Murder Applies to Fetus, Says Utah Judge

State Law Protects Viable and Non-viable Unborn Children, He Rules

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SALT LAKE CITY, Utah, JAN. 8, 2002 ( When Susan MacGuire was shot and killed a year ago, her unborn child also died. Counting the fetus as a human being, prosecutors charged the woman´s ex-husband with two counts of capital murder.

But Roger MacGuire´s defense attorneys argue there was only one death, claiming the 13- to 15-week-old fetus was not a person under Utah´s homicide statute because it could not have survived outside the womb.

On Monday, a 2nd District Court judge sided with prosecutors, a decision that likely will send the case to the Utah Supreme Court and force the justices to define what is an “unborn child,” reported the Salt Lake Tribune.

It will be the first appellate challenge of the statute since the state Legislature added the term to Utah´s homicide laws in 1983.

In his written ruling, Judge Michael Allphin said the Legislature clearly intended the term “unborn child” to refer to both a viable and non-viable fetus. MacGuire, therefore, can be tried for a double slaying, Allphin said.

Defense attorney Glen Cella had argued in December that Susan MacGuire´s fetus, fathered by her new fiance, was non-viable and not a human being. “The fetus carried by Mrs. MacGuire was a potentiality, not an unborn child,” Cella argued. “You cannot be held liable for killing a potentiality.”

The U.S. Supreme Court´s 1973 Roe v. Wade ruling, which legalized abortion, defined fetal viability as the point at which a fetus can survive outside the womb.

But Deputy Davis County Attorney William McGuire countered that the definition of a “person” in reproductive rights cases is not relevant in a criminal context. Judge Allphin agreed: “Reproductive rights cases are simply inapplicable to restrict the state´s interest in protecting unborn life.”

In addition, the judge said that “a plain reading” of the homicide statute led him to conclude “the Legislature intended to protect unborn children ´from the outset of pregnancy.´”

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