MAY, J.
In December of 2010, Shuai was in the third trimester of a pregnancy that allegedly was the product of an affair with a married man, Zhiliang Guan. Guan broke off his relationship with Shuai that month, and she became distraught. Around the middle of the month, Shuai researched ways to commit suicide and decided she would ingest rat poison.
On December 21, Shuai bought rat poison. On December 23, when Shuai was thirty-three weeks pregnant, she wrote Guan, saying she felt she and the fetus were a burden on Guan, she had resolved to kill herself, and she was “taking this baby, the one you named Crystal, with [her].” (State‘s Ex. 25 & 26.) Shuai then ingested rat poison. Shuai called Guan and told him she had ingested rat poison and was going to die.
Later that day, an anonymous caller asked police to conduct a welfare check on Shuai. When the officer arrived, Shuai insisted she was fine and asked the officer to leave. She then went to the nearby home of her friend, Bing Mak. Mak noticed Shuai was acting strangely, but Shuai insisted nothing was wrong. Finally, Shuai admitted she had taken rat poison, and Mak took Shuai to the hospital for treatment.
On December 24, Shuai was transferred to Methodist Hospital. After she and the fetus were stabilized at Methodist, the doctors gave Shuai a steroid used to improve post-birth lung functioning of children who are born prematurely. Shuai immediately began having mild contractions, and doctors gave her indomethacin to stop the contractions.
On December 31, Dr. Claire Bernardin, an obstetrician, observed an unusual fetal heart rate and advised Shuai the fetus needed to be delivered immediately via caesarean section. Shuai consented, and the doctor delivered via caesarean section an infant Shuai named A.S. Hospital staff immediately transferred A.S. to the neonatal intensive care unit (NICU).
While in the NICU, doctors found A.S. had a high International Normalized Ratio (INR), which indicated her blood could not clot. An ultrasound revealed A.S. had a bilateral Grade III intraventricular hemorrhage.2 A.S.‘s condition steadily worsened. On January 3, 2011, Shuai consented to removing A.S. from life support, and A.S. died. Dr. Jolene Clouse, the forensic pathologist who performed A.S.‘s autopsy, indicated on the coroner‘s verdict report that A.S. died of ―intracerebral hemorrhage due to maternal Coumadin3 ingestion[.]‖ (Defendant‘s Ex. B.)
Shuai was released from the Methodist Psychiatric Unit on February 4, 2011, and returned to live with Mrs. Mak. On March 14, the State charged Shuai with murder, a felony, [footnote omitted] and Class B felony attempted feticide, [footnote omitted] and Shuai turned herself in on the same day. . . . .
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The murder statute states, in relevant part, “A person who: (1) knowingly or intentionally kills another human being; . . . [or] (4) knowingly or intentionally kills a fetus that has attained viability (as defined in IC 16-18-2-365), commits murder.” Ind. Code § 35-42-1-1. . . . A fetus has attained viability when it has the ability “to live outside the mother‘s womb.” Ind. Code § 16-18-2-365.
The feticide statute states, in relevant part:
A person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a Class B felony. This section does not apply to an abortion performed in compliance with:
(1) IC 16-34; or
(2) IC 35-1-58.5 (before its repeal)
Ind. Code § 35-42-1-6.
Shuai argues the plain language of both the murder and feticide statutes “[Does] Not Apply to Pregnant Women in Relation to the Fetuses They Carry.” (Br. D of Appellant at 15.) The question whether the murder and feticide statutes can be applied to a woman in Shuai’s situation is one of first impression in Indiana. Shuai asserts in order for our murder and feticide statutes to include pregnant women, the language would have to do so explicitly because the relationship between a mother and the fetus she carries is unique and “fundamentally and profoundly different from third-party attacks on pregnant women[.]” (Br. D of Appellant at 16.) . . . .
