[267 NJSuper Page 103] As a result of intercourse with defendant Alexander V. Loce, Ms. Z. became pregnant. She informed Mr. Loce that she had arranged for an abortion to be performed in a certain physician's office in Morristown on September 8, 1990. On September 8, Ms.
Z. would have been pregnant for about eight weeks. There was no problem with the health either of Ms. Z or the fetus.
Mr. Loce urged Ms. Z not to have the abortion, but she persisted in her announced intention to have one. On September 7, Mr. Loce applied to the Chancery Division of the Superior Court for an order prohibiting the abortion. This request was promptly rejected by the Chancery Division. On September 7, Mr. Loce appealed on an emergency basis from the Chancery Division's denial of relief to the Appellate Division of the Superior Court and then to the New Jersey Supreme Court. Both appeals were rejected. On September 8, Mr. Loce, accompanied by 14 anti-abortion activists who are the other defendants in this matter, forced his way into the physician's office where the abortion was to be performed. All 15 defendants handcuffed themselves together and physically blocked movement within the office with the intent to forcibly prevent the physician from performing the abortion. Defendants persisted in their violent obstruction of the office despite legal notice to leave. They were arrested and removed from the office by the police. The abortion took place on September 8, 1990.
All defendants were convicted of the petty disorderly persons offense of defiant trespass under N.J.S.A. 2C:18-3(b). Each of them was fined $250 and required to pay court costs and a Violent Crimes Compensation Board penalty. All defendants have appealed to the Law Division of the Superior Court and their appeals are now before me for decision. The present appellate proceeding is technically known as a trial de novo on the record below. R. 3:23-8(a). This means that I must make original findings and rulings on the evidence, but that I am limited to the evidentiary record created in the Municipal Court.
The record in this case establishes beyond a reasonable doubt that all defendants are guilty of violating the defiant trespass provisions of the New Jersey Criminal Code, unless some superseding constitutional or legal rule excuses or justifies disobedience of the defiant trespass statute. The defendants have attempted
to establish such superseding constitutional rules and such superseding legal rules. They have introduced testimony of Jerome Le Jeune, M.D. Ph.D., a professor of genetics, of Bernard Nathanson, M.D., an obstetrician and gynecologist, and of Francis Russel Hittinger, Ph.D., a philosopher. The purpose of the testimony is to establish that the fetus being carried by Ms. Z was a human being on September 8, 1990 and had been a human being ever since the moment of its conception. (For ease of expression, I will use the term "fetus" in this opinion to cover the entire prenatal process, and I include within it stages which are technically more precisely referred to as zygote, morula, embryo and fetus.)
Based on the claimed fact that the fetus was a human being, the defendants argue that it was a person within the meaning of the Fourteenth Amendment of the United State Constitution, which reads in pertinent part: ". . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The defendants also argue that the fetus was a person within the meaning of Article I, Paragraph 1, of the New Jersey Constitution which reads: "All persons are by nature free and independent and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."
Based on the concept that the fetus was a person, the defendants also asserted statutory affirmative defenses under N.J.S.A. 2C:3-5 (the right to use reasonable force to protect another person), N.J.S.A. 2C:3-2 (the right to use force as being necessary to save a person), N.J.S.A. 2C:3-8 (the right of a person entrusted with special responsibility for the care, supervising, discipline or safety of another person to use force to protect that other person; Mr. Loce being the father of the fetus) and N.J.S.A. 2C:3-10 (the right to seize property under certain circumstances to protect a person). [267 NJSuper Page 106] The most straightforward legal analysis of defendants' arguments that they were justified in disobeying the defiant trespass statute because of state and federal constitutional principles and because of state statutory affirmative defenses is as follows: The United States Supreme Court has ruled that a fetus is not a person within the meaning of the Fourteenth Amendment or within the meaning of any other provision of the United States Constitution. Roe v. Wade, 410 U.S. 113, 156-159, 93 S. Ct. 705, 728-730, 35 L. Ed. 2d 147 (1973). In Right to Choose v. Byrne, 91 N.J. 287, 299, 450 A.2d 925 (1982), the New Jersey Supreme Court expressly purported to decline to determine when life begins or at what point a fetus is a person. But the Court so clearly gave priority to the health claims of the mother over the life claims of the fetus (and without going through any balancing of rights analysis) that the necessary inference, in my view, is that the Court actually treated the fetus as not being a person. 91 N.J. at 310, 450 A.2d 925. See also Giardina v. Bennett, 111 N.J. 412, 420-422, 545 A.2d 139 (1988), holding that a fetus is not a person within the meaning of the Wrongful Death Act, and State in the Interest of A.W.S., 182 N.J. Super. 278, 440 A.2d 1144 (App.Div.1981), holding that a fetus is not a human being within the meaning of the criminal homicide provisions of the Code of Criminal Justice. So far as defendants' claimed statutory justification under N.J.S.A. 2C:3-5, 2C:3-2, 2C:3-8 and 2C:3-10 is concerned, the language of the statutory provisions, the legislative history and the desirability of construing statutes so as to be compatible with constitutional limitations all lead me to conclude that the New Jersey Legislature in enacting the Code of Criminal Justice in 1978 probably did not intend to treat a fetus as a person, and certainly not when doing so would limit a woman's constitutionally protected right to have an abortion. Here I must note that statutory provisions dealing with justification are to be construed in the context of ordinary, traditional crimes where we have independently functioning people interacting violently with each other. If a fetus is a person, it is a person in very special circumstances -- it exists entirely within the body of another much
larger person and usually cannot be the object of direct action by another person. In short, as a trial judge of the Superior Court of New Jersey, I cannot find any legally acceptable basis for excusing or justifying the conduct of the defendants in disobeying the defiant trespass statute.
I also note that when the New Jersey Legislature adopted the present Code of Criminal Justice in 1978, it abolished all common law crimes. N.J.S.A. 2C:1-5. It also repealed most pre-existing statutory crimes. N.J.S.A. 2C:98-2. The present Code of Criminal Justice does not prohibit abortion or regulate it in any way. Hence, entirely aside from judicial interpretation of the United States Constitution and the New Jersey Constitution, women have been legally free to have an abortion in New Jersey for more than 20 years. The ...