                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3727
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                                   Samantha Flute

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

                    Appeal from United States District Court
                   for the District of South Dakota - Aberdeen
                                  ____________

                          Submitted: November 16, 2018
                              Filed: July 5, 2019
                                 ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

       After the death of Samantha Flute’s newborn baby due to combined drug
toxicity, the United States charged her with one count of involuntary manslaughter
committed within Indian Country, in violation of 18 U.S.C. §§ 1112 and 1153. Flute
filed a motion to dismiss the Indictment on the grounds that the charged offense did
not cover her or her conduct, and the district court granted the motion. The United
States appeals. Having jurisdiction pursuant to 28 U.S.C. § 1291, we reverse.
                                            I.

       On August 19, 2016, Samantha Flute arrived at a Sisseton, South Dakota
hospital in full-term labor. She gave birth at 38 weeks gestation to a fully developed
baby boy, Baby Boy Flute. Baby Boy Flute was well developed, normal and intact,
with no obvious signs of trauma or injury, but died approximately four hours after
birth. At the time of admission, Flute tested positive for cocaine and a number of
prescription and over-the-counter drugs. During efforts to resuscitate Baby Boy
Flute, Flute admitted that she had, shortly prior to his birth, taken three times the daily
dose of Lorazepam, which had been prescribed to her during her only prenatal
medical visit less than one week before Baby Boy Flute’s birth; she had snorted
hydrocodone, which she believed to have been laced with cocaine based on the
feeling it gave her; and ingested cough medicine. Flute admitted that she knew that
ingesting these substances was against the best interests of Baby Boy Flute, but that
she did so because she needed to get high. An autopsy confirmed that Baby Boy
Flute had no anatomical cause of death, but noted the presence of several substances
that had not been medically administered to Baby Boy Flute while he was alive. The
forensic pathologist who performed the autopsy concluded that Baby Boy Flute had
died from combined drug toxicity due to the substances Flute ingested while Baby
Boy Flute was still in utero.

      The government indicted Flute on one count of involuntary manslaughter. The
Indictment specifically charged the following:

       Between on or about August 19, 2016 and August 20, 2016, in Agency
       Village, in Indian country, in the District of South Dakota, Samantha
       Flute, an Indian, unlawfully killed a human being, Baby Boy Flute,
       without malice, in the commission of a lawful act in an unlawful manner
       which might produce death. Such act was committed in a grossly
       negligent manner, with actual knowledge that her conduct was a threat
       to the life of another and with actual knowledge that would reasonably

                                           -2-
      enable her to foresee the peril to which her act subjected another, to wit:
      Samantha Flute did unlawfully kill Baby Boy Flute by ingesting
      prescribed and over-the-counter medicines in a grossly negligent
      manner, and did thereby commit the crime of involuntary manslaughter,
      in violation of 18 U.S.C. §§ 1153 and 1112.

Indictment 1-2, Dist. Ct. Dkt. 2. Flute filed a motion to dismiss the Indictment. She
admitted that she gave birth to an alive Baby Boy Flute, but argued that even if she
had engaged in the conduct alleged in the Indictment, the conduct did not constitute
the charged offense under federal law because § 1112 was not intended to apply to
a mother’s conduct with respect to her unborn child. She also asserted that she could
not be charged under § 1112 because an unborn child is not a “human being” for the
purposes of that statute. Flute also asserted that the involuntary manslaughter statute
was unconstitutionally vague as applied to her.

       The district court granted the motion to dismiss the Indictment, holding that the
involuntary manslaughter statute did not apply to Flute because she was not within
the class of defendants under the statute. In reaching this conclusion, the district
court acknowledged that “Baby Boy Flute is within the class of victims Congress
historically intended to protect under 18 U.S.C. § 1112.” It nevertheless imported
language from 18 U.S.C. § 1841 that bars “prosecution . . . of any woman with
respect to her unborn child” to find that § 1112 did not reach Flute. The district court
read this provision as “creat[ing] a class of persons who cannot be prosecuted under
the federal criminal statutes for injury caused to an unborn child,” and ultimately
concluded that the provision was “a clear statement from Congress that the federal
assault and murder statutes cannot be applied to the pregnant woman herself for any
actions she takes with respect to her unborn child.” United States v. Flute, No. 1:17-
CR-10017-CBK, 2017 WL 5495170, at *3 (D.S.D. Nov. 14, 2017). The district court
thus determined that, but for the § 1841 exception for mothers, Flute would have been
an appropriate defendant. The district court did not address Flute’s as-applied
constitutional challenge.

                                          -3-
       On appeal, the government asserts that the district court erroneously imported
the § 1841 exception in determining that the federal involuntary manslaughter statute
did not extend to the class of defendants of which Flute was a part—mothers who
inflicted injury upon their unborn while the child was still in utero, leading to the
child’s death after birth. Rather, the government contends that § 1841 is a separate,
unrelated, and uncharged statute without relevance to the application of the
manslaughter statute to actions of a mother against her unborn child. Flute responds
that the district court correctly applied § 1841 and also asserts that the Indictment
should have been dismissed because Baby Boy Flute was not a human being when
the injuries were sustained in utero and thus § 1112 does not criminalize Flute’s
conduct.

                                           II.

       “We review de novo a district court’s dismissal of an indictment for failure to
state an offense.” United States v. Steffen, 687 F.3d 1104, 1109 (8th Cir. 2012). “An
indictment is legally sufficient on its face if it contains all of the essential elements
of the offense charged, fairly informs the defendant of the charges against which [s]he
must defend, and alleges sufficient information to allow a defendant to plead a
conviction or acquittal as a bar to subsequent prosecution.” United States v. Fleming
8 F.3d 1264, 1265 (8th Cir. 1993). In determining whether a charged crime
encompasses the conduct alleged, the court engages in statutory interpretation; the
“starting point in interpreting a statute is always the language of the statute itself.”
United States v. Jungers, 702 F.3d 1066, 1069 (8th Cir. 2013) (quoting United States
v. S.A., 129 F.3d 995, 998 (8th Cir. 1997)).

      Flute was indicted for involuntary manslaughter under 18 U.S.C. § 1112, which
criminalizes “the unlawful killing of a human being without malice . . . in the
commission . . . without due caution and circumspection, of a lawful act which might
produce death” and under § 1153, which provides federal jurisdiction over crimes in

                                          -4-
Indian Country. The dispositive questions on appeal are whether Baby Boy Flute is
within the class of victims protected by § 1112 and whether Flute is within the class
of defendants covered by § 1112.

                                         A.

       Turning to the first question, we assess whether Baby Boy Flute, who sustained
injuries in utero that caused his death after birth, falls within the class of victims
protected by § 1112. Flute asserts that Baby Boy Flute does not because