dissenting:
¶ 52 I respectfully dissent. Defendant is charged with shooting and killing his pregnant ex-wife and her fetus. While these acts constitute two homicides within the meaning of section 76-5-201, a charge of aggravated murder based on the killing of Ms. MacGuire and her fetus cannot be sustained as the killing of two “persons” under Utah Code section 76 — 5—202(l)(b).
I. Section 76-3-201
¶ 53 Pursuant to the language of section 76-5-201(1), “eaus[ing] the death of another *1181human being, including an unborn child” is homicide, except that if-the death is caused by abortion it is not homicide. Utah Code Ann. § 76-5-201(1) (1999). Defendant contends that this provision is unconstitutionally vague. I agree with the majority that the statutory language is not so unclear as to violate minimal constitutional requirements.
¶54 The term “unborn child” is not defined in the statute and is not entirely clear in ordinary or legal usage. In our society, the moral status of the fetus is highly controversial. For many, a fetus, especially in the early stages of pregnancy, exists in a liminal state, somewhere between fully human and not human. Our fellow citizens disagree radically over when in this period of developing life an egg and sperm combined have matured enough to warrant moral or legal consideration as a person or a full human being.
¶ 55 Some Americans, attempting to make sense of the difficult issues surrounding family responsibility and abortion, reserve the word “child” for infants who have been born, or begin to refer to a fetus as a “child” only at the point at which they believe there is a reasonable likelihood that it will be born. Thus, for example, one commentator contends that in the view of many Americans, “child” refers to a member of the family. See Daniel JH Greenwood, Beyond Dwor-kin’s Dominions: Investments, Memberships, the Tree of Life, and the Abortion Question, 72 Tex. L.Rev. 471 (1994) (disputing Professor Dworkin’s view that no one believes that a fetus is a moral “person” and arguing instead that a wide variety of religious and secular observers see the fetus as developing into a “person” and becoming entitled to more rights and consideration over time, while others see varying moments, ranging from the sex act to birth, when those rights attach). Families have a period of time after pregnancy has begun in which they still may legally reject the responsibility of raising a child — something that is morally impermissible once they accept the developing fetus as a child. In that usage, an “unborn child” would refer only to a wanted pregnancy sufficiently far developed to be likely to come to term. To apply Utah’s statute from that perspective, a prosecutor would be required to prove that the mother had, in fact, decided not to abort and that the pregnancy was reasonably likely to come to term. Hence the moral ambiguity of the term “unborn child” in the statute.
¶ 56 A statute that used the word “fetus” rather than “unborn child” would be clearer and more respectful of the diversity of opinion in our society. Nonetheless, the legislature is entitled to use polemical and political language, even on highly controversial issues, so long as the language gives clear notice of what is intended to be criminalized. The word “child” clearly includes the unborn in such ancient phrases as “quick with child”; indeed, the Oxford English Dictionary reports that it appears to be descended from a word specifically referring to the womb rather than an infant. The modern usage of “unborn child,” I believe, reflects less an attempt (like Professor Greenwood’s) to make sense of how so many Americans can support legal abortion while also believing that mothers have a duty to care for their children even pre-natally, than the desire of those who oppose abortion to find new linguistic opportunities to emphasize respect for the fetus. In the context of this case, I agree with the majority that it is sufficiently clear that the legislature meant to classify the killing of every fetus as a homicide and that ordinary citizens will understand that intent. Section 76-5-201 therefore passes “void for vagueness” muster.
II. Section 76-5-202(1) (b)
¶ 57 Section 76-5-202(l)(b), however, is a different matter. It provides that homicide is aggravated murder if “the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed.” Utah Code Ann. § 76-5-202(l)(b) (1999) (emphasis added). As discussed below, a fetus is not a full legal “person” and cannot be so constituted under the law of the United States or Utah. The plain meaning of section 76-5-202(l)(b) is that killing a mother and her fetus cannot constitute aggravated homicide.
