WASHINGTON — Lawyers for an abortion doctor charged with murder in Maryland for the deaths of five fetuses have asked a judge to dismiss the charges, arguing that prosecutors lack jurisdiction because the deaths occurred in New Jersey.
Dr. Steven Brigham, 55, of Voorhees, N.J., lost his New Jersey medical license in 2010 after regulators discovered an arrangement under which he would begin second- and third-trimester abortions in New Jersey, and then have the patients drive themselves to Maryland the next day to complete the procedures.
His attorneys argued in a motion filed last week that the arrangement protects him from criminal prosecution in Maryland because Brigham administered drugs that killed the fetuses while the patients were in New Jersey. He then extracted the fetuses at his clinic in Elkton, Md., a small town in the northeast corner of the state.
Brigham's lawyers also argue that he is immune from prosecution under Maryland's fetal homicide law, which was intended to apply to people who kill or do physical harm to pregnant women, causing fetal death. The law includes exemptions for physicians administering lawful medical care, and Brigham's attorneys say using it against an abortion doctor interferes with a woman's constitutional right to terminate a pregnancy.
"By bringing these charges, the state has placed a chilling effect on doctors who perform abortions and thus will inhibit women from finding doctors who perform abortions even if the procedure is necessary to protect the life or health of the woman," attorneys Nancy Forster and C. Thomas Brown argue in their motion.
Cecil County State's Attorney Ellis Rollins declined to comment Monday.
Prosecutors have made few public statements about their rationale for the charges, although Rollins has acknowledged they are in uncharted territory. Experts on both sides of the abortion debate say it is highly unusual, if not unprecedented, to charge an abortion doctor with murder under a fetal homicide law. Thirty-eight states have such statutes.
At a bail review hearing earlier this month in Cecil County Circuit Court for Brigham's co-defendant, Dr. Nicola Riley, Deputy State's Attorney Kerwin Miller suggested that prosecutors believe any death of a viable fetus to be homicide, regardless of the circumstances.
"The law is clear that if is unlawful, as a matter of fact it is homicide, when you kill a viable fetus," Miller said, according to a transcript of the proceeding. "So an abortion on a viable fetus is not a lawful procedure, is not lawful medical care."
In their motion, Brigham's attorneys also take issue with prosecutors' characterization of the fetuses as viable, arguing that the state has no right to interfere with a doctor's judgment about the need for an abortion.
Maryland's fetal homicide law, the attorneys argue, "leaves the determination of viability to the 'best medical judgment of the attending physician.' If a doctor determines that the fetus is not viable, for whatever reason, and the state disagrees with that determination, under their theory, the doctor can be charged with fetal homicide."
Doctors generally consider fetuses to be viable outside the womb starting around 23 weeks. Prosecutors have not detailed how they determined the viability of the five fetuses Brigham is accused of killing. One of them was known to have been aborted at 21 weeks.
Riley, Brigham's former colleague, also has been charged with murder in the death of that 21-week-old fetus. Her attorneys also have argued that she is immune from prosecution under the fetal homicide law. Both Brigham and Riley, of Salt Lake City, Utah, are free on bond.
In the case that led to charges against both Brigham and Riley, the patient suffered serious injuries, and Riley drove her to a nearby hospital rather than call 911. That case alerted medical regulators to Brigham's unusual arrangement, which authorities described as an effort to take advantage of Maryland's more permissive abortion laws. Brigham was not licensed to perform abortions after the first trimester in New Jersey.
In Maryland, licensed physicians can perform abortions before the fetus is deemed capable of surviving outside the womb, and abortions of viable fetuses are permitted to protect the life or health of the mother or if the fetus has serious genetic abnormalities.