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We decline to adopt Shuai‘s argument the murder statute is ambiguous as applied to her. The State alleged the existence of facts that could satisfy the elements of murder: Shuai is a “person,” the State alleged she intended to kill A.S. by virtue of Shuai’s mention of the fetus in the suicide note, and the victim was an entity protected under the murder statute, be it a “viable fetus” or “human being,” died. [Footnote omitted.] Nor can we find the feticide statute ambiguous as applied here, as it is undisputed Shuai’s pregnancy was terminated when A.S. was born, and the State seems prepared to argue it was Shuai’s intent to end her pregnancy when she ingested rat poison. [Footnote omitted.]
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The State also argues the record does not support Shuai’s characterization of A.S.’s death as an unintended consequence of a suicide attempt. Rather, the State asserts, Shuai’s note to Guan indicates she had intent to kill A.S. independent of her intent to kill herself. We agree. Shuai’s suicide note, which was addressed to Guan, demonstrates suicide was not her only intended result and, as such we cannot hold she is being improperly prosecuted for her suicide attempt.
Shuai next argues that, at common law, “a pregnant woman was not subjected to criminal prosecution relating to her ‘acts’ alleged to have harmed her fetus.” . . . .
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The only English common law that addresses the death of a fetus is stated by Lord Coke:
If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder[.]
Coke, Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes, page 50 (1680).
As the only original statement of English common law we obtained regarding this question contradicts Shuai’s allegation that women had absolute immunity, Ind. Code § 1-1-2-1 does not require us to adopt her premise a pregnant woman has complete common law immunity from prosecution for actions she commits against her own fetus. We therefore decline to do so.
Because the charging information was not deficient, the plain language of the statute applies to Shuai’s actions, and Shuai has not demonstrated common law immunity for pregnant women who harm their own fetuses, we cannot say the trial court abused its discretion when it denied Shuai’s motion to dismiss.
NAJAM, J., concurs.
RILEY J., concurs in part and dissents in part with separate opinion:
. . . I conclude that when the legislature determines to confer legal personality on a fetus for certain limited purposes, it expresses that intent in specific, explicit, and appropriate terms; the corollary, of course, is that when the legislature speaks generally of a human being or person, it impliedly but plainly excludes a fetus. By arguing that A.S.’s legal status as a viable fetus and as a human being are interchangeable, the State disregards legislative reality and impermissibly attempts to enlarge the murder statute. I conclude that by charging Shuai with the intentional killing of a viable fetus, the State failed to establish the essential element of that crime, i.e., that A.S. was a viable fetus. Rather, because Shuai gave birth to A.S., a human being who lived until January 3, 2011, the murder charge should be dismissed.
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. . . In light of Indiana’s long-standing statutory and case law history, I conclude that it was never the intention of the legislature that the feticide statute should be used to criminalize prenatal conduct of a pregnant woman. Rather, the statute should only be applied to third-party conduct which endangers or harms a non-viable fetus. Moreover, it is axiomatic that courts are obligated to avoid construing a particular statute so as to achieve an absurd or unreasonable result. If the feticide statute is interpreted as advocated by the State and applied to women’s prenatal conduct, it could have an unlimited scope and create an indefinite number of new ‘crimes.’ For example, many over-the counter cold remedies and sleep aids contain warnings that pregnant women should not use them without medical supervision, yet doing so cannot constitute a crime. It is also common knowledge that smoking and alcohol use during pregnancy may cause harm to the fetus. It is illogical to punish such prenatal behavior to the exclusion of other behaviors, if the focus is on resulting harm to the fetus. In short, the State‘s interpretation might lead to a slippery slope whereby the feticide statute could be construed as covering a full range of a pregnant woman‘s behavior. Courts must construe statutes with an eye toward reason and logic and dictated by legislative intent. Here, by condoning the State‘s argument, the majority fails to do so.
Finally, I am mindful that it is not the purpose of the court to make legislation in the guise of judicial interpretation or construction. Whether to impose a legal duty or obligation on a pregnant woman to her unborn child and the extent of that obligation is a matter only for the legislature and is to be made after thorough investigative study and debate of all the implications of its decision.