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The Supreme Court of Pennsylvania, in Commonwealth of Pennsylvania v. Matthew Bullock,1 unanimously upheld the constitutionality of an act that makes it a criminal offense for anyone—other than the pregnant woman herself or doctors “engaged in good faith medical practice” or performing an abortion—to kill an unborn child. The court rejected three constitutional challenges by Mr. Bullock, including an equal protection argument in which Bullock essentially argued that the father of an unborn child should not be treated differently than a mother who kills her unborn child. The majority found that the pregnant mother, because she is physically carrying the child, is not similarly situated to the father or anyone else, and it therefore was not arbitrary for the legislature to carve out an exception for the mother from the fetal homicide restrictions that apply to everyone else.2 Justice Baer joined the majority in full, but wrote separately to stress that Roe v. Wade3 “and its progeny remain the law in this nation and any attempt, based upon the legislature’s choice of language in the Act, to undermine its constitutional imperative is unavailing.”4

Factual Background

Bullock’s girlfriend, Lisa Hargrave, was twenty-two to twenty-three weeks pregnant when, on New Year’s Eve (2002), the two of them ingested cocaine and alcohol at a party. After returning to their apartment, Hargrave continued ingesting cocaine, ignoring Bullock’s request that she stop doing so—at least for the rest of the night—given her pregnancy. Bullock, in a confession to police, stated that he then “blacked out” while arguing about this and when he regained consciousness found that he was on top of Hargrave, choking her. Worried that Hargrave would call the police, Bullock tied her up, later returning to tape her mouth shut, and ultimately strangling her to death when she continually tried to free herself. The unborn child died of asphyxia. A jury found Bullock guilty of third degree murder as to Hargrave and guilty of voluntary manslaughter as to the unborn child. Bullock’s appeal to the Pennsylvania Supreme Court concerned only the voluntary manslaughter conviction under Pennsylvania’s Crimes Against the Unborn Child Act.5

Statutory Scheme

Pennsylvania’s Crimes Against the Unborn Child Act, passed in 1997 and effective on March 31, 1998, is intended to protect unborn children from unlawful injury or death. It establishes three levels of murder, as well as voluntary manslaughter and aggravated assault of an unborn child,6 none of which applies to consensual abortion, doctors engaged in good faith medical practice, or pregnant women with regard to their own pregnancies. Under the Act, an unborn child is defined, by reference to the Abortion Control Act,7 as a fetus at any stage of gestation.8 Voluntary manslaughter of an unborn child is defined as negligently or accidentally killing an unborn child, without legal justification, in the course of trying to kill someone else who has done something to seriously provoke “sudden and intense passion” in the would-be killer.9

Constitutional Challenges Unavailing

Bullock argued that the Act was unconstitutionally vague and overbroad and that it violated his right to equal protection. According to Bullock, the Act was impermissibly vague because a person of ordinary intelligence could not understand what “death” means when applied to a non-viable fetus.10 Because the Act did not require that the fetus be viable outside the womb at the time of death, the Act did not provide fair warning of precisely what conduct was criminal—if the fetus was not viable outside the womb, it was not actually alive and so could not suffer death from anything someone might do to it.11 The court cut short this argument, noting that the definition of unborn child to include all stages of gestation was “neither obscure nor difficult to grasp;” viability outside the womb was not required for people to understand what would constitute killing a fetus.12 The statute’s protection was intended to extend to a fetus, not to “define the concept of personhood or establish when life as a human being begins and ends.”13 The court stated that “the concepts of life and its cessation are readily understandable by persons of ordinary intelligence relative to biological life forms beginning at the cellular level . . . Accordingly, viability outside of the womb is immaterial to the question of whether the defendant’s actions have caused a cessation of the biological life of the fetus.”14

The court also rejected the overbreadth argument. As an initial matter, it viewed the claim as sounding in substantive due process (not overbreadth, because overbreadth only applies to First Amendment claims).15 Noting that substantive due process “‘provides heightened protection against government interference with certain fundamental rights and liberty interests,’”16 the court pointed out that Bullock had no right “to unilaterally kill the unborn child carried by another person” and that the United States Supreme Court has affi rmed that states have an “‘important and legitimate interest’ in protecting fetal life at all stages, even if that interest only becomes ‘compelling’ at viability.”17 Bullock’s substantive due process claim failed because he could not identify any fundamental right infringed by the Act.18

Bullock’s final, and perhaps most significant, constitutional argument was that his right to equal protection was violated by a statute that held a natural father criminally responsible for harm he caused to his unborn child, but excused a mother from such conduct merely by reason of her pregnancy.19 The court disagreed. Legislatures can draw reasonable classifications; and the appropriate level of scrutiny “depends upon the type of categorization involved and the nature of the right affected.”20 The challenged distinction consisted of “the mother versus everyone else.” It did not involve invidious distinctions based on race, national origin, gender or legitimacy that would be subject to heightened scrutiny.21 And the right that Bullock asserted—to unilaterally kill the unborn child that another was carrying—“is neither fundamental nor important—indeed it does not exist.”22 Thus, rational-basis review was proper and the Act passed muster. The legislature’s purpose in distinguishing between the mother and everyone else was deemed rational: “[s]imply put, the mother is not similarly situated to everyone else, as she alone is carrying the unborn child.”23 

The court then went on to reject Bullock’s non-constitutional challenges to a jury instruction.24

Justice Baer wrote a concurring opinion on the constitutional challenges because he felt the need to stress that the court’s opinion offered no basis to undermine Roe. The United States Supreme Court “has clearly concluded that states have an important and legitimate interest in protecting fetal gestation from the outset of a pregnancy through the birth of a child” and the legislature was acting consistent with that interest when it passed the Act.25 However, the legislature was only criminalizing “certain acts that would result in the cessation of the gestational process.”26 It was not attempting to define the concept of personhood or to define when life begins or ends. And the court, in upholding the Act, was not defining a fetus “as a life-in-being” nor was it “endorsing the notion that the interruption of the reproductive process is the killing of human life. Roe and its progeny remain the law in this nation and any attempt, based upon the legislature’s choice of language in the Act, to undermine its constitutional imperative is unavailing.”27

 

Endnotes

1 --- A.2d ---, 2006 WL 3797944 (12/27/06), hereinafter Bullock. 

2 Bullock, slip op. at 6. 

3 410 U.S. 113 (1973). 

4 Bullock, slip op. at 8. 

5 18 Pa.C.S. §§ 2601-2609 (hereinafter “the Act”). 

6 See 18 Pa.C.S. §§ 2604-2606. 

7 18 Pa.C.S. §§ 3201-3220. 

8 More precisely, the Abortion Control Act defines both an “unborn child” and a “fetus” as “an individual organism of the species homo sapiens from fertilization until live birth.” 18 Pa.C.S. § 3203, cited in the Act’s definition of “unborn child” at 18 Pa.C.S. § 2602. 

9 18 Pa.C.S. § 2605(a). 

10 Bullock, slip op. at 2-3. 

11 Id. at 2. 

12 Id. at 3. 

13 Id., citing State v. Merrill, 450 N.W.2d 318, 324 (Minn. 1990). 

14 Id. at 3-4. 

15 Id. at 4. 

16 Id. at 4, quoting Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). 

17 Id. at 4, quoting Roe, 410 U.S. at 163, and citing, among others, Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992). 

18 Id., slip op. at 4. 

19 Id. at 5. 

20 Id. 

21 Id. 

22 Id. 

23 Id. 

24 Id. at 6-8. 

25 Id. at 8. 

26 Id. (emphasis added). 

27 Id.

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