Part of conviction of Wichitan reversed

By Lori Linenberger

The Wichita Eagle

October 28, 1989, pp. 1A and 6A

The Kansas Supreme Court ruled Friday that a fetus is not a human being under the state's homicide laws, prompting a Kansas anti-abortion group to vow to try to change the law during the coming legislative session.

Two legislators who also are lawyers said that changing the law to give a fetus protection under criminal statutes could have broad implications for abortion. Such protection would mean establishing a point at which a fetus is considered a human being, they said.

"I have real serious problems with that," said Rep. Kathleen Sebelius, D-Topeka and member of the House Judiciary Committee. "I think for me and a lot of other people there are certain inalienable rights established for a person, but those are not applied in utero."

The state's highest court made the ruling in the appeal of Willard Green, a Wichita man convicted last year of two counts of first-degree murder in the death of Zeola Wilson and her 8-month-old fetus. The court reversed the conviction in the case of the fetus but upheld the conviction for the mother.

In its unanimous ruling, the court repeatedly said that killing a fetus was not considered a crime by the Legislature, but that making it a crime could fall within the lawmakers' power.

"Imposing criminal liability for the killing of a fetus is a legislative function," said the court's opinion, written by Justice Harold Herd. "We are prohibited from construing 'viable fetus' to be within the term human being since such action exceeds our judicial power and denies the defendant due process."

Anti-abortion activists denounced the ruling.

"This would not be the first time that the court has been wrong," said Pat Goodson, lobbyist for Right to Life of Kansas. "They have taken us a step down that slippery slope of devaluation of human life.

"First, the unborn child is not a person if the mother does not want it. Now, the court is saying that it is not a person regardless, even if it is viable, even if the mother loves it. Anyone can come along and murder that child. We definitely will seek legislative redress in the coming session."

Sen. Wint Winter Jr., chairman of the Senate Judiciary Committee, said the issue was a proper one for the Legislature to address, but he doubted it would be a priority in the session that begins in January because of other direct abortion questions expected to arise.

Another anti-abortion group, Kansans for Life, has said it will ask the Legislature to require doctors to determine whether a feus is viable - could survive outside the womb - before an abortion is performed. With some exceptions, a viable fetus could not be aborted under the group's proposal.

Other abortion issues, such as requiring parental consent for a minor to have an abortion, are expected to come before the Legislature as a result of the U.S. Supreme Court's ruling last summer that upheld several abortion restrictions enacted in Missouri.

Rep. John Solbach, D-Lawrence and a member of the House Judiciary Committee, said that little was to be gained by changing criminal laws to protect a fetus. The assailant of a pregnant woman can be properly charged and punished for the crime against the woman, he said.

"You've got to do serious damage to the mother that would rise to the level of at least an aggravated battery in order to hurt a fetus," he said.

After the shooting of Zeola Wilson, in 1987, doctors were unable to save Wilson's life but delivered her baby by Caesarean section.

"Although there were no signs of life at birth, a neonatal team immediately attempted to resuscitate the fetus," Herd wrote in the court's opinion. "Ten minutes later a faint heartbeat was heard, but in the process of transferring the fetus to ICU (intensive care unit), the heartbeat was lost."

The baby was pronounced dead about 30 minutes later.

The pediatrician who treated the baby described the birth as a stillbirth, Herd noted, even though he briefly considered the baby alive when the heartbeat was discovered.

Janice Fitch, Sedgwick County assistant district attorney, said the court's decision puzzled her. Fitch said that Sedgwick County Judge Keith Sanborn had instructed the jury to convict Green in the baby's death only if it determined that the child was born alive and then died of injuries caused by the shooting.

But the Supreme Court said that life had never been established in the fetus.

"The detection of a faint heartbeat for a brief period is not substantial competent evidence to support the jury determination that a live birth occurred when … there was expert testimony the fetus was stillborn and brain-dead at the time of delivery," the court ruled.

"The judge didn't instruct on the viable fetus issue as a basis of the homicide," Fitch said. "I'm real unclear as to what they (court) did rule on."

Fitch had not seen a copy of the court's decision Friday.