(dissenting).
The trial court, in the order certifying the two issues before us for appellate review, noted that “the Minnesota crimes against unborn children statutes represent the most sweeping legislative attempt in the country to criminalize actions of third parties which harm fetuses and embryos.” We are asked to determine whether two of those statutes pass constitutional muster. Because I conclude that they do not, I respectfully dissent. I concur with the dissenting opinion of Justice Kelley in its conclusion that Minn.Stat. §§ 209.2661(1) (Murder of Unborn Child in First Degree) and 209.2662(1) (1988) (Murder of Unborn Child in Second Degree), as drafted, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution under the “void for vagueness” doctrine. I would also answer the first certified question in the affirmative.
The first question certified asks:
Do Minn.Stat. §§ 609.2661(1) and 609.-2662(1) (1988) violate the fourteenth amendment of the United States Constitution, as interpreted by the United States Supreme Court in Roe v. Wade, by failing to distinguish between viable fetuses and nonviable fetuses and embryos, and by treating fetuses and embryos as persons?
The majority opinion, in answering this question, has focused solely on defendant’s equal protection claim and finds no violation of the Fourteenth Amendment on that ground. Assuming the court’s analysis has properly addressed defendant’s equal protection concerns, the question as certified to us also raises a question of substantive due process. The constitutional requirement of due process not only concerns matters of criminal procedure, but also limits “the manner and extent to which conduct may be defined as criminal in the substantive criminal law.” W. LaFave & A. Scott, Criminal Law § 20 at 136 (1972). By failing to distinguish between viable fetuses and nonviable fetuses and embryos, sections 609.2661(1) and 609.2662(1) have run afoul of the defendant’s right to substantive due process.
Defendant is charged with murder of an unborn child in the first degree carrying a sentence of life imprisonment, Minn.Stat. § 609.2661(1), and murder of an unborn child in the second degree, carrying a sentence of imprisonment for not more than 40 years, Minn.Stat. § 609.2662(1).1 These statutes track, respectively, the language and sentences of murder in the first degree, Minn.Stat. § 609.185(1) (1988), and murder in the second degree, Minn.Stat. § 609.19(1) (1988), with one exception. In both sections 609.2661(1) and 609.2662(1), the actor, to be guilty of murder and to be sentenced for murder, must cause the death, not of a human being, but of an unborn child. An unborn child is the unborn offspring of a human being conceived, but not yet born. Minn.Stat. § 609.266(a) (1988). Thus an unborn child can be a fertilized egg, an embryo, a nonviable fetus or a viable fetus.
The law with regard to murder is clear. Murder is the “unlawful killing of a human being by another * * ⅜.” Black’s Law Dictionary 918 (5th ed. 1979). The term murder implies a felonious homicide, Pilcher v. State, 16 Ala.App. 237, 238, 77 So. 75, 76 (1917), which is the wrongful killing of a human being. 4 W. Blackstone, Comment*327aries * 188-89. A nonviable fetus is not a human being, nor is an embryo a human being, nor is a fertilized egg a human being. None has attained the capability of independent human life. People v. Smith, 59 Cal.App.3d 751, 756, 129 Cal.Rptr. 498, 502 (1976). Each has the potentiality of human life. In this potential human life the state has an important and legitimate interest — an interest which becomes compelling at viability. Roe v. Wade, 410 U.S. 113, 162-163, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973). Only at viability does the fetus have the “capability of meaningful life outside the mother’s womb.” Id. 410 U.S. at 163, 93 S.Ct. at 732. As one constitutional scholar has put it, “viability constitutes nothing less than the operative fact that makes a fetus like other human beings, and that therefore requires that a fetus be accorded state protection similar to that accorded the rest of humanity.” L. Tribe, American Constitutional Law § 15-10 at 1357 (1988).
Though the statute under which the court in People v. Smith concluded that only a viable fetus could become an object of murder differs from Minnesota’s fetal homicide statutes, the court’s analysis is relevant on this point:
The underlying rationale of Wade, therefore, is that until viability is reached, human life in the legal sense has not come into existence. Implicit in Wade is the conclusion that as a matter of constitutional law the destruction of a non-viable fetus is not a taking of human life. It follows that such destruction cannot constitute murder or other form of homicide, whether committed by a mother, a father (as here), or a third person.
People v. Smith, 59 Cal.App.3d at 757, 129 Cal.Rptr. at 502. Our decisions have recognized this principle. In a civil case we have allowed the personal representative of an “unborn child” to maintain a wrongful death action. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). We concluded in Verkennes that a cause of action would only arise “where independent existence is possible * * Id. at 370-71, 38 N.W.2d at 841.
The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving “any person of life, liberty, or property, without due process of law.” Life, liberty and property are fundamental rights. “When a fundamental right is involved, due process requires a state to justify any action affecting that right by demonstrating a compelling state interest.” Garner v. Memphis Police Dept., 710 F.2d 240, 247 (6th Cir.1983), affd on other grounds sub nom. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (invalidating on due process grounds a statute authorizing the police to use deadly force against any felon fleeing arrest). “Laws which infringe on fundamental rights must be ‘narrowly drawn to express only the legitimate state interests at stake.’" Id. 710 F.2d at 247 (quoting Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)).
The fundamental right involved in the case before us as far as defendant is concerned is his liberty. He is charged with two counts of murder of a woman who was 26 to 28 days pregnant at the time of her death. For the death of the 28-day embryo he is further charged with murder of an unborn child in the first degree and murder of an unborn child in the second degree for which he may be sentenced to life imprisonment and 40 years. The state does not have a compelling interest in this potential human life until the fetus becomes viable. Roe v. Wade, 410 U.S. at 162-163, 93 S.Ct. at 731. Sections 609.-2661(1) and 609.2662(1) are not narrowly drawn to distinguish between viable fetuses, nonviable fetuses and embryos, so as to express “only the legitimate state interests at stake.” Unless the words “unborn child” in sections 609.2661(1) and 609.-2662(1) are construed to read “viable unborn child,” the reach of these statutes is unconstitutionally broad. The first certified question must be answered in the affirmative.
. Sections 609.2661(1) and 609.2662(1) are criminal statutes. Criminal statutes must be strictly construed in favor of the defendant. LaFave & Scott, 1 Substantive Criminal Law § 2.2(d) at 108 (1986).