State v. Merrill

• Decision Date: 19 January 1990
• Docket Number: No. C7-89-766,C7-89-766
• Parties: STATE of Minnesota, Plaintiff, v. Sean Patrick MERRILL, Defendant.
• Court: Minnesota Supreme Court

Page 318

450 N.W.2d 318

58 USLW 2463

STATE of Minnesota, Plaintiff, v. Sean Patrick MERRILL, Defendant.

No. C7-89-766.

Supreme Court of Minnesota.

Jan. 19, 1990.

Syllabus by the Court

The fetal homicide statutes enacted in 1986 do not, with respect to defendant, offend the Equal Protection Clause; nor are the statutes void for vagueness under the Due Process Clause.

Kevin A. Lund, Patterson, Restovich, Lund Law Offices, Ltd., Asst. Olmsted County Public Defender, Rochester, for defendant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Raymond F. Schmitz, Olmsted County Atty., Rochester, for plaintiff.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

Defendant has been indicted for first- and second-degree murder of Gail Anderson and also for first- and second-degree murder of her "unborn child." The trial court denied defendant's motion to dismiss the charges relating to the unborn child but certified for appellate review two questions:

1. Do Minn.Stat. §§ 609.2661(1) and .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?

2. Are [said statutes] void for vagueness?

On November 13, 1988, Gail Anderson died from gunshot wounds allegedly inflicted by the defendant. An autopsy revealed Ms. Anderson 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 Ms. Anderson. 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 Anderson embryo was not viable. Up to the eighth week of development, it appears that an "unborn child" is referred to as an embryo; thereafter it is called a fetus. The evidence indicates that medical science generally considers a fetus viable at 28 weeks following conception although some fetuses as young as 20 or 21 weeks have survived. The record is unclear in this case whether either Ms. Anderson or defendant Merrill knew she was pregnant at the time she was assaulted.

Defendant was indicted for the death of Anderson's "unborn child" under two statutes entitled, respectively, "Murder of an Unborn Child in the First Degree" ¹ and "Murder of an Unborn Child in the Second Degree." ² These two statutes, enacted by the legislature in 1986, follow precisely the language of our murder statutes, except that "unborn child" is substituted for "human being" and "person." See footnote 4, infra. The term "unborn child" is defined as "the unborn offspring of a human being conceived, but not yet born." Minn.Stat. § 609.266(a) (1988).

This legislative approach to a fetal homicide statute is most unusual and raises the constitutional questions certified to us. Of the 17 states that have codified a crime of murder of an unborn, 13 create criminal liability only if the fetus is "viable" or "quick." Additionally, two noncode states have expanded their definition of common law homicide to include viable fetuses. See Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984); State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). Arizona and Indiana impose criminal liability for causing the death of a fetus at any stage, as does Minnesota, but the statutory penalty provided upon conviction is far less severe. Ariz.Rev.Stat.Ann. § 13-1103(A)(5) (1989) (5-year sentence); Ind.Code Ann. § 35-42-1-6 (Burns 1985) (2-year sentence).

Before discussing the Minnesota statutes, three preliminary observations must be made. First, to challenge successfully the constitutional validity of a statute, the challenger bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. E.g., Wegan v. Village of Lexington, 309 N.W.2d 273, 279 (Minn.1981); Contos v. Herbst, 278 N.W.2d 732, 736 (Minn.1979), appeal dismissed sub nom., Prest v. Herbst, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979). Second, there are no common-law crimes in this state. Minnesota is a "code state," i.e., the legislature has exclusive province to define by statute what acts constitute a crime. State v. Soto, 378 N.W.2d 625, 627 (Minn.1985). And, third, the role of the judiciary is limited to deciding whether a statute is constitutional, not whether it is wise or prudent legislation. AFSCME Councils 6, 14, 65, and 96 AFL-CIO v. Sundquist, 338 N.W.2d 560, 570 (Minn.1983). We do not sit as legislators with a veto vote, but as judges deciding whether the legislation, presumably constitutional, is so.

I.

Defendant first contends that the unborn child homicide statutes violate the Equal Protection Clause. Defendant premises his argument on Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), which, he says, holds that a nonviable fetus is not a person. He then argues that the unborn child criminal statutes have impermissibly "adopted a classification equating viable fetuses and nonviable embryos with a person." ³

Assuming the relevance of defendant's stated premise, defendant has failed to show that the statutory classification impinges upon any of his constitutional rights. The equal protection clause of the Fourteenth Amendment requires that all persons similarly situated be treated alike under the law. Matter of Harhut, 385 N.W.2d 305, 310 (Minn.1986). Defendant does not claim, nor can he, that he is within the class the statutes are designed to benefit, namely, unborn children. Rather, it appears, defendant is claiming he is in the class burdened by the law.

If we understand defendant correctly, he is claiming the statutory classification, by not distinguishing between viable and nonviable fetuses, exposes him to conviction as a murderer of an unborn child during the first trimester of pregnancy, while others who intentionally destroy a nonviable fetus, such as a woman who obtains a legal abortion and the doctor who performs it, are not murderers. In other words, defendant claims the unborn child homicide statutes expose him to serious penal consequences, while others who intentionally terminate a nonviable fetus or embryo are not subject to criminal sanctions. In short, defendant claims similarly situated persons are treated dissimilarly.

We disagree. The situations are not similar. The defendant who assaults a pregnant woman causing the death of the fetus she is carrying destroys the fetus without the consent of the woman. This is not the same as the woman who elects 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 are based on the woman's constitutionally protected right to privacy. This right encompasses 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 predominates over the right to privacy, which is usually at viability. Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 731. Roe v. Wade protects the woman's right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.

As defendant points out, the United States Supreme Court has said that an unborn child lacks "personhood" and is not a person for purposes of the Fourteenth Amendment. Roe v. Wade, 410 U.S. at 158, 93 S.Ct. at 729. The focus of that case, however, was on protecting the woman from governmental interference or compulsion when she was deciding whether to terminate or continue her pregnancy. "[T]he right in Roe v. Wade can be understood only by considering both the woman's interest and the nature of the State's interference with it." Maher v. Roe, 432 U.S. 464, 473, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977). Significantly, the Roe v. Wade court also noted that the state "has still another important and legitimate interest in protecting the potentiality of human life." Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731 (emphasis in original). Even laws which directly impact on abortion are constitutional so long as the statute itself does not impinge on the woman's decision. See, e.g., Webster v. Reproductive Health Services, --- U.S. ----, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (state prohibition of use of public facilities and employees to perform abortion unless life of woman endangered upheld). In our case, the fetal homicide statutes seek to protect the "potentiality of human life," and they do so without impinging directly or indirectly on a pregnant woman's privacy rights.

The state's interest in protecting the "potentiality of human life" includes protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protects, too, the woman's interest in her unborn child and her right to decide whether it shall be carried in utero. The interest of a criminal assailant in terminating a woman's pregnancy does not outweigh the woman's right to continue the pregnancy. In this context, the viability of the fetus is "simply immaterial" to an equal protection challenge to the feticide statute. Smith v. Newsome, 815 F.2d 1386, 1388 (11th Cir.1987).

We conclude that sections 609.2661(1) and 609.2662(1) do not violate the Fourteenth Amendment by failing to distinguish between a viable and a nonviable fetus.

II.

A more difficult issue, as the trial court noted, is whether the unborn child criminal statutes are so vague as to violate the Due Process Clause of the Fourteenth Amendment. Defendant claims the statutes are unconstitutionally vague because they fail to give fair warning of the prohibited conduct and because they encourage arbitrary and discriminatory...