*1 ap- showing an from increasing the burden showing actual one of bias to
pearance of in his
bias, by Judge Oddone suggested only show a moving party must
order. entitled of bias to be appearance
reasonable Code judge at issue. Utah
to recusal 3E. Canon
of Judicial Conduct moot. is dismissed as petition 4 The DURHAM, Associate 5 Chief Justice DURRANT, Justice
Chief Justice
PARRISH, concur and Justice NEHRING opinion.
Justice WILKINS’ Utah, Plaintiff
STATE Respondent, MacGUIRE,
Roger Defendant Martin
and Petitioner.
No. 20020071.
Supreme Court of Utah. 23, 2004.
Jan. *2 Shurtleff, Gen., Att’y
Mark L. J. Frederic Voros, Jr., Ballard, Christopher D. Asst. Att’ys Gen., McGuire, William K. Davis County Att’y, City, plaintiff. Salt Lake Wiggins, City, Scott L. Salt Lake for de- fendant.
DURRANT, Associate Chief Justice:
INTRODUCTION ¶ 1 Utah’s criminal pro- homicide statute person may vides that a prosecuted be causing the death of an unborn child. This (1) interlocutory appeal concerns whether the term “unborn child” is vague both on its applied, face and as whether the criminal aggravat- homicide and ed murder statutes violate the federal and guarantees equal protection. state ¶ 2 Roger Defendant Martin MacGuire has charged been with two counts of for allegedly killing his former wife and her unborn child. In a motion to dismiss part Count I in entirety, and Count II in its defendant prose- contended he could not killing cuted for the unborn child or be charged murder based on killing because Utah’s criminal homicide murder statutes are uncon- stitutional. The district court denied defen- dant’s motion to dismiss and peti- pro- interlocutory prevent testifying, Ms. from order. MacGuire for review tioned evidence, viding participating legal in a affirm. We proceeding investigation.3 or official Count BACKGROUND charges II of the information defendant with aggravated murder for the death of the un- charged with the has been 3 Defendant *3 during episode child a criminal in which born wife, C. his former Susan murder persons killed. two were According MacGuire, unborn child. and her preliminary at the presented to accounts ¶ 7 Defendant filed a motion to dismiss the learned, days pri- hearing,1 several defendant aggravating factor in I and to first Count murder, was that Ms. MacGuire or to the entirety II in the basis dismiss Count its on baby. He called his engaged expecting and not a under unborn child is 14, 2001, January father-in-law on former statute, aggravated crim- the murder and the morning the information. On confirm the aggravated stat- inal homicide and 15, 2001, allegedly en- January unconstitutionally vague and violate utes are where Ms. the insurance office tered equal protection guarantees. The district shot her four times. worked and MacGuire motion, court and defen- denied defendant’s ¶ interlocutory appeal. Ms. petition 4 the bullets entered filed a for One dant jurisdiction and trav- pursuant at the of her neck have to Utah Code MacGuire base We 78-2-2(3)(h) (2002). skull. through occipital Ann. section eled bone and her left entered exited A second bullet the side of A third bullet entered
forearm.
ANALYSIS
approximately at the waistline
her abdomen
and small
pierced her abdominal wall
and
I.
OF REVIEW
STANDARD
her abdo-
A fourth bullet entered
intestine.
prop
court
8 Whether
district
uterus,
through
lodg-
and traveled
her
men
erly interpreted
criminal homicide
Utah’s
right
pelvis.2
her
ing in the
wall of
ques
murder statutes “is a
injured
lethally
This fourth bullet
5
tion of law that we review for correctness.”
carrying.
It
child Ms. MacGuire
Gomez,
120, 11,
v.
2002 UT
63 P.3d
State
cord and traveled
severed
umbilical
Likewise,
is consti
72.
a statute
“[w]hether
itself
through
placenta
and unborn child
question
is a
of law
we review
[that]
tutional
lodging
pelvic
wall. The medi-
before
correctness, giving no
to the
deference
gestational
that the
cal examiner estimated
Daniels,
v.
trial court.” State
was between thirteen
age of the unborn child
Mohi,
¶ 30,
(citing
v.
901
bly vague in
applications.” Village
all of its
Flipside,
Estates v. The
of Hoffman
Hoff
II. VAGUENESS CHALLENGE
Estates, Inc.,
489, 494-95,
man
challenges
9 Defendant
the criminal
(1982).
