21 Val. U. L. Rev. 563 (1986-1987)
Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms

handle is hein.journals/valur21 and id is 571 raw text is: HOMICIDE OF THE UNBORN CHILD: THE
BORN ALIVE RULE AND OTHER LEGAL
ANACHRONISMS
CLARKE D. FORSYTHE*
The task of the historian of law is not merely one of recounting
the growth of jurisdiction of courts and legislatures or of detail-
ing the evolution of legal rules and doctrines. It is essential that
these matters be related to the political and social environments
of particular times and places. Broadly conceived, legal history
is concerned with determining how certain types of rules, which
we call law, grew out of past social, economic, and psychological
conditions, and how they accorded with or accommodated them-
selves thereto.'
The Minnesota Supreme Court, in State v. Soto,2 was recently asked
to decide whether the state vehicular homicide statute encompassed a viable
unborn child by the statutory phrase human being. The court held that
the statute did not encompass an unborn child and affirmed the trial court's
dismissal of an indictment against the defendant who killed an unborn child
of 8  gestational months. The court adopted the born alive rule-the
common law rule that only persons born alive can be subject to homi-
cide.8 By this decision, the court joined 22 other state courts which have
adopted the born alive rule.'
* Allegheny College (B.A. 1980); Valparaiso University (J.D. 1983); Staff Counsel,
Americans United for Life Legal Defense Fund, Chicago. The author wishes to gratefully
acknowledge the research assistance of Jeffrey A. Siderius, Esq., and the editorial comments of
Dennis J. Horan, Esq., Edward R. Grant, Esq., and Philip R. King, Esq. The author also
wishes to thank Maura K. Quinlan, Esq. for drafting the model legislation included herein,
and Clark W. Evans, Reference Librarian with the Library of Congress, Washington, D.C..
I. G. HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS viii (1960).
2. State v. Soto, 378 N.W.2d 625 (Minn. 1985).
3. 378 N.W.2d at 628.
4. See infra note 161 and accompanying text. Shortly before this article was published,
the Arkansas Supreme Court adopted the born alive rule. Meadows v. State, 722 S.W.2d 584
(Ark. 1987). The majority did not examine the purpose or origin of the born alive rule but
perceived the issue to be whether a court ought to create a new common law crime. Id. at
585. Starting with this premise, the majority concluded that the court should defer the crea-
tion of new crimes to the legislature. Id. at 586. Justice Hays dissented. He disagreed with
the issue as framed by the majority and reasoned that the court would not in any sense be
'creating' a crime but would merely be interpreting and applying the state manslaughter

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