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SALT LAKE CITY — How far a woman's consent can go when it comes to an abortion is an issue now before the Utah Supreme Court.
The state's high court heard arguments in the case of a Vernal teenager, who in May 2009 when she was seven-months-pregnant, paid a man $150 to punch her repeatedly in the stomach so she would lose the baby.
"The issue in this case is if the Legislature intended to recognize punching a woman in the stomach as a procedure for abortion," assistant Utah attorney general Christopher Ballard said.
The 17-year-old girl was initially charged in juvenile court with criminal solicitation to commit murder, but the case was dismissed after a judge ruled that the Utah code defining abortion is "unambiguous" when it states, "a woman who is seeking to have or obtains an abortion for herself is not criminally liable."
Eighth District Judge Larry Steele said in his ruling that while the girl's actions were "shocking and crude," they were, nonetheless, legal under the state's current definition of abortion. The ruling cites Utah code in defining abortion as "the intentional termination or attempted termination of human pregnancy … and includes any and all procedures undertaken to kill a live unborn child and includes all procedures undertaken to produce a miscarriage."
The teen gave birth to a healthy baby, who was permanently removed from her custody by the state.
The high court first heard arguments on the girl's case, followed by arguments regarding the man charged with beating her. Arron Harrison pleaded guilty to attempted murder, a second-degree felony, but was instead sentenced to zero to five years in prison for attempted killing of an unborn child, a third-degree felony — a change in conviction made by the judge at the time of sentencing.
The debate on whether the girl's actions constituted an abortion or homicide came down to the definition of a procedure.
Ballard was adamant that the statute must have meant a medical procedure, which would be, presumably, more humane.
"The method in this case matters," the prosecutor said. "Even if a woman decides she wants to terminate her pregnancy, the state has an interest in making sure abortions are safe, humane and effective."
But the girl's attorney, Richard King said he would define a procedure as a series of events that leads to a certain result. He said the main element is that the woman had consented, leading Utah Supreme Court Justice Tom Lee to present a scenario in which a pregnant woman hires a hit man to shoot her fetus in such a way that would kill it while preventing injury to her.
"No, she's not criminally liable," King said in response.
"It has never been a law that people can consent to a homicide," Lee said. "That would be a pretty drastic move to say it's not homicide."
"That's where I think the woman's consent comes in," King said. "I believe abortions are a different class of cases."
The decision in the teenager's case will also impact the case involving Harrison as both hinge on the definition of an abortion under the statute.
The state challenged Harrison's sentence before the Utah Supreme Court Wednesday, as it had been affected by the ruling in the girl's case. Once it was determined she had, in fact, been seeking an abortion, Harrison was sentenced for a different, reduced charge. He remains in prison.
Ballard argued that the sentence was illegal and took issue with the fact that Harrison was not sentenced to the charge he pleaded to. But Chief Justice Christine Durham said she isn't sure the state even had a right to challenge the sentence.
Harrison's attorney, Michael Humiston, said he had to try to defend a sentence that he felt fit the statute, but hadn't been arrived at through the proper procedure, leading him to assert claims of ineffective assistance of counsel.
The statute was amended in 2010 to make an illegal abortion by a pregnant woman tantamount to criminal homicide, but Humiston said after the hearing that it doesn't matter in the case before the high court.
"The statute was ambiguous, the Legislature plugged the loophole, but they can't retroactively say: 'No, no,'" he said.
Email:emorgan@ksl.com