L.Ed.2d 362
A statute
homicide and
murder statutes of
applied
particular
that is clear as
to a
com
being unconstitutionally
the Utah Code as
plainant
impermissibly
cannot be considered
*4
vague
facially
applied.
both
and as
vague
applications
in all of its
and thus will
criminal homicide statute
as follows: necessarily survive a facial vagueness chal
(“A
495,
lenge.
See id.
could not be
2.
of
Definition
“Unborn Child”
Other
twenty-six-
causing
cide for
the death
Chapters of the Utah Criminal Code
spe-
was not
week-old fetus because
fetus
in Other Jurisdictions
cifically recognized in
as a human
decision,
legis-
being.
response
In
to our
the
with how
20 This definition is consistent
amended the criminal homicide stat-
lature
used in other
the term “unborn child” is
person
guilty of
provide
ute4 to
that a
parts
example,
of
criminal code. For
in a
if, acting
requisite
criminal homicide
with the
regulates
chapter of the criminal code that
state,
the death of
mental
“causes
abortions,
in-
legislature
mandates that
being, including an unborn
another human
formational materials be made available
76-5-201(l)(a)
§
Ann.
child.” Utah Code
any person contemplating an abortion. Utah
(1999). By
plain meaning the statute
its
76-7-305.5(1) (1999).
§
The in-
Ann.
Code
a human
recognizes that an unborn child is
must
include “the
materials
formational
being.
probable
physiological
char-
anatomical
at two-week
acteristics of the unborn child
contends nevertheless that
17 Defendant
gestational increments from fertilization
unconstitutionally vague
the statute is
be-
term,
accompanied
pictures or video
full
impossible
“it is
to ascertain from stat-
cause
segments representing
development
otherwise,
ute, or
when unborn childhood
gestational incre-
an
child at those
result,
ordinary
an
begins.”
argues,
As a
he
76-7-305.5(l)(b)
(emphasis
§
ments.”
Id.
guess
his or her
person is left to
whether
parameters conduct falls within the
¶ Additionally,
legislature mandates
point a
21
it is unknown at what
statute because
produce
Department
of Health
potential
actually
the Utah
life
becomes
“show[ing] an ultrasound of the
videotape
child.
specific
statutorily
crime of auto-
homicide constitutes the
4.
statute is
The criminal homicide
statute,
§
76-5-
homicide. Utah Code
homicide
which
mobile
207(l)(a), (2)(a) (1999).
linked to the automobile
under which criminal
sets forth the conditions
Indeed,
unconstitutionally vague.
an
at three
heart beat of
unborn child
weeks was
eight
gestational age,
gesta-
Supreme
at six to
weeks
United States
Court has stated that
thereafter,
age,
tional
and each month
until
Congress might,
fact that
without diffi
“[t]he
lip
gestational
age.”
‘[cjlearer
weeks
76-7-
culty,
pre
have chosen
and more
305.5(4)
added). Thus,
when the
language’ equally capable
achieving
cise
plain language of the criminal homicide stat-
sought
it
the end which
does not mean that
harmony
chapters
ute is read
with other
it
the statute which
in fact drafted is uncon
code,
legisla-
the criminal
it is clear that the
stitutionally vague.” United States v. Pow
ture intended the term “unborn child” to
ell,
87, 94,
423 U.S.
46 L.Ed.2d
encompass
period
from fertilization to
(1975)
Petrillo,
United States v.
birth.
67 S.Ct.
¶24 Although persons during acknowledge episode. we that the same criminal 76-5-202(l)(b) (1999) (em- statute precise, is now more this does not Utah Code Ann. prior phasis mean that the statute to amendment
¶28
argument
premised
argues that because the
dant’s
is
on the notion
Defendant
legislature
child” is not defined
had to define the term
terra “unborn
statute, it also renders the
homicide
“unborn child”
the term to have
criminal
order
aggra-
meaning.
vague-
terms “another”
definite
for.
