"To use this law as the state wishes in this case, to prosecute a doctor for performing an abortion for a patient who sought this medical care and consented to it is … a gross abuse of the criminal justice system," the pleading filed in Cecil County Circuit Court says.

"The state's vague charges reflect an attempt to intimidate any physician who might consider performing an abortion in Cecil County with the threat of criminal prosecution," the pleading continues, "effectively banning the constitutionally protected procedure."

Unlike many other states, Maryland does not define "viable" by the number of weeks a fetus is in the womb, leaving it up to doctors to determine. Defense attorneys said the wording of the law makes it impossible for people to understand what is legal and what isn't, and leaves the definition of whether a fetus is viable "solely on the judgment of the doctor."

The court document quotes from memos from lawmakers at the time of the bill's passage saying, "The bill does not apply to a woman's right to terminate her pregnancy."

The lawyers cite a memo from then-Del. Charles R. Boutin, a Republican from Cecil and Harford counties and one of the bill's sponsors, telling the Judiciary Committee the law is "clearly and solely a victim's rights bill." The motion says the fetal homicide law "was intended to create an enhanced penalty for domestic violence committed against a pregnant woman if she lost the fetus as a result of that violence."

Boutin, who is now a state administrative law judge, said Friday that it would be inappropriate for him to comment on the statute.

Riley's attorneys, including former Baltimore State's Attorney Stuart O. Simms, also argue that doctors are exempt from the fetal homicide statute. "Because Maryland law expressly provides that a licensed physician performing an abortion is immune from criminal liability, the charges against Dr. Riley should be dismissed," the court document says.

The law says that doctors cannot be held liable "for fetal death that occurs in the course of administering lawful medical care."

peter.hermann@baltsun.com

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