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Tim Bilecki

Article 119a – Death or Injury of an Unborn Child

In United States v. Boie, M.J. (A.F. Ct. Crim. App. 2011), the accused impregnated his girlfriend and they subsequently married. The accused was very unhappy about the pregnancy and tried to convince his now-wife to obtain an abortion. She refused. The accused then secretly placed Misoprostol (an abortion-inducing drug) into his wife’s food and drink on four different occasions; she consumed the contaminated food on at least one occasion. The wife subsequently miscarried. She confronted her husband on the phone about the miscarriage because she heard through a friend that the accused caused the abortion by placing drugs into her food. The wife secretly taped the conversation during which the accused admitted to his actions. The wife then reported the accused to law enforcement. The accused was charged with the intentional killing of an unborn child under Article 119a, as well as several other offenses. He pled guilty to attempted killing of an unborn Article 119a at a general court-martial comprised of officer and enlisted members; he was acquitted of the greater offense of intentional killing of an unborn child.

The issue was whether Article 119a is constitutional. The AFCCA affirmed and held that Article 119a is constitutional. AFCCA analyzes the constitutionality of Article 119a on a number of bases. First, AFCCA finds that Article 119a is not void for vagueness under the Due Process Clause either facially or as applied. The coat concludes that the language of Article 119a is sufficiently precise to place the accused on fair notice of the proscribed criminal conduct. Second, the court holds that Article 119a does not violate the Equal Protection Clause because the accused does not belong to a suspect class nor does the law impact a fundamental interest of the accused. The court also finds that the law bears a rational relationship to a valid legislative purpose. Third, the court holds that Article 119a does not violate the Establishment Clause because the law has a secular purpose, it was not enacted to promote a solely religious purpose, and it does not improperly
entangle the government in religious affairs.

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