STATE OF MARYLAND
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IN THE
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v.
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CIRCUIT COURT FOR
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STEVEN CHASE BRIGHAM,
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CECIL COUNTY
Defendant
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Case No. 07-K-11-002083
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DEFENDANT’S RESPONSE TO STATE’S RESPONSE TO DEFENDANT’S
MOTION TO DISMISS
Dr. Steven Chase Brigham, by and through his undersigned counsel, and in
response to the State’s Response to Defendant’s Motion to Dismiss Indictment states:
I. Statement of Facts
Given that the trial in this case has not taken place and no evidence has been
presented and the state has failed to sufficiently provide a Bill of Particulars as timely
requested by Dr. Brigham, it seems far too premature for the State to be filing a
“Statement of Facts.” Dr. Brigham will therefore decline to address all of the State's
alleged facts.
However, Dr. Brigham will state that for each fetus named in the
indictment, an ultrasound was performed and the attending physician exercised his best
medical judgment based upon the particular facts of the case before the physician as
required by law.
II. Argument
A. The State of Maryland Lacks Jurisdiction to Prosecute Dr. Brigham
The state flippantly responds under this section that it “is more than willing to
listen to [Dr. Brigham’s] new versions of fetal demise and review any new documents
[Dr. Brigham] wishes to provide supporting same.” But, of course, the burden to prove
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where the fetal demise actually occurred is on the State and not on Dr. Brigham.
Moreover, the state’s failure to provide adequate discovery1 and to properly respond to
Dr. Brigham’s request for a Bill of Particulars does leave one to guess as to precisely
what is the basis for the State's prosecution of this case.
B. Dr. Brigham Is Immune From Prosecution Pursuant to §2-103(e)
The state does not contest Dr. Brigham’s assertion that §2-103(e) provides
immunity to those physicians administering lawful medical care. (State’s Response at 8).
Instead, the State relies upon their own assertion in the indictment that the fetuses were
viable and therefore, they appear to allege, the medical care was not lawful.
The
definition of "viability" under CR §2-103 and HG §20-209 leaves the determination of
viability solely to the attending physician and not to the State or the Medical Examiner.
Whether the State or the medical examiner believes that, in their opinion, there was a
"reasonable likelihood" of the fetus’s survival is simply irrelevant.
The Medical
Examiner has no knowledge of the "particular facts of the case" used by the attending
physician to determine whether or not there is a "reasonable likelihood" of the fetus’s
survival outside of the womb. If there is a disagreement between the Medical Examiner
and the attending physician over whether or not the fetus was viable, the clear and
Dr. Brigham has yet to receive any expert reports relied upon by the state to bring these
charges. Additionally, it remains a mystery as to where the fetuses that are the subject of these
charges actually are. Dr. Brigham has had no opportunity therefore to have his experts review
this critical evidence. Nor has the State, as demanded in the Bill of Particulars, stated with
specificity the facts the State relies upon to show that in reference to viability Dr. Brigham did
not use his best medical judgment based upon the particular facts of each case.
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unambiguous language of HG 20-209 (a) provides that the "judgment of the attending
physician", by definition determines viability.
The state takes issue, however, with Dr. Brigham’s recounting of the legislative
history of §2-103. Specifically, the state “categorically denies [Dr. Brigham’s] statement
that ‘[n]umerous documents in the bill file for House Bill 398 make it absolutely clear
that it was never intended to penalize medical professionals who perform abortions.’”
(State’s Response at 9).
The state’s first complaint about this statement is that “[i]f this
were true, [Dr. Brigham] would have submitted said documents with his motion.” (Id.
ftnt. 7). Dr. Brigham did, in fact, attach “said documents” to his motion. The state
simply chooses to ignore them as reflected in their responses as follows: “the state will
decline to address most of [Dr. Brigham’s] arguments regarding legislative history in the
underlying motion;” “[t]he state declines to address the February 17, 2005 and April 6,
2005 letters cited by [Dr. Brigham] from the Office of the Attorney General;” 2 and “the
state declines to address all the bills cited by [Dr. Brigham] that were introduced
The April 6, 2005 letter to Delegate Leo E. Green was in direct response to the delegate’s
inquiry “whether this provision would provide immunity for the physician for injuries sustained
by a woman as a result of malpractice in the performance of an abortion.” The response of the
Office of the Attorney General was succinct and clear: “It is my view that the provision shelters
physicians from criminal liability under the bill for lawful medical care, including lawful
abortions, that result in the death of a fetus.” And, further, noting the provision of the bill
which is now subsection (e) of 2-103, the Assistant Attorney General bluntly states “[i]t is my
view that the main function of this provision is to protect the physician from criminal liability
under the new section. Without such a provision, the plain language of the bill would allow
prosecution of a physician who performs an abortion of a viable fetus for murder or
manslaughter based on a lawful abortion, since the physician intends to cause the death of athe
viable fetus.” (emphasis added). As for the February 17, 2005 letter to Delegate Charles Boutin,
the Assistant Attorney General flatly states, “[i]t expressly does not subject a physician to
prosecution for a decision to perform an abortion under that section.” (emphasis added).
