In a Nutshell

• The highest state court in Massachusetts has upheld two first-degree murder convictions of a man who stabbed his girlfriend to death, incidentally causing the death of their nine-month unborn child.
• The court upheld precedent that an unborn baby capable of living outside of the mother’s body is a person under state law when it comes to homicide.
• The same court recognizes abortion as a fundamental right under the state constitution.
• Pro-lifers say the two principles don’t connect logically.

 

BOSTON — A Massachusetts court ruling upholding a murder conviction in the death of a near-full-term unborn child has pro-lifers crying double standard.

The state’s highest court has upheld two first-degree murder convictions against a man who stabbed his pregnant girlfriend to death: one for the woman and one for what the court called “their child.”

The court followed its precedent in a 1984 case (Commonwealth v. Cass) in which a driver was convicted of motor vehicle homicide after his vehicle struck a woman who was eight and a half months pregnant, resulting in the death of her child. In that case — upheld last week — the court said “a viable fetus is a person” when it comes to the state’s reckless-driving law.

Viability means that an unborn child is capable of living outside of the mother’s body; as a legal standard, it usually covers the third trimester of pregnancy.

The Feb. 14 ruling does not mention abortion or abortion law, which remains the same in Massachusetts — it’s legal through 24 weeks; and, after that, under certain conditions, including the “mental health” of the mother. It’s also publicly funded, both for poor women who qualify for the state’s Medicaid program and through public subsidies to private funds that pay for abortions.

But some pro-lifers see a connection between the double-homicide case decided last week and abortion — and a disconnection in the court’s legal reasoning. 

One legal scholar told the Register that the Massachusetts court decision is an example of what some pro-lifers call the “abortion distortion” — one norm when it comes to abortion and a different norm when it comes to everything else.

“Ever since Roe v. Wade, there’s always been this double standard — that for the purposes of common law, tort law, homicide law, the unborn child is a human being, but not for abortion law,” said Dwight Duncan, a law professor at University of Massachusetts School of Law, in a telephone interview.

The Case

The Feb. 14 homicide decision, Commonwealth v. Peter Ronchi, concerns a man who in May 2009 stabbed to death his girlfriend at her apartment in Salem, Massachusetts, about a week before her due date. Her unborn child also died, not from stab wounds (which were concentrated in the woman’s torso, neck and head) but from loss of blood circulation from the mother. 

According to the defendant, Peter Ronchi, the two had had a heated argument over the woman’s mothering decisions, during which she falsely told him the child, a boy whom she had named David, was not his.

A footnote in the prosecutors’ appellate brief offers a practical guide to its phrasing: “Although the Commonwealth (and the law) recognizes that the fetus was a victim of murder, the Commonwealth will refer to [Yuliya] Galperina as ‘the victim’ and her unborn child as ‘the fetus.’”

The Massachusetts Supreme Judicial Court upheld the two consecutive life sentences the trial-court judge gave the defendant. Among other things, the court found no problem with the trial court’s instructions to the jury, including: “Killing is not murder unless a human being has been killed. A viable fetus is a human being under the law of homicide. A fetus is viable when there is a reasonable likelihood of the fetus’s sustained survival outside the womb, with or without artificial support.”

While discounting the defendant’s legal arguments, the state Supreme Judicial Court also took the opportunity to overturn one of its long-standing precedents, that “oral revelations of infidelity” might rise to the standard of mitigating guilt in a domestic-relationship homicide. The court said that mitigation standard has “run its course,” saying it “rests upon a shaky, misogynistic foundation and has no place in our modern jurisprudence.”

‘Person’ and Abortion

The 14th Amendment of the U.S. Constitution says: “No State shall … deprive any person of life, liberty, or property, without due process of law …”

That makes defining “person” a big deal. Harry Blackmun, the U.S. Supreme Court justice who wrote the Roe v. Wade decision legalizing abortion nationwide in 1973, acknowledged as much in that decision, when he noted that defenders of the pre-Roe anti-abortion statute in Texas argued that the unborn child is a person.

“If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment,” Blackmun wrote.

But Blackmun concluded that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,” which enabled the court to find that abortion was a constitutional right up to “viability,” when the government may be said to have an “important and legitimate interest in potential life.”

New York state legislators declared that an unborn child is not a person three years ago. In January 2019, Andrew Cuomo, the governor of New York at the time, signed into law a bill passed by the state Legislature that defines “person,” “when referring to the victim of a homicide,” as “a human being who has been born and is alive.”

Abortion vs. Car Accident

Roe v. Wade is no longer binding precedent because the U.S. Supreme Court overturned it in Dobbs v. Jackson Women’s Health Services in June 2022, sending abortion law back to the states.

Yet Roe’s logic still reverberates, particularly in still-binding state court decisions that latched onto the viability standard and used it when shaping a right to abortion under a state constitution.

One of those states is Massachusetts. In 1981, the Massachusetts Supreme Judicial Court recognized a “fundamental right of choice” when it comes to abortion, saying that the state constitution “affords a greater degree of protection to the right” than previous U.S. Supreme Court decisions of the time. (The Massachusetts case is called Moe v. Secretary of Administration and Finance.)

Three years later, the same court declared the post-viability unborn child a person when it comes to a motor-vehicle accident, in Commonwealth v. Cass. In that case, the court decided that “infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. … We believe that our criminal law should extend its protection to viable fetuses.”

Nate Kellum, chief counsel with Center for Religious Expression, a legal group in Memphis, Tennessee, that defends expressions of Christian conscience, told the Register the court can’t logically reconcile one with the other.

“The ruling reveals the hypocrisy of laws upholding so-called right of abortion. Under ordinary circumstances, a homicide is assessed by elements of the crime: The defendant caused the victims’ death with intent to kill or reckless, wanton disregard for life. This description fits every abortion. The Massachusetts Supreme Judicial Court rightly found the infliction of injuries on a preborn baby to cause death is a homicide. It should find same when the murderous act is called an abortion,” Kellum told the Register by email.

Andrew Beckwith, president of the Massachusetts Family Institute, told the Register the distinction between fetal deaths in a stabbing death and fetal deaths in abortion is “an untenable, illogical situation.”

“The implications are clear — that we have a legal framework where the only thing that separates abortion from homicide is the mother’s permission,” Beckwith said.

It’s a common circumstance throughout the country, said Edward Whelan, former president of the Ethics and Public Policy Center in Washington.

“The ruling reflects a long-standing inconsistency in state laws. It’s as if the mother’s wishes determine whether or not the baby she is carrying is a human being,” said Whelan, now a senior fellow and holder of the center’s Antonin Scalia Chair in Constitutional Studies, by email.

‘Viability’ Still Viable?

The origin of the problem, said C.J. Doyle, executive director of the Catholic Action League of Massachusetts, is the viability standard in Roe v. Wade.

“The unheard-of notion that life begins at viability is an unscientific assertion invented by an intellectual mediocrity — Harry Blackmun — to effect a political settlement of a moral crisis. Blackmun’s legal revolution, disguised as a judicial decision, and disconnected from the Constitution and natural law, was a failure,” Doyle told the Register by email.

“Closely related to this is the concept of ‘conferred value,’ whereby a mother, in deciding not to kill her baby, somehow bestows humanity upon the child, and with it, the protections of legal personhood,” Doyle continued. “This is, of course, arbitrary and capricious, and establishes a definition of human life which is, entirely, subjective and revocable. The whole controversy speaks to the inconsistency, irrationality, and incoherence of legal abortion.”