¶ 58 Preliminarily, it is clear that the legislature is entitled to protect to the fullest *1182extent pregnant mothers and their expectations of bringing their pregnancies to term. Even supporters of legal abortion agree that an assault which destroys a developing fetus is a particularly heinous crime. See, e.g., Beyond Dworldn’s Dominions, supra, at 489. A violent attack by a third person on a mother that also kills her fetus injures more than the mother alone. One of the most fundamental of life’s experiences has been cut short; parents’ aspirations to bring forth a new generation have been shattered; a family that could have been will not be; a life that could have developed into an independent individual has been extinguished. We need not enter into any debate regarding the status of the fetus itself to see that a state may freely increase penalties for a homicide or an assault that also kills a fetus: respect for the mother alone would be sufficient. The power of the legislature to classify a homicide that also unlawfully destroys a fetus as aggravated murder, then, is not at issue here. The problem is, rather, that the legislature has not clearly done so. The aggravated homicide statute applies when two “persons” are killed, and a fetus is not a person under our law.
¶ 59 “Person” is a legal category with important consequences. Most important, persons are entitled to rights under the Fourteenth Amendment of the United States Constitution. It would be an obvious denial of equal protection to allow doctors, or anyone else, to kill one “person” in order to save another, and clearly a denial of due process to permit this without any legal process at all. Thus, declaring a fetus to be a “person” entitled to equal protection would require not only overturning Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), but also making abortion, as a matter of constitutional law, illegal in all circumstances, even to save the life of the mother.1 Utah law reflects this principle. The legislature has stated that “a woman’s liberty interest, in limited circumstances, may outweigh the unborn child’s right to protection,” and has specified when abortion is warranted. Utah Code Ann. § 76-7-301.1(4) (1999). A fortio-ri, if a fetus were deemed a legal “person,” its life could not be taken intentionally in the process of honoring a pregnant woman’s “liberty interest.” Roe, 410 U.S. at 157 n. 54, 93 S.Ct. 705 n. 54.
¶ 60 For these reasons, as Justice Stevens has stated,
[N]o member of the Court has ever questioned this fundamental proposition [i.e., that a fetus is not a “person”]. Thus as a matter of federal constitutional law, a developing organism that is not yet a “person” does not have what is sometimes described as a “right to life.” This has been and ... remains a fundamental premise of our constitutional law ....
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 913, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Stevens, J., concurring in part and dissenting in part).
¶ 61 To declare a fetus a “person” is beyond the power of the state of Utah, whether acting through either its legislature or its courts. A state cannot overrule the United States Supreme Court by changing who counts as a “person” for constitutional purposes. Justice Stevens, quoting Professor Dworkin, put it this way:
The suggestion that states are free to declare a fetus a person ... assumes that a state can curtail some [existing] persons’ constitutional rights by adding new persons to the constitutional population. The constitutional rights of one citizen are of course very much affected by who or what else has constitutional rights, because the rights of others may compete or conflict with his. So any power to increase the constitutional population by unilateral decision would be, in effect, a power to decrease the rights the national Constitution grants to others.
Id. at 913 n. 2, 112 S.Ct. 2791 n. 2 (quoting Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L.Rev. 381, 400-01 (1992)).
*1183¶ 62 Finally, even if the Utah Legislature could define “person” to include a fetus, which I believe it cannot, the legislature does not seem to have done so. At any rate, no statutory language defining “person,” as opposed to “unborn child” or “human being” has been cited to us.
¶ 63 If a fetus is not a “person” in the language of the law, it follows that the defendant in this case, heinous as his crime is, has not committed aggravated murder within the meaning of Utah Code section 76-5-202(l)(b). That provision applies only when “two or more persons were killed.” In the ease at hand, two lives were extinguished: that of Ms. MaeGuire and that of the fetus she was carrying. Under Utah law, these two killings may each be prosecuted as separate homicides, but only one “person” was killed. Defendant cannot be prosecuted for killing two or more “persons,” when only one of his victims was a “person.” I do not believe defendant can be tried for aggravated murder under section 76-5-202(l)(b).
. The due process and equal protection clauses state, in relevant part, "nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, cl. 1 (emphasis added).