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subsequent to the passing of House Bill 398, as they do not address the legislative intent
of MD CR §2-103.”3 (State’s Response at 8, 9 and 10). For the state’s edification, Dr.
Brigham attaches to this response further documents clearly reflecting the legislative
intention that §2-103 was never meant to apply to physicians performing abortions.
These include: a letter dated February 17, 2005 from Anthony McCann, Secretary of the
Department of Health and Mental Hygiene to Chairman Joseph Vallario discussing
House Bill 398 and noting “[o]ther similar State and federal bills have exempted the
pregnant woman as well as healthcare providers. The Department believes that without
similar, specific clarifications HB 398 might result in serious criminal penalties being
imposed upon mothers or healthcare providers for whom such harsh penalties may not be
appropriate;” the Floor Amendments for House Bill 398 dated March 25, 2005,
addressing the concerns expressed by Secretary McCann, and reflecting as “amendment
no. 2” that it “provides … that the bill does not subject a physician or other licensed
medical professional to liability for fetal death that occurs in the course of administering
lawful medical care; that the bill does not apply to acts of the pregnant woman with
regard to her own fetus…” and summarizes the bill by noting that It “may not be
construed to confer personhood or any rights upon the fetus;” and finally the Floor Report
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Of course, the state is flatly wrong in its assertion that bills passed after the enactment of §2103 have no bearing in determining the legislative intent in enacting the statute. Kaczorowski v.
Mayor and City Council of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (1987) (“When we
pursue the context of statutory language, we are not limited to the words of the statute as they are
printed in the Annotated Code. We may and often must consider other “external manifestations”
or “persuasive evidence,” including a bill's title and function paragraphs, amendments that
occurred as it passed through the legislature, its relationship to earlier and subsequent legislation,
and other material that fairly bears on the fundamental issue of legislative purpose or goal, which
becomes the context within which we read the particular language before us in a given case.”).
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for House Bill 398 providing a “favorable” recommendation by the Senate Judicial
Proceedings Committee and noting that “[t]he bill does not apply to a woman’s right to
terminate a pregnancy, does not subject a physician or other licensed medical
professional to liability for fetal death that occurs in the course of administering lawful
medical care…and may not be construed to confer personhood or any rights upon the
fetus.” (Exhibit 1).
Second, the state takes issue with Dr. Brigham’s claim that the impetus for what is
now §2-103 was the federal “Unborn Victims of Violence Act of 2004” which sought to
“[e]stablish criminal penalties for inflicting bodily injury or death on a human fetus
during the commission of a federal crime of violence against a pregnant woman.” As Dr.
Brigham argued, §2-103 is directed at “punishing those who engage in acts of violence
against a pregnant woman with the intent to cause the death of her viable fetus.” The
State asserts that the Maryland law was not limited to fetal homicide resulting from
crimes against pregnant women. Citing House Bill 520 introduced by Delegate Charles
Boutin, the State asserts that “House Bill 520 was not intended to be limited to fetal death
that occurred as a result of certain ‘felonies against pregnant woman’ [sic].” (State’s
Response at 8). Dr. Brigham’s response to this argument, with all due respect, is so
what? House Bill 520, as noted by the State in a footnote, never passed. But, in any
event, the State is simply wrong. Research of the legislative history behind House Bill
520 also clearly demonstrates that it was meant to track the purpose of the federal law
which was to provide for separate punishment for the death of a viable fetus resulting
from a crime against a pregnant woman.
For example, the “Legislative Wrap-Up”
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prepared by the Department of Legislative Services, Issue 04-14 of April 2004 states that
House Bill 520 “would have allowed a charge of a crime against a fetus, if certain crimes
against a pregnant woman resulted in the harm or death of her fetus.” (emphasis
added).
Furthermore, the “90 Day Report” prepared by the Department of Legislative
Services regarding the 2004 Session notes the following:
Unborn Victims of Crime
On April 1, 2004, President Bush signed legislation that makes
it a separate offense to harm an “unborn child” while
committing a violent federal crime against a pregnant woman.
Under the Unborn Victims of Violence Act, violence against a
pregnant woman is considered two separate crimes, regardless
of whether an assailant is aware of the pregnancy. It covers
embryos and fetuses from conception. Several unsuccessful
bills were introduced on this subject during the session. The
bills that drew the most attention were Senate Bill 349/House
Bill 802 (both failed). These bills would have provided that the
laws relating to murder, attempted murder, voluntary or
involuntary manslaughter, and other specified offenses apply to
circumstances where the victim is “an unborn child.” These
provisions would not have applied to acts committed by the
mother of the unborn child, acts committed during a legal
abortion, or acts committed in accordance with specified
medical practices. House Bill 520 (failed) would have allowed
for the prosecution of murder, manslaughter, or unlawful
homicide for an act or omission that occurred while the victim
was a viable fetus. House Bill 1267 (failed) would have
increased the maximum imprisonment penalties for a person
convicted of second degree murder, manslaughter, and first and
second degree assault when the person knew or had reason to
know that the victim was pregnant.