“void
unconstitutionally
-ndt, howdver, require
vated
ness” doctrine does
when
impossible
it is
to know
vague
legislature
readily
because
terms that
define
are
status of a
child achieves the
ascertainable. Because the term “unborn
already
we
con-
being.
definition,
Because
have
straightforward
child” has
as we
however,
cluded,
“unborn
the term
above, prosecutor
have discussed
is not left
of notice that en-
child”
the kind
speculate,
meaning.
as to the statute’s
ordinary people to understand what
ables
Thus,
legislature adequately
established
statutorily prohibited,
term
is
conduct
guidelines
minimal
for the enforcement of
“per-
“another” and
cannot render
words
the statute. We therefore conclude that the
unconstitutionally
now
vague. We
sons”
unconstitutionally vague
statute is not
either
second
turn to a discussion of defendant’s
facially
applied
or as
because it does not en-
namely, that the criminal homi-
argument;
arbitrary
courage or facilitate
and discrimi-
arbitrary
encourages
and dis-
cide statute
natory enforcement.
criminatory enforcement.
sum,
In
we conclude that
the term
“unborn child” is not
Sufficiently
Pre-
Defining Conduct
C.
because,
vague
modifying language to
absent
Arbitrary
Discriminatory
clude
contrary,
clearly encompasses
a hu-
Enforcement
being
any stage
development
man
¶29
providing
In addition to
ade
provides adequate
The statute thus
útero.
pro
quate
what conduct
notice about
ordinary person
to an
about what con-
notice
scribed,
vagueness”
“void for
doctrine
Moreover,
proscribed.
duct
because the
crimi
requires
legislature
to “define the
ascertainable,
readily
meaning of the term is
...
in a
not
nal offense
manner
does
encourage
or facilitate
its inclusion does
discriminatory
encourage arbitrary and
en
discriminatory
arbitrary
enforcement.
Lawson,
forcement.” Kolender
Hence,
aggravat-
the criminal homicide and
352, 357, 103
criminatory pros- “the enforcement” because speculate point at an
ecutor is left to what EQUAL III. PROTECTION unborn child becomes a for enforce- challenging 33 In addition to Additionally, purposes.” ment defendant criminal and homicide contends that enforcement decisions will be (cid:127) vagueness, for defendant contends statutes by in part, prosecutor’s “at least made equal- guaran protection violate statutes concerning thoughts own or beliefs fetal to under the tees Fourteenth' .Amendment rights,” provide to because the statute fails article the United States Constitution'and adequate guidance. Specifi 24 of the Utah Constitution.. section ¶ cally, physi argument for the defendant contends 31 This fails because aborting argument prosecuted for fetuses same reason that defendant’s con cians are not microbiologists, prosecuted for cerning adequacy Defen- are not of notice fails. embryos destroying ordinary person fertilized for stem cell to an what about conduct is research, Moreover, apply equally proscribed. the statute “does not the term does not class,” namely, encourage arbitrary discriminatory to all within those en- who cause the death of unborn child. readily forcement because its as- Hence, defendant, according to the statute is Consequently, certainable. we conclude that unconstitutional. the term “unborn child” does not render the criminal homicide statute argues 34 The not State we should vague. We also conclude that the terms argument address defendant’s because he did “another” and are not rendered not the district Al- raise before court. unconstitutionally vague in though we note that did make by they murder statute fact that encom- equal protection guarantees to reference pass the term “unborn child.” We therefore dismiss, his motion to we need not address affirm the court district on this issue. whether such references were sufficient to preserve appeal this issue for because defen- ¶38 We decline to address defendant’s petition interlocutory dant failed to for re- equal protection argument. Although there view of the issue. question concerning is some whether defen- below, adequately dant raised this issue we Appellate 35 Rule 5 of the Utah Rules of need not determine whether the issue was specifies appeal Procedure from an “[a]n adequately preserved because defendant did interlocutory sought order ... petition interlocutory review of his 'permission filing petition appeal to result, equal protection argument. As a we interlocutory R.App. from the order.” Utah grant permission did not to defendant 5(a) petition P. must appeal this issue and we decline to address it. presented” contain issue and a “con- “[t]he statutes, rules[,] analysis cise or cases deny 39 The district court’s decision to believed to be determinative of the issue defendant’s motion to dismiss is affirmed. 5(c)(l)(B)-(C). stated.” Id. ¶ Here, petition defendant’s for interloc- WILKINS, 40 Justice Justice utory appeal did not equal pro- address the PARRISH, Judge NEHRING concur grant tection issue. We therefore did not Judge Associate opinion. Chief DURRANT’S permission appeal for defendant to this issue. PARRISH, Justice, concurring: Moreover, petition because the made no ref- equal protection erence to argument, join 41 I reasoning both the and the provide analysis did not legal concise holding of Associate Chief Justice Durrant’s authority, opportu- the State was denied opinion. I separately lead write to address nity respond Opposition to this issue in its dissenting opinion the issue raised Appeal Petition for Permission to from Chief Justice Durham. Interlocutory Order. therefore We decline ¶ 42 agrees The Chief Justice with the lead equal protection argu- address defendant’s *8 opinion’s conclusion that the criminal homi- ment. permissibly killing cide statute defines an homicide, “unborn child” as a but dissents
