Constitutional Law — homicide of unborn child — equal protection

Listen to this article

Wisconsin Court of Appeals

Criminal

Constitutional Law — homicide of unborn child — equal protection

It does not violate equal protection to convict a defendant for homicide of an unborn child by intoxicated use of a motor vehicle.

“A pregnant woman who engages in conduct which causes the death of or harm to the unborn child within her, necessarily jeopardizes her own life or health by engaging in such conduct. If the pregnant woman drinks excessively, overdoses on drugs, or stabs herself in the abdomen, to use Benson’s examples, causing risk of death or harm to the unborn child, she necessarily risks death or harm to herself as well. No one else, including Benson, inherently risks death or harm to himself or herself by engaging in conduct which causes the death of or harm to an unborn child living within another individual. Further, of the two ‘groups’ who might cause the death of or harm to an unborn child by intoxicated use of a motor vehicle, only the pregnant woman has the ability to subsequently procure medical care for the unborn child or terminate her pregnancy.”

“Because neither Benson nor anyone else is similarly situated to a pregnant woman who engages in conduct which causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation.”

Affirmed and Remanded.

Recommended for publication in the official reports.

2011AP1399-CR State v. Benson

Dist. II, Waukesha County, Davis, J., Gundrum, J.

Attorneys: For Appellant: Buting, Jerome F., Brookfield; For Respondent: Balistreri, Thomas J., Madison; Schimel, Brad, Waukesha