In United States v. Boie, __ M.J. __, No. ACM 37546 (A.F. Ct. Crim. App. June 29, 2011), AFCCA upheld the constitutionality of Article 119a, the UCMJ’s fetal protection article, and resolved several other interesting issues.
AFCCA first held that a constitutional challenge to Article 119a wasn’t waived despite the accused’s guilty plea entered after losing a motion challenging Article 119a. Id., slip op. at 3. In doing so, AFCCA relied on an NMCCA opinion, United States v. Bart, 61 M.J. 578, 581 (N-M. Ct. Crim. App. 2005).
AFCCA next held that Article 119a isn’t void for vagueness:
Contrary to the appellant’s contentions, the conduct prohibited by Article 119a does not bring into play any ambiguities that may attend the debate over the question of when the life of a human being begins or ends. Congress specifically defined the parameters of when criminal liability attaches. The government must prove only that a developing embryo existed at the time the service member committed a predicate offense against the mother that ultimately could or did end the embryo’s existence. In appellant’s court-martial, the trier of fact was not required to determine whether the embryo was viable or whether it was “a person.” Nor were the members called upon to make the philosophical decision of when life begins and death occurs. Such distinctions are irrelevant with respect to determining criminal liability.
Boie, No. ACM 37546, slip op. at 5-6. In a nicely turn phrase, AFCCA adds: “The law merely provides protection to the unborn entity, whether it is called a child, embryo, zygote, or fetus.” Id., slip op. at 7.
AFCCA also held that Roe v. Wade wasn’t relevant to the question of whether Congress could criminalize causing death or injury to a fetus. Id.
AFCCA next dealt with an equal protection challenge to Article 119a, which is the most serious challenge to the statute. Article 119a provides, in relevant part: “(c) Nothing in this section shall be construed to permit the prosecution . . . (3) of any woman with respect to her unborn child.” Boie, who was the father of the miscarried fetus (and who had snuck a drug known to cause abortions into the food of his pregnant girlfriend on four occasions) argued that it was an equal protection violation to insulate the mother from prosecution while allowing the father to be prosecuted. AFCCA held that Article 119a didn’t impact a suspect class. AFCCA separated the class of pregnant women from all others: “The law does not differentiate based on gender. Any man or woman, other than the mother or authorized medical care giver, is subject to prosecution for harm done to an unborn child (assuming they engage in the predicate offenses necessary to trigger Article 119a, UCMJ).” Boie, slip op. at 10. The court continued that Boie “is not similarly situated” with his girlfriend. Id. “[A] pregnant mother has certain constitutional privacy interests that no other person can have with respect to her unborn child. Congress made a deliberate and informed decision to safeguard those rights by exempting the mother from potential prosecution in relation to the termination of the pregnancy. The appellant simply has no similar interests in jeopardy.” Id. The equal protection portion of the opinion is the part most likely to spark interest from CAAF. If the focus of the equal protection analysis is narrowed to the statute’s treatment of the fetus’s parents, then there’s a colorable argument that Boie is being disparately treated due to gender, thereby implicating intermediate level equal protection scrutiny, since female parents can’t be prosecuted while male parents can. Imagine a situation where the fetus’s father wanted the pregnant woman to carry the fetus to term but the pregnant woman deliberately took Misoprostol to induce a miscarriage. Does the law’s inapplicability to that pregnant woman warrant intermediate scrutiny analysis? If so, then the government would have to establish far more than a rational basis for any gender-based distinction: “Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.” United States v. Virginia, 518 U.S. 515, 531 (1996). “The burden of justification is demanding and it rests entirely on the State.” Id. at 533. If intermediate-level scrutiny is applied, would Article 119a survive? CAAF may choose to wrestle with that issue next term.
In Boie, AFCCA then side-stepped an Eighth Amendment challenge to the maximum punishment for violating Article 119a, pointing out that the military judge determined that in his case, the maximum confinement was only 20 years. (Boie’s approved sentence was a DD, confinement for 5 years, total forfeitures, and reduction to E-1.)
AFCCA then rejected an Establishment Clause challenge to Article 119a. The argument was basically that Article 119a codifies a Christian view of when life begins. But AFCCA found that the statute had a clear secular purpose — to “protect the potentiality of human life and the rights of the mother and to punish the transgressor.” Boie, slip op. at 11. And “the mere consistency between a statute and religious tenets does not render a statute unconstitutional.” Id.
The final issue in the case concerned a mistake in the announcement of findings. The military judge noted Boie’s plea by exceptions and substitutions and stated, “Of the substituted words, Not Guilty.” The error was noted only after trial. The military judge held a proceeding in revision and determined that he could correct the error, notwithstanding R.C.M. 1102(b)(1)’s prohibition against reconsideration of a finding of not guilty to any specification or ruling amounting to a finding of not guilty. AFCCA agreed, reasoning that to prevent a military judge from correcting an obvious error would elevate form over substance. AFCCA quoted a 1954 CMA case that supported the correction of an erroneously stated finding. Boie, slip op. at 14 (quoting United States v. Downs, 15 C.M.R. 8, 11 (C.M.A. 1954)). As an alternative, AFCCA concluded that even if correcting the error were itself erroneous, the error would be harmless. This alternative ruling wasn’t as satisfying as the primary ruling. Military case law has long held that an accused is entitled to accurate records of his military justice proceeding. See, e.g., United States v. Caudill, 65 M.J. 756, 761 n.9 (N-M. Ct. Crim. App. 2007). If an accused was actually acquitted of a portion of a specification, it would certainly be held to be erroneous if the court-martial promulgating order were to reflect a conviction to that portion of the specification. The servicemember in that instance would be harmed by having a military record reflect a finding of guilty to a portion of the specification that actually resulted in an acquittal. Similarly, even if the sentence wouldn’t have been affected by the modification of the findings at the post-trial proceeding in revision, if that modification was erroneous, it would harm the accused by resulting in the court-martial promulgating order reflecting a conviction to a portion of the specification that should have reflected a not guilty finding.