CONCLUSION respect may with to whether the defendant ¶ summary, 37 In prosecuted the term “unborn child” aggravated be for murder. The does not render predicated Utah’s criminal homicide and dissent on the notion that a aggravated murder statutes legal “person” unconstitutional- fetus is not a full under the ly vague. The pro- criminal homicide statute laws the United States or the laws of may person prosecuted vides that a Accordingly, aggravated for Utah. because the causing statute, being, § the death of a human includ- murder Utah Ann. 76-5-202 Code ing (1999), an provides unborn child. Because the common- aggravated that homicide is sense of the term “unborn is murder if committed child” incident to a scheme or any a being stage development human during course of conduct which two or útero, killed, in the term sufficient notice are the dissent concludes 1989) prosecuted Smelting, not be for Masich v. that the defendant U.S. 113 aggravated Indeed, murder. 191 P.2d Utah 616 singular the dissent’s focus on the “per- word ¶ disagree urged I with the conclusion son” as a term of art is inconsistent with the First, when by the dissent for two reasons. principle fundamental that words are tó be context, “person” in the term as used in read light determined in of their association with clearly in- aggravated the murder statute is surrounding phrases words and and in har- child, an I do tended to include unborn mony with other statutes in chap- the same presents this a constitutional not believe Weaver, ter. Miller v. infringe any problem because it does not on P.3d 592. Second, constitutionally rights. protected subject the defendant would nevertheless be reasons, per- For similar I am not aggravated prosecution murder under by suaded the concern dissent’s that inter- provision aggravated murder statute preting “person” term the to include an un- in the dissent. addressed born child would raise federal constitutional premise 44 The dissent is based on the implies issues. The dissent that statute “person” in that the word “person” that defines the term an to include legisla- murder statute intended necessarily “unborn child” would run afoul of to constitute a term of art a mean- ture with Constitution, regard federal without statutory ing independent of the scheme as a the context which that definition occurs view, however, my “per- In the term
whole. consequences that from that flow defini- son” as used murder stat- agree tion. I principle. do not with this ute, only generic constitutes reference back statutory provision defining to the the ele- interpretation “per- Our of the term homicide, of criminal ments Utah Code son” in particular statutory the context of the section, 76-5-201. In that implies scheme before the court neither unmistakably provided causing rights equivalent of a are fetus to those being, including death of a purposes of federal constitu- child, following homicide. The constitutes analysis tional nor mandates the conclusion upon section builds criminal homicide “person” that the term is used in an uncon- by designating the circumstances un- manner. I legisla- stitutional believe the “criminal der which homicide” constitutes “person” ture’s use of the word to refer to “aggravated Accordingly, murder.” when fetus would create a clear constitutional issue context, considered it is clear that only if it carried it a restriction of a term constitutionally protected right, such 'as in interpreted statute must be to include restricting the context of a statute a woman’s child.1 right pregnancy. to terminate her An en- where, Interpreting tirely presented the term context different here, light statutory clearly party attacking context a third is accused of expressed legislative killing against intent is consistent with a fetus the will of the Merrill, long-established statutory principles of con- mother. See State v. 450 N.W.2d “ (Minn.1990) (holding principles struction. ‘One of the cardinal 321-22 that a fetal statutory directly impinge construction is that the courts will homicide statute does not reason, spirit, indirectly pregnant privacy look to the and sense of the on a woman’s Tucker, legislation, rights); as indicated the entire context 66 Fed. Credit Union (Miss.2003) subject dealing (holding matter of the statute So.2d 113-14 *9 fetus, subject.’ wrongful protects with the Mountain Tel. & death statute a States (Utah Payne, 464, rights Tel. v. 782 P.2d that the of a mother as outlined in Roe Co. that, variety entirely light points 1. The dissent out in a in an different context. In of the contexts, “person” interpreted intent, the term been has clearly expressed legislative I see no con- not to include a fetus or unborn child. While this is impediment interpreting to the term stitutional true, nothing requires there is that “person” to include an "unborn child” in the interpreted term in one context to be particular statutory provision. context of this co-extensively "person” with the term when used Wade, duct, episode criminal during v. 93 S.Ct. which persons two or more killed (1973), were or dur- to the L.Ed.2d have no relation ing attempted which the actor to kill one rights causing accused of persons in addition or more to vic- Ford, fetus); People 221 Ill. death of [.] tim who was killed App.3d 163 Ill.Dec. 581 N.E.2d (1999) § 76-5-202 (1991) Utah Code (holding pregnant case, In this the defendant has been preg who her woman chooses to terminate charged with the criminal homicide of an nancy preg and a defendant who assaults a pursuant unborn child to section 76-5-201. fetus, woman, causing nant of her death child is understood to When be situated). similarly are not This statute’s homicide, the “victim” of the that unborn of the to to a fetal use term refer during alleged was killed an criminal child aggravated victim defines the crime of mur episode in allegedly which the defendant at- der. It does not declare a fetus to be a tempted persons, to kill one or more in this equal protection, entitled to nor does MacGuire, case Susan in addition to the un- right it restrict a woman’s to obtain an abor Accordingly, may born victim. the defendant fact, possibility tion. In there is no aggravated be tried for murder under section question statute in could undermine a wom 5—202(l)(b).2 76— right an’s to an under obtain abortion statutory provisions 49 I believe spe federal Constitution because addressing aggravated in- murder must be cifically provides that there “shall be no terpreted statutory in the context of the cause of action for criminal homicide for the Accordingly, framework as a whole. I have of an an death unborn child caused abor difficulty concluding “per- no that the term 5—201(l)(b) § tion.” Utah Code Ann. 76— aggravated son” as used in the murder stat- (1999 Supp.2003). & ute includes unborn child. I therefore ¶48 concur in Associate Chief Justice Durrant’s unpersuaded by I am the dissent’s appropri- conclusion the defendant conclusion that the defendant should not be ately prosecuted aggravated murder. subject prosecution murder independent for an reason as well. The dis- DURRANT, 50 Associate Chief Justice portion sent focuses on the of subsection WILKINS, Judge Justice NEHRING (l)(b) murder statute that concurring concur in Justice PARRISH’s refers homicides committed incident to opinion. act, scheme, one or course of conduct in participate 51 Justice RUSSON did not which “two were killed.” herein; Judge then District NEHRING sat. 76-5-202(l)(b) (1999). Utah Code Ann. However, even if we were to assume that the DURHAM, Justice, dissenting: Chief prosecuted defendant could not be under that respectfully 52 I dissent. Defendant is (l)(b), portion my of subsection it is view that charged shooting killing preg- his subject prosecu- the defendant would be nant ex-wife and her fetus. acts While these tion under the second clause of that same constitute two homicides within the (l)(b) subsection. Subsection reads its 76-5-201, charge of section entirety: killing murder based on the of Ms. MacGuire aggra- Criminal homicide constitutes and her fetus cannot be sustained as the intentionally vated if the actor or killing of two under Utah Code knowingly causes the death of another un- 5—202(l)(b). section 76— following der circumstances:
I. Section 76-3-201
(b)
the homicide was committed inci-
language
53 Pursuant
to the
of section
act, scheme,
76-5-201(1),
dent
“eaus[ing]
to one
course of con-
the death of another
(l)(b)
generic
2. The fact
that subsection
uses
art,
the terms
term of
but rather a
reference
to a
seemingly
"victim”
in a
inter-
being,
including
"person”
child,
as used
changeable manner bolsters
conclusion that
my
statute,
in the criminal homicide
Utah Code Ann.
the term
as used in that subsection was
"person”
§ 76-5-201.
intended
constitute
*10
required
prove
that the mother
including an
child” is would be
being,
had,
fact,
not to
and that the
homicide,
if-the death is caused
decided
abort
except that
pregnancy
reasonably likely
to come to
homicide. Utah Code
it is not
abortion
76-5-201(1) (1999).
ambiguity of
Defendant con-
term. Hence the moral
§Ann.
term “unborn child”
the statute.
provision
that this
is
tends
majority that the
agree
I
with the
vague.
