'Unborn child' meaning questioned

The lawyer for a man charged with two counts of murder for allegedly shooting his pregnant ex-wife argued Wednesday before the Utah Supreme Court that a law against killing an unborn child is unconstitutionally vague.

Roger Martin MacGuire is appealing a January 2002 ruling in 2nd District Court that let stand the charge related to the fetus because the Legislature "intended to protect unborn children 'from the outset of the pregnancy.' "

His lawyer, Scott Wiggins, told the high court during oral arguments that the legal definition of an unborn child in the state's criminal homicide statute is not clear.

The statute prohibits the killing of any human being, including an unborn child.

"It's a wholly undefined term," Wiggins said, suggesting "unborn child" could refer to a number of stages of fetal development, including, for example, the standard of fetal viability set by the U.S. Supreme Court's landmark Roe v. Wade decision that legalized abortion.

Utah Assistant Attorney General Chris Ballard said the term unborn child "means any developing life within a woman's womb from the time of conception to birth." He said the term obviously covers the entire pregnancy because a legal exception has been made for abortion.

Ballard told the justices that four shots were fired at Susan MacGuire, including two "directly into her abdomen," demonstrating intent not just to kill her but also her unborn child.

MacGuire confronted Susan MacGuire in 2001 at the Layton insurance office where she worked after he learned she was pregnant, and she intended to marry the father of her child, Ballard said. She was determined to be 13 to 15 weeks along in her pregnancy.

Davis County prosecutors chose not to pursue the death penalty against MacGuire, from Sunset, in part because of the issue of whether the fetus could be considered in the capital murder charges.

His criminal trial has been stayed pending the outcome of this appeal.

The justices, who took the case under advisement, had a number of questions for the lawyers. Chief Justice Christine M. Durham asked why lawmakers chose the words unborn child instead of fetus, wondering if that created ambiguity about a link to viability.

Not so, Ballard said. Using the word "fetus" would have made the statute more confusing, he said, than using what he described as the "broad category" covered by the term unborn child.