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(emphasis added). There is simply no support anywhere for the State’s argument that the
current law was meant to criminalize abortions involving viable fetuses performed by a
physician exercising his or her best medical judgment.
D. Application of Md. Ann. Code, Criminal Law Article §2-103 to Abortion
Procedures as Performed by Dr. Brigham Unconstitutionally Burdens a Woman’s
Right to an Abortion and Unconstitutionally Interferes with a Doctor’s Good Faith
Judgment as to Viability and the Necessity for the Procedure.
Dr. Brigham has asserted two bases for why application of the fetal homicide law
to the procedures he performed is unconstitutional as applied by the State. First, the
State’s interpretation of §2-103 allows it to override a doctor’s determination that a fetus
is not viable. As such, it chills the exercise of a woman’s constitutional right to an
abortion of even nonviable fetuses which is clearly unconstitutional under Roe v. Wade,
410 U.S. 113 (1973). The State responds that “what is of critical importance regarding a
doctor’s viability determination is not whether other doctors agree with his viability
decision, but rather whether he made said viability determination in good faith and in his
best medical judgment in accordance with accepted standards of medical practice.”
(State’s Response at 13; emphasis in original).4 The State continues, “if a doctor, in good
faith and in his best medical judgment in accordance with accepted standards of medical
practice, determines that a fetus [is] not viable, said doctor is not subject to a criminal
penalty for a decision to perform an abortion of said fetus.” (State’s Response at 13).
Contrary to the statute, here the State completely conflates the decision to perform an
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This is clearly a concession by the state that what other doctors, medical examiners, or socalled ‘experts’ believe is the point of viability regarding the fetuses at issue in Dr. Brigham’s
case is irrelevant. To this extent, Dr. Brigham wholeheartedly agrees.
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abortion with the determination of viability. §20-209(a) alone governs the viability
determination and defines it as “that stage when, in the best medical judgment of the
attending physician based on the particular facts of the case before the physician, there
is a reasonable likelihood of the fetus’s sustained survival outside the womb.” (emphasis
added). This section is in no way limited by a requirement that the determination of
viability be made “in … accordance with accepted standards of medical practice.” That
is language taken from subsection (d) which governs the physician’s decision whether or
not to perform an abortion.
Thus, the plain language of the statute leaves the
determination of viability solely to the determination of the attending physician based on
the peculiar facts before him or her. It is not subject to “accepted standards of medical
practice;” and for good reason. As noted in his original motion, “medical judgment”
must “embody the judicial need to tolerate responsible differences of medical opinion…”
Stenberg v. Carhart, 530 U.S. 914, 937 (2000).5 That other doctors or experts may
believe that a fetus is viable or has a reasonable likelihood of sustained survival outside
the womb is irrelevant precisely because there can never be a universally and well
defined standard of “reasonable likelihood.” Every determination is different because
every patient is different. Were it otherwise, then the statute becomes void for vagueness
and is constitutionally infirm for that reason.6 No attending physician would know if his
It bears noting that the state, in its response, has apparently once again chosen to “decline to
address” an argument made by Dr. Brigham. Dr. Brigham cites and relies upon the Stenberg
case in making his constitutional arguments yet, the state ignores it completely.
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It would also fail under a due process analysis because the physician could never be on notice
of when his determination will result in criminal charges.
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viability determination will subject him to criminal penalties under such a vague
standard.
CONCLUSION
For the reasons presented, Dr. Brigham respectfully requests that the charges
against him be dismissed.
Respectfully Submitted
Nancy S. Forster
Law Office of Nancy S. Forster
925 Metfield Road
Towson, Maryland 21286
443-790-1741
forster@nancyforsterlaw.com
C. Thomas Brown
Attorney at Law
205 East Main Street
Elkton, Maryland 21921
410-398-3850
Attorneys for Steven Brigham
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ___ day of February, 2012, a copy of the
foregoing Motion to Dismiss Indictment and Memorandum in Support of Motion to
Dismiss Indictment was mailed to: Ellis Rollins III, State’s Attorney for Cecil County,
Courthouse, 129 E. Main Street, Elkton, Maryland 21921.
_____________________
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Nancy S. Forster
STATE OF MARYLAND
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IN THE
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v.
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CIRCUIT COURT FOR
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STEVEN CHASE BRIGHAM,
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CECIL COUNTY
Defendant
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Case No. 07-K-11-002-083
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ORDER
Upon consideration of the foregoing Motion to Dismiss Indictment and
Memorandum of Law in Support of Motion to Dismiss Indictment, it is on this ___ day
of _________, 2012, hereby
ORDERED that the eleven count Indictment against Dr. Steven Chase Brigham
be dismissed.
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Judge
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