¶ A56
statute that used the word “fetus”
unclear as to
statutory language is not so
rather than “unborn child”
be clearer
would
requirements.
minimal constitutional
violate
diversity
respectful
opin-
and more
of
Nonetheless,
society.
legisla-
ion in our
¶54
child” is not de-
The term “unborn
polemical
political
ture is entitled to use
entirely
clear
in the statute and is
fined
issues,
language,
highly
even on
controversial
society,
ordinary
usage.
In our
legal
or
long
language gives
so
as the
clear notice of
highly contro-
moral status of the fetus is
is intended to be
The
what
criminalized.
fetus,
many,
especially For
a
versial.
clearly
“child”
includes the unborn
word
liminal
stages
pregnancy,
of
exists in a
early
child”;
phrases
“quick
such ancient
state,
fully human and
somewhere between
indeed,
English Dictionary
the Oxford
re-
disagree
fellow
rad-
not human. Our
citizens
ports
appears
that it
to be descended from a
ically
period
developing
in this
of
over when
specifically referring to the
rath-
word
womb
sperm
ma-
egg
combined have
life
usage
er than an infant. The modern
legal
or
con-
enough to warrant moral
tured
believe,
child,”
“unborn
I
reflects less an
being.
a full human
as a
or
sideration
(like
Greenwood’s)
attempt
Professor
Americans, attempting to make
55 Some
many
make sense of how so
Americans can
surrounding
issues
fami-
sense of the difficult
believing
support
legal abortion while also
abortion,
ly responsibility and
reserve the
duty
that mothers have a
to care for their
born,
infants who have been
word “child” for
pre-natally,
children even
than the desire of
only
to a fetus as a “child”
begin
to refer
oppose
those who
abortion to find new lin-
they
there is a
point
at the
at which
believe
guistic opportunities
emphasize respect
that
it will
born.
reasonable likelihood
be
case, agree
I
the fetus.
In the context of this
Thus,
con-
example,
one commentator
majority
sufficiently
that it
clear
with the
Americans,
many
tends that in the view
classify
meant
family.
to a member of the
“child” refers
every
killing of
fetus as homicide and
Greenwood, Beyond
Daniel
Dwor-
See
JH
ordinary
intent.
citizens will understand that
Investments, Member-
kin’s Dominions:
passes “void for
76-5-201 therefore
Section
Life,
ships,
the Tree
and the Abortion
vagueness” muster.
Question,
(disput-
72 Tex. L.Rev. 471
that no one
ing Professor Dworkin’s view
76-5-202(1)(b)
II. Section
that a
is a moral
believes
fetus
76-5-202(l)(b), however, is a
57 Section
variety of reli-
arguing instead that a wide
It
different matter.
homicide
the fetus as
gious and secular observers see
if “the homicide was
becoming
en-
developing into
scheme,
act,
committed incident
to one
over
rights
titled to more
and consideration
conduct,
episode during
or criminal
course
moments,
time,
varying
others see
while
which two or more
were killed.”
birth,
those
ranging from the sex act to
when
(em-
76-5-202(l)(b) (1999)
§Ann.
Utah Code
attach).
period of
rights
Families have a
below,
phasis
As
a fetus is
discussed
begun in
pregnancy
time after
has
which
legal “person”
full
and cannot be so
not a
reject
responsibility
they
legally
still
the law of the United
constituted under
morally
raising
something
that is
child—
meaning of section
plain
States Utah.
they accept
develop-
impermissible once
76-5-202(l)(b)
killing a mother and
is that
usage, an “un-
ing fetus as a child. In that
aggravated homi-
cannot constitute
her fetus
only
refer
to a wanted
born child” would
cide.
sufficiently
developed to
pregnancy
far
legis-
Preliminarily, it is clear
likely
apply
to come to term. To
Utah’s
protect
to the fullest
prosecutor
lature is entitled to
perspective,
from that
*11
76-7-301.1(4) (1999).
