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State v. Loce


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

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