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A 17-year-old pregnant girl who hired a man to punch her belly may again face criminal penalties following a Tuesday ruling by the Utah Supreme Court that the beating does not fall within the statutory definition of abortion.
A juvenile court judge dismissed the case in 2009, finding that the girl couldn't be held criminally liable for the failed attempt to abort her unborn child but the high court reversed that decision.
"The Utah Code's definition of abortion contemplates only procedures that are medical in nature," the high court wrote in a unanimous decision. "We hold that the solicited assault of a woman to terminate her pregnancy is not a 'procedure,' as contemplated by statute, and therefore does not constitute an abortion."
During a hearing before the high court in April, Assistant Utah Attorney General Chris Ballard argued that when lawmakers exempted women from criminal prosecution for murder when seeking an abortion, they envisioned women would seek abortions in a "safe, humane" manner through typical medical procedures.
Vernal attorney Richard King, however, argued the girl was well within her rights when she hired 21-year-old Aaron Harrison to beat her up so she would miscarry.
"Any abortion is an assault on a fetus," King said, adding that Utah law at the time of the incident didn't specify what types of abortion procedures were not allowed, meaning the teenager couldn't be held accountable.
"The issue is whether soliciting someone [to kill a fetus] is an abortion," King said. "The statute at the time indicates that it is."
Justice Thomas Lee suggested a scenario in which a woman hires a hit man from the mafia to shoot a bullet into her pregnant stomach as a way to seek an abortion.
"Would an ordinary, average person think of that as an abortion?" Lee said. "I think it's kind of a stretch to say most people would look at that and call it an abortion."
The Uintah County Attorney's Office and Utah Attorney General's Office asked the high court to overturn 8th District Juvenile Court Judge Larry Steele, who in November 2009 threw out the case against the girl, identified in court documents as J.M.S.
The girl was originally charged in May 2009 with second-degree felony criminal solicitation to commit murder.
According to charging documents and court testimony, Aaron Harrison accepted $150 from the then-17-year-old girl, who he met at a Naples 7-Eleven. He brought the girl to the basement of his parent's house, where he kicked her in the stomach five times and bit her neck.
The girl pleaded no contest to the charge in June 2009. Steele ordered her placed in secure confinement until she is 21. Steele then reversed himself and released the girl after her attorney argued she did not commit a crime.
The ruling sparked state Rep. Carl Wimmer, R-Herriman, to bring the issue to the Legislature and propose a bill which became a law allowing prosecutors to charge a woman with criminal homicide for arranging an illegal abortion.
Ballard said Tuesday the A.G.'s office is "pleased" with the opinion.
"We always thought the juvenile court misinterpreted the statutes, and the Utah Supreme Court ruling today confirms that," Ballard said.
The girl gave birth in August 2009, and the baby was adopted by a relative. The girl told police she solicited Harrison to assault her after her boyfriend threatened a breakup if she didn't terminate her pregnancy.
Harrison's case also was before the Utah Supreme Court, which on Tuesday reversed a district court judge's decision regarding Harrison's sentence.
In October 2009, 8th District Judge A. Lynn Payne sentenced Harrison to serve up to five years in prison for his role in the beating. Payne sentenced Harrison in four other unrelated cases the same day three of them third-degree felonies. Payne ordered the terms to run consecutively, meaning Harrison could serve up to 20 years behind bars. The Utah Board of Pardons and Parole has set a hearing date for August of 2017.
The A.G.'s office appealed, questioning why Payne sentenced Harrison to third-degree felony attempted killing of an unborn child, when a plea agreement reached with prosecutors was for a more serious count of attempted murder.
Ballard has called Payne's decision to sentence Harrison under a different charge "an illegal sentence." Harrison's defense attorney, Michael Humiston, had asked the high court to uphold Payne's decision.
In a split decision, the justices voted to vacate Harrison's sentence and send the case back to district court. Chief Justice Christine Durham offered a dissenting opinion, writing that she didn't believe the state can appeal Payne's decision.