State v. J.M.S. , 697 Utah Adv. Rep. 60 ( 2011 )

Justice LEE,

concurring:

185 I agree with the court's conclusion that Aaron Harrison's physical assault on J.M.S. was not an abortion "procedure" under Utah Code section 76-7-301(1), but write separately to articulate grounds for that construction that differ somewhat from those embraced by the majority. For me, the salient basis for interpreting "procedure" to encompass medical methods and to exclude a physical assault is in the structural interplay between the abortion statute, Ura Cop® Ann. § 76-7-314(1)(b)(G) (Supp.2009), and the homicide statute, id. § 76-5-201(1)(a) (2008). As the court explains in Part LB of its opinion, the coexistence of those two statutes clearly indicates that medical abortions are the domain of the abortion statute while non-medical means of causing death (like an assault) are covered by the homicide statute. Supra 124-25. The contrary view advanced by J.M.S. (that all methods of killing an unborn child count as an "abortion") cannot be accepted without "renderfing] meaningless the legislature's designation of the intentional killing of an unborn child as a criminal homicide." Supra 1 25.

36 On that point I am in full agreement with the majority and concur in Part LB of the court's opinion. I find the rest of the court's analysis unnecessary and ultimately unpersuasive, however, and write separately to explain why.

T37 The court's opinion includes two other points in addition to the structural analysis in Part LB: (a) that the legislature "intended [no] differences among its usage of 'procedures' 'abortion procedures, and 'medical procedures'" as those terms are used in the abortion statute, supro 119 (Part LA); and (b) that it would be "absurd" to construe "procedures" to "includ[e] any series of actions or steps, whether humane or heinous, intended to kill a fetus," supra 131 (Part 1.0). I do not see either of these points as independent grounds for our holding today.

1138 First, without the inference from the structural interplay between the two different statutes criminalizing the killing of unborn children, there would be no persuasive ground for reading the term "procedure" to mean "medical procedure." I agree with the majority that "[what one means by using the term 'procedure' depends heavily on context." Supra 114. But the context cited by the court in part LA strikes me as insufficient. As the court acknowledges, the abortion statute's definition employs the term "procedure" without modification or limitation. Supra 110. Without more, the use of the unmodified term "procedure" in the abortion statute suggests that the legislature eschewed the exeluded modifier that appears extensively elsewhere in the act. Our cases often treat such internal differences in terminology as intentional.¹ Thus, the face of the abortion statute itself seems only to undermine the view that "the legislature intended [no] differences among its usage of 'procedures, 'abortion procedures' and 'medical procedures." " Supra 1 19.

T 39 It may well be true (and is for reasons explained in part LB in the majority opinion) that the legislature used " 'procedures,' 'medical procedures' and 'abortion procedures' interchangeably throughout its provisions" with "no intended difference among any of the usages." Supro 119. But that conclusion is not evident in the ink on the paper of the abortion statute. Without looking beyond that statute, it would be impossible to tell whether "the modifier 'medical'" was "surplusage," as the majority concludes, su-pro 119, or intended, as is linguistically possible for reasons described above.

€40 There are means at our disposal to answer the question that the majority raises in Part I.A-whether the "ordinary and accepted meaning of the term 'procedure,'" supra T 21, is limited to medical methods. I have employed such means (corpus linguistics data) before, explaining that an empirical measure of ordinary usage may be appropriate to check our less-than-perfect judicial intuition.² In this case, the majority's confident assertion about the "ordinary and accepted meaning" of the term "procedure" in an abortion setting ultimately is based on its intuition-that although "procedure" sometimes signifies any means of accomplishing a result, an "abortion procedure" has reference to a medical procedure. I do not doubt that intuition. (In fact, empirical corpus analysis confirms it.³) My quarrel is just that this conclusion follows from our understanding of the word "procedure" in the context of the term "abortion," not from the fact that the statute most often refers to "medical procedures" and not just "procedures."

141 Second, I disagree with the court's conclusion that our holding follows from our canonical inclination to "refrain[ ] from blind obedience to the letter of the law that leads to patently absurd ends." Supro 127. This strikes me as an incorrect application of a misplaced canon. The absurdity canon is properly invoked where we conclude that a certain construction is so absurd that we are certain that "the legislative body which authored the legislation could not have intended it." State ex rel. Z.C., 2007 UT 54, ¶ 13, 165 P.3d 1206. "But the question in such cases is whether the practical implications of the plain text (not a text with two [plausible]

interpretations) are so absurd and ridiculous that we are convinced that the legislature could not have meant what it said." Marion Emergy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, 169, 267 P.3d 868 (Lee, J., dissenting). This is not such a case. The statute does not plainly extend to nonmedical abortion procedures, and the question accordingly is not whether to ignore such language on the ground that the legislature "could not have intended it."

