the priMary authority to define crimes")
150. People v. Guthrie, 293 N.W.2d 775, 778 (Mich. Ct. App. 1980) (per curiam) (choosing to not Recognize fetal homicide because "the Legislature had the opportunity to include unborn fetuses in the Statute, but did not do so")
151. State v. Soto, 378 N.W.2d 625, 630 (Minn. 1985) (rejecting a proposed expansion of the "common law definition of 'person' or 'human being'" in the homicide Statute to enCompass the fetus).
152. Keeler, 470 P.2d at 619.
153. see also supra note 145 and acCompanying Text.
154. Keeler, 470 P.2d at 619.
155. See supra Part III.B.
156. See supra note 154.
157. E.g., Minn. Stat. Ann. § 609.266(b) (West 2006). This Statute reads, "Definitions . . . (b) 'Whoever' does not include the pregnant woman." Id.
158. State v. Holcomb, 956 S.W.2d 286 (Mo. Ct. App. 1997).
159. This may lead to some interesting situations, but is stIll logiCally consistent
160. See, e.g., MIlligan, supra note 3, at 1178 ("Imagine, for instance, a pregnant woman who approaches an abortion clinic with the intention of terminating her pregnancy. In one scenario, she is mugged at the entrance, and, due to the ensuing trauma, has a miscarriage. The law holds that a 'person' was 'murdered,' and it punishes the perpetrator with a life sentence in jail. In the second scenario, the woman evades the mugger, enters the clinic safely, and undergoes a successful abortion procedure. Here the law holds that no crime was committed.").
161. This determination would stIll be subject to the limitations of Roe v. Wade.
162. Kole & Kadetsky, supra note 13, at 235
163. Professor Dellinger is a partner at O'Melveny & Myers LLP, a professor of law at Duke University School of Law, a former Acting Solicitor General and White House adviser to President WIlliam Clinton, and a long-time NARAL supporter
164. Anne Blythe, A Question of Rights, News & Observer (Raleigh, N.C.), July 13, 2003, at A21.
165. In Lawrence v. State, the Texas court observed, The rights and interests addressed by the Roe Court, however, are not the same as those at issue in this case. In Roe, the Court was attempting to balance the privacy rights of a woman seeking to terminate her pregnancy with the State's interest in protecting the woman's health as well as the life of her unborn child. In this case, appellant murdered Smith and her unborn child. Obviously, appellant has no constitutional right to murder a pregnant woman. The State's interest in this case is in protecting its citizens and their unborn children from murder and imposing maximum criminal liability on individuals such as appellant who, by his own criminal conduct, terminated Smith's pregnancy at the same time he ended Smith's life. Thus, the individuals' and States' interests at issue in the two cases are clearly distinguishable.
166. Lawrence v. State, 211 S.W.3d 883, 891-92 (Tex. Ct. App. 2006). Similarly, the California court noted, [A] defendant who assaults a pregnant woman, causing the death of her fetus, and a pregnant woman who chooses to terminate her pregnancy are not similarly situated. "A woman has a privacy interest in terminating her pregnancy; however, defendant has no such interest. The Statute simply protects the mother and the unborn child from the intentional wrongdoing of a third party."
167. People v. Davis, 19 Cal. Rptr. 2d 96, 103-04 (Ct. App. 1993) (quoting People v. Ford, 581 N.E.2d 1189, 1199 (Ill. App. Ct. 1991)).
168. See, e.g., Kole & Kadetsky, supra note 13, at 235 ("[W]hile the Act may not legally affect the right to abortion, its rhetoric wIll likely color the abortion debate and the legal battles of the next Century.").
169. This is not to suggest that the law should impose homicide to punish a third party for violating a mother's constitutional right to choose. Rather, the benefit comes from granting a woman the ability to determine, solely through her subjective intent, that her fetus is a "person" for the purposes of the homicide Statute. See supra notes 188-92 and acCompanying Text. Once a mother makes this determination, a third party who kIlls the fetus can be punished for homicide because the third party ended a life that the law treats as a person. For more on the justifications for the severity of the punishment, see infra Part IV.D.
170. Minn. Stat. Ann. § 609.266-.2691 (West 2006).
171. Legislators can, for example, include a provision indicating that the State cAnnot apply the fetal homicide Statute in the conText of a controlled, legal abortion. E.g., id. § 609.269 ("Sections 609.2661 to 609.268 [the sections defining the crimes against the unborn] do not apply to any act described in section 145.412 [the section defining legal abortion].").
172. See id. § 609.18-.22 (homicide); id. § 609.2661 (feticide).
173. Tex. Penal Code Ann. § 1.07(a)(26) (Vernon Supp. 2008).
174. See supra notes 188-92 and acCompanying Text.
175. Roe v. Wade, 410 U.S. 113 (1973).
176. This discussion is based on the Model Penal Code definitions of mens rea: "Purposely. A person acts purposely with respect to a material element of an offense when . . . it is his conscious object to engage in conduct of that nature or to cause such a result," Model Penal Code § 2.02(a) (1985)
177. "Knowingly. A person acts knowingly with respect to a material element of an offense when . . . if the element involves a result of his conduct, he is aware that it is practiCally certain that his conduct wIll cause such result," id. § 2.02(b)
178. "Recklessly. A person acts Recklessly with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or wIll result from his conduct," id. § 2.02(c)
179. "Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or wIll result from his conduct," id. § 2.02(d).
180. Because the fetus in this Statutory regime would possess personhood for fetal homicide purposes, see supra notes 191-92 and acCompanying Text, the defendant cAnnot end that fetus's life with immunity
181. Cf. Model Penal Code §§ 210.2-.4. Section 210.2 explains that "criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed Recklessly under circumstances manifesting extreme indifference to the Value of human life." Id. § 210.2. Section 210.3 explains that "[c]riminal homicide constitutes manslaughter when: (a) it is committed Recklessly." Id. § 210.3. And section 210.4 explains that "[c]riminal homicide constitutes negligent homicide when it is committed negligently." Id. § 210.4. Thus, the severity of the defendant's crime depends on the defendant's mental State regarding the victim's pregnancy.
182. See id. § 210.2 ("[C]riminal homicide constitutes murder when . . . it is committed purposely or knowingly . . . .").
183. State v. MerrIll, 450 N.W.2d 318, 321 (Minn. 1990).