Dr. Nicola Riley is being held without bail in Utah following her arrest on December 28. 2011. She worked for Dr. Steven Brigham in New Jersey, who owns abortion clinics. Both of them have been charged with the crime of murder for performing late-term abortions in Maryland. Their apparent modus operandi was to “start” abortions in New Jersey and complete them in Maryland where abortion laws are less stringent.
Maryland has a Fetal Homicide Law that permits murder charges to be brought against people who “intend to cause the death of a viable fetus, yet specifically excludes physicians carrying out abortions. Section 2-103(e) Murder or manslaughter of viable fetus states:
Inapplicable to medical professionals administering lawful care. -- Nothing in this section subjects a physician or other licensed medical professional to liability for fetal death that occurs in the course of administering lawful medical care.
Reuters News reported on January 9th that : Cecil County State's Attorney Ellis Rollins said the case could be the first of its kind to test Maryland's 2005 fetal homicide law, under which murder charges can be brought against people who intend to cause the death of a viable fetus. The charge of murder could only stand if the medical treatment – the abortion – was found to be unlawful medical care.
About 38 other states have similar statutes and for the most part, these statutes have been applied, as the legislature intended, in criminal cases where an intentional injury to a pregnant woman that kills a fetus would result in a charge for murder.
The cases against Drs. Riley and Bingham are seemingly intended to test the use of this statute in cases of abortion. This case is especially egregious, as 35 and 36 week term fetuses are alleged to have been found in the doctors’ freezer.
Charges include both first and second degree murder.
In 2003, the United States Congress passed the partial birth abortion ban act defining defined as any abortion where the death of the fetus occurs when the “entire fetal head or any part of the fetal trunk passed the naval is outside of the mother’s body.”
(a) Any physician who…, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.
In the 2007 case of Gonzalez versus Planned Parenthood, the United State Supreme Court in a five to four decision held that the congressional ban on partial birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to have an abortion.
Under this federal statute, the penalty:
Any physician who, … knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.
It is unclear at this point what type of abortion was performed by Drs. Riley and Brigham.