concurring in part and dissenting in part:
I concur in affirming the conviction for the murder of Sharon Moss, but I must dissent from the reversal of the conviction for the murder of the fetus. The essential question here is when a fetus becomes a human being so that it is entitled to protection under the law. This question is certainly no stranger to controversy. At various times in history it has been promoted as doctrinal truth that humanity attaches at conception (immediate animation), at quickening (mediate animation) and at birth (animation at birth). (Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality, 14 N.Y.L.F. 411, 416 (1968).) No single view has achieved total acceptance in the law at any one time, and any harmony of thought seems remote in our time. However, it is not necessary to plumb the depths of one’s reason to reach the conclusion that it is wrong for there to be such a sizeable gap in our criminal law that a person may destroy a viable, 8½-month-old fetus with impunity. Even Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, the decision which legalized abortion to a limited extent, contained the restriction that, once viability occurs, the State may proscribe all abortions except those necessary to preserve the life or health of the mother. (410 U.S. 113, 163-64, 35 L. Ed. 2d 147, 183, 93 S. Ct. 705, 732; see generally, Corby, The “Right” to an Abortion, the Scope of Fourteenth Amendment “Personhood,” and the Supreme Court’s Birth Requirement, 1979 S. Ill. U.L.J. 1.) The reasoning of the court was that, once the fetus is viable, that is, able to live or survive apart from its mother (Schmidt, Attorneys’ Dictionary of Medicine 870, cited in Keeler v. Superior Court of Amador County (1970), 2 Cal. 3d 619, 641, 470 P.2d 617, 631, 87 Cal. Rptr. 481, 495 (Burke, J., dissenting); accord, Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1977, ch. 38, par. 81—22(2))), the State’s interest in potential life is compelling. I believe the viability argument takes on even greater force in the instant context, where a violent attack was made which destroyed the fetus. Such an attack should be punishable as murder.
What I find to be particularly puzzling is that the majority discusses at length the persuasive arguments of the State as to why this fetus should be considered to be a human being, concedes that there is “considerable merit” to these arguments, but then rejects the conclusion to be drawn from them. The majority instead states that if the General Assembly intended to make the destruction of a viable fetus murder, it could have so specified in the Illinois Abortion Law of 1975. But we are not dealing with an abortion in this case. We are not dealing with the intentional termination of a pregnancy by the use of any instrument, medicine, drug or any other substance or device (Ill. Rev. Stat. 1977, ch. 38, par. 81—22(6)), that is, as a medical procedure, performed by a physician and with the consent of the woman. Rather, we are here concerned with a violent attack upon the person of a woman who had carried a fetus for 8½ months, to the point where the fetus was fully viable. The General Assembly did not intend to provide for the instant situation in the Illinois Abortion Law of 1975, so of course there is no explicit statutory section which defines the acts involved here as murder. That does not mean, however, that the Illinois Abortion Law of 1975 is of no assistance in understanding the intent of the General Assembly as to the precise issue involved here. On the contrary, section 1 of the Act is of vast aid. It provides in relevant part:
“Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under [Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, and Doe v. Bolton (1973), 410 U.S. 179, 35 L. Ed. 2d 201, 93 S. Ct. 739], the General Assembly of the State of Illinois do solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State.” Ill. Rev. Stat. 1977, ch. 38, par. 81-21.
Notwithstanding this clear and unequivocal statement, the majority concludes that because the Supreme Court has said that a fetus is not a person for fourteenth amendment purposes and because the Illinois Abortion Law of 1975 does not provide for this precise factual situation, there is no manifestation that the General Assembly intended to punish the destruction of a fetus as murder. The majority fails to realize that the Supreme Court’s statement does not prohibit the States from making separate and different statutory rules which do bestow status as a person upon a fetus. That, of course, is precisely what the General Assembly did in this State when it passed legislation bestowing upon unborn children, through guardians or other personal representatives, the right to life (Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1977, ch. 38, par. 81—21)); the right to own property (Ill. Rev. Stat. 1977, ch. 83, par. 12.1); and the right to maintain actions and recover damages for wrongful death (Pub. Act 81—946, effective January 1, 1980, adding section 2.2 to the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq.).) It seems clear then that the General Assembly did intend to extend the protection of the law, including the criminal law, to the unborn. Extending the protection of the criminal law to, at the least, viable fetuses, would in no way infringe upon the mother’s right to privacy which was the linchpin of the decision in Roe v. Wade. It was stated there that the right to privacy is not absolute; it does not extend to the third trimester, when the fetus is presumed to become fully viable. 410 U.S. 113, 163-64, 35 L. Ed. 2d 147, 183, 93 S. Ct. 705, 732.
Thus, I think the destruction of the fully viable fetus in this case constituted murder. To hold otherwise is to resolve a doubt against the preservation of fetal life rather than in favor of it. To hold otherwise also absolves the defendant herein of any wrongdoing, although he cruelly denied a viable fetus, with the unbounded potential for life, of the opportunity to enjoy what rightfully belonged to it. I do not think the law of Illinois should countenance such a result.