142 We are faced instead with a term ("procedure") of ambiguous meaning that we must interpret in light of its context. That context undoubtedly includes the practical implications of our construction, including, of course, any absurdities. I therefore agree with the majority to the extent it is simply suggesting that practical realities should inform our construction of the abortion statute. But the relevant practical realities are not just ones that are so clearly absurd that they would convince us to override statutory plain language.⁴ The relevant question in this case is a broader one-whether the practical implications of one interpretation of "procedure" are sufficiently problematic to undermine a judicial decision attributing that construction to the legislature.

43 Finally, it seems to me that without the inference from the interplay between the homicide statute and the abortion statute, it would not at all "be absurd to construe the 'abortion' definition as including any series of actions or steps, whether humane or heinous, intended to kill a fetus" Supra 131. I certainly agree that the legislature must have meant to impose criminal penalties in the "barbaric scenarios designed to kill an unborn child" imagined by the majority. Supra 129. But the absurdity identified by the majority is rooted not in the abortion statute's definition itself but again in the interplay between the two statutes at issue. Of course the legislature did not mean to "condone the beating of a woman to cause a miscarriage or a sniper's shot intended to kill a fetus but merely wound its mother." Supra 131. But the question before us is not whether such acts are criminal, but whether they fit under the homicide statute or the abortion statute.

T 44 For me, the answer to that question is simply and thoroughly established by the structural argument set forth in Part LB of the court's opinion. I find the discussion in Parts ILA and I.C either unconvincing or entirely dependent on the structural analysis in Part LB, and I respectfully join only the latter.

1 . See, e.g., Carrier v. Salt Lake Cnty., 2004 UT 98, ¶ 30, 104 P.3d 1208 ("[Wle should give effect to any omission in [a statute's] language by presuming that the omission is purposeful."); Biddle v. Wash. Terrace City, 1999 UT 110, ¶ 14, 993 P.2d 875 ("[Olmissions in statutory language should 'be taken note of and given effect'") (quoting Kennecott Copper Corp. v. Anderson, 30 Utah 2d 102, 514 P.2d 217, 219 (1973)); Field v. Boyer Co., 952 P.2d 1078, 1086-87 (Utah 1998) (Stewart, J., concurring in part and dissenting in part) (discussing the expressio unius canon of construction).

2 . J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.J, 2011 UT 38, ¶¶ 89-105, 266 P.3d 702 (Lee, J., concurring in part and concurring in the judgment).

3 . In contemporary usage, "abortion procedure" references the termination of a pregnancy under medical conditions, such as in a clinic and under the supervision of a physician. This conclusion is based on a review of every instance in which the words "abortion" and "procedure" co-occur in the Corpus of Contemporary American Usage. See, The Corpus of Contemporary American English (COCA), http://corpus.byun.eduw/coca/ (last visited Dec. 1, 2011). Enter "[abortion).[n*]" in the "word(s)" field and "[procedure}.{n*]" in the "collocates" field, and select "LIST," then click "search."

This search revealed 223 co-occurrences of "abortion" and "procedure." Of those, 106 referred to specific medical procedures such as dilation and extraction or vacuum aspiration. An additional 75 refer to circumstances in which an abortion is performed in a "clinic" or with a "doctor" or under "surgical" conditions. The remaining 27 use the terms "abortion" and "procedure" interchangeably. In 5 instances, the term "procedure" and "abortion" were not related. Not once were the terms used to connote an ad hoc, violent, nonmedical effort to terminate a fetus (as by striking the mother's abdomen).

4 . Cf. Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶¶ 70, 70 n. 23, 267 P.3d 863, P.3d (Lee, J., dissenting) (suggesting that the "related but separate canon of statutory interpretation" that is implicated where "'statutory language plausibly presents the court with two alternative readings'" and "'prefer[s) the reading that avoids absurd results'" is "better understood to suggest that where two [plausible] interpretations present themselves, we consider the practical consequences of each in evaluating which one more reasonably would be understood by a person familiar with the statute in its legal and linguistic context" (quoting Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263)).