(concurring in part, dissenting in part):
I concur in the majority opinion that Minn.Stat. §§ 609.2661(3) and .2662 (1988) do not violate the Equal Protection Clause of the United States Constitution. Likewise, I concur in the conclusion that the two statutes on their face are not void as violative of the Due Process Clause. Therefore, I join Part I and Part II A of the Court’s opinion. However, because I conclude that the unborn child criminal statutes are fatally vague so as to invite, or permit, arbitrary and discriminatory enforcement, I would hold they unconstitutionally infringe upon the Due Process Clause, and, accordingly, would reverse. See Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 520-21, 15 L.Ed.2d 447 (1966); State v. Peterfeso, 283 Minn. 499, 501, 169 N.W.2d 18, 19 (1969).
Each of the statutes under attack in this appeal employs the phrase “causes the death of an unborn child.” As appellant points out, neither statute defines the phrase, nor does either set out particular*325ized standards to afford guidance to a court or a jury for use in construing the phrase. In short, both statutes leave when “death” occurs, or, for that matter, when “life” commences undefined. Absent such definition, it seems to me the phrase “causes the death of an unborn child” is burdened with ambiguity which, by its very nature, invites arbitrary and discriminatory enforcement. The result, as I see it, is that by necessity trial courts are left to wrestle with metaphysical, medical and legal concepts relative to the commencement and cessation of life in order to apply these statutes in a criminal prosecution.
The statutes’ ambiguous phraseology almost inevitably requires at some point during the criminal proceeding involving a charge of feticide that the trial judge, in order to administer them, determine when life begins in order to rule on motions or to structure jury instructions. Without adequate definitional standards for guidance, it is not only possible, but probable, in my opinion, that different judges might resolve the issue differently. A representative but nonexclusive listing of types of issues likely to arise in the course of a feticide prosecution include: Should death be defined as cessation of brain activity? Is there life before brain activity? Should death be defined as a cessation of function of the circulatory system? If so, is there life before that even though brain activity has not been commenced? Does life not commence until viability and death only when the fetus is destroyed thereafter? Does life commence at the moment of conception and death occur when the embryo is thereafter exterminated? The fact that any of these and, perhaps, other similar questions may be logically answered in the affirmative, I think, serves to illustrate that, absent statutory criteria, the present statute permits judges freedom to make rulings and charge juries according to their own predilections; and juries are free to decide what conduct is prohibited in each case— results that are, or could be, both arbitrary and discriminatory. See, e.g., Peterfeso, 283 Minn, at 501, 169 N.W.2d at 19.
It cannot be gainsaid that few topics today compel as fierce public debate and evoke the passionate convictions of as many of our citizens as does the issue of when “life” in a fetus begins. In view of the stridency of that debate,. it appears conceivable, perhaps even predictable, that two juries having the same evidence could arrive at the same factual conclusions, but due to divergent and strongly held beliefs arrived at a dissimilar legal result. By way of example, in the case before us, one jury sharing a common viewpoint of when life commences could find the defendant guilty of fetal murder, whereas another whose members share the view that life was nonexistent in a 26 to 28-day-old embryo, could exonerate the appellant.
The likelihood of discriminatory enforcement is further enhanced when the discretionary charging function possessed by a grand jury is considered. The decision to charge must be concurred in by only a majority of the panel. Minn.R.Crim.P. 18.-07. Thus, the decision to charge or not may well pivot on the personal philosophical and moral tenets of a majority of the potential panel — a majority whose beliefs may vary from grand jury panel to grand jury panel.
By my count, 12 of the 15 states which have feticide statutes have variously imposed criminal liability for causing the death of an unborn fetus based on whether the fetus is “viable” or “quick.” Such statutes are more likely to pass constitutional muster because they provide an objectively ascertainable point during the maturation of the fetus which will trigger culpability. Counsel for appellant has suggested that in the interest of upholding the constitutionality of the statutes we “read into” them a fetus viability requirement, which, in effect, would generally limit prosecution for fetal “death” after viability, and, specifically, in this case would result in the dismissal of Counts II and IV of the indictment. The majority opinion did not directly discuss this contention, and, I think properly so. Generally, determination of the factual predicate for criminal responsibility is within the province of the legislature, and not in the courts by a strained judicial “construction.”
Recently, in State v. Olson, 435 N.W.2d 530 (Minn.1989), we declined to construe *326the word “death,” as it appears in the “general” homicide statute, as brain death, but instead left the development of the appropriate definition to the legislature. In so doing, we noted that where “ * * * the issue raised is of profound human interest, prudence dictates, we think, that the legislature should first be given an opportunity to consider the legal implications of brain death.” Id. at 535. For reasons similar to those therein expressed, I think the proper forum for defining life’s onset and its cessation in these feticide statutes is the legislature.
In conclusion, I would answer the second certified question in the affirmative.