A
fortio-
expecta-
mothers and their
Code
pregnant
extent
ri,
legal “person,”
to
if a
a
bringing
pregnancies
their
term.
fetus were deemed
tions of
agree
intentionally
legal
supporters
Even
of
abortion
its life could not be taken
destroys
developing
a
fetus
process
honoring pregnant
an assault which
a
woman’s “lib-
of
See, e.g.,
Roe,
54,
particularly
a
heinous crime.
erty
at 157 n.
interest.”
410 U.S.
Dominions,
Beyond
supra, at 489.
Dworldn’s
n.
S.Ct. 705 54.
person
a
by
attack
a third
on
A violent
reasons,
For these
as Justice Stevens
injures
her fetus
mother that also kills
stated,
has
the most
the mother alone. One of
than
ques-
ever
member of the Court has
[N]o
has been
experiences
of life’s
fundamental
[i.e.,
proposition
this fundamental
tioned
short;
bring forth
parents’ aspirations to
cut
“person”].
a
Thus as a
that a fetus is not
shattered;
a
generation have been
a new
law,
of
a de-
matter
federal constitutional
be;
family
will not
a life
that could have been
yet
“per-
veloping organism that is not
a
indepen-
developed into an
that could have
what is sometimes de-
son” does not have
extinguished. We
dent individual has been
“right
has
scribed as a
to life.” This
been
any
regarding
into
need not enter
debate
premise
...
remains a fundamental
of
and
itself to see that a state
status of the fetus
....
our constitutional law
may freely
for a homicide
increase penalties
respect
a fetus:
or an assault that also kills
Parenthood
Pa. v.
Planned
Southeastern
of
sufficient.
for the mother alone would be
Casey, 505 U.S.
112 S.Ct.
classify
legislature to
a
power
The
(1992)(Stevens, J.,
concurring
L.Ed.2d
unlawfully destroys a fe-
homicide that also
part
dissenting
part).
murder,
then,
tus as
is not
“person”
61 To declare a fetus a
is be-
rather,
is,
problem
issue here. The
Utah,
yond
of
of
power
the state
whether
clearly
The
legislature has not
done so.
through
legislature or its
acting
either its
applies
homicide statute
when
A
courts.
state cannot overrule
United
killed,
a
not a
two
are
and fetus is
Supreme
by changing who
States
Court
our law.
under
“person”
pur-
for constitutional
counts as
legal category with im-
59 “Person” is a
Stevens, quoting
poses.
Justice
Professor
portant consequences.
important, per-
Most
Dworkin, put
way:
it this
rights
sons
to
under the Four-
are entitled
suggestion
The
that states are free to de-
teenth Amendment of the United States
person ...
that a
clare a fetus a
assumes
It
denial
Constitution.
would be
obvious
[existing] persons’
can curtail some
state
doctors,
any-
equal protection
to allow
rights by adding
per-
constitutional
new
else,
kill
in order to save
one
to
one
population.
to the constitutional
The
sons
another,
clearly
process
a denial of due
rights
constitutional
of one citizen are
permit
any legal process at
this without
very
course
much affected who or what
Thus, declaring
all.
fetus to be
rights,
else has constitutional
because
equal protection
require
would
entitled
rights
may compete
or conflict
others
Wade,
only overturning Roe v.
any power
with his.
to increase the
So
(1973),
93 S.Ct.
which believe rate, anyAt no to have done so. seem defining op- as
statutory language “person,” being” “human
posed to “unborn child” or cited to us.
has been 63 If a fetus is not law,
language of the it follows defen- case, is,
dant in this heinous as his crime has
not committed murder within the
meaning of Utah Code section 76-5-
202(l)(b). only provision applies That when were killed.” In the
“two or hand, extinguished: two lives were
ease and that of the fetus
that of Ms. MaeGuire law, carrying. Under these
she was Utah prosecuted sepa- killings
two each be homicides, only
rate but one prosecuted for Defendant cannot be
killed. “persons,” only
killing two or more when one I “person.”
of his victims was a do not defendant can be tried for
believe 76-5-202(l)(b).
murder under section
STATE MONTOYA, Defendant
Peter Victor Appellant.
No. 20010458.
Supreme Court of Utah. 23, 2004.
Jan.