State vs. Merrill, 540 N.W.2d 318 (Minn. 1990)
In a case decided by the Minnesota Supreme court in 1990, the defendant was indicted for first and second degree murder of an unborn child, in violation of a State homicide statute, which defined unborn child as the unborn offspring of a human being, conceived but not yet born, and which provided a punishment of up to 40 years in prison. The defendant had shot a woman in the stomach who died from the gunshot wounds. An autopsy revealed that she was pregnant with a 27- 28-day-old embryo, which the coroner concluded had no abnormality, which would have caused a miscarriage, and that the death of the embryo resulted from the death of the woman. It was unclear whether or not the woman or her assailant were aware of the pregnancy. The defendant moved to dismiss the indictment, based on denial of equal protection in failing to distinguish between a viable and nonviable fetus or embryo and also alleged vagueness. The defendant further claimed that he was subjected to possible punishment, while others could intentionally terminate the existence of a fetus or embryo without criminal sanctions. The court distinguished between these situations, stating that fetal homicide statutes seek to protect the potentiality of human life, they do so without impinging directly or indirectly on a pregnant woman's privacy rights. The court held that the possibility that female homicide victim may be pregnant is a possibility that an assaulter may not safely exclude and, in a 4-3 decision, upheld the indictment.
State vs. Bauer 471 N.W.2d 363 (Minn. App. 1991)
In a subsequent Minnesota case decided in 1991, a defendant was convicted of violating the fetal homicide statute, in connection with his conviction for assisting in the suicide of his girlfriend who was 6 months pregnant. The defendant claimed that the fetal homicide statute represented an establishment of religion. The Minnesota Court of Appeals held that the statute had a secular purpose, in part, relying upon a Missouri statutory preamble upheld in Webster vs. Reproductive Health Services17 that life begins at conception as applied to tort, property and criminal laws.
People vs. Davis, 872 P.2d 591 (Cal.1994)
In a 1994 California case, a California homicide statute, which provided that murder is the unlawful killing of a human being, or a fetus with malice aforethought, was upheld. The court, after an extensive review, held that the legislature may constitutionally criminalize the murder of a fetus without imposing a viability requirement, at least where the fetus has progressed beyond the embryonic stage of 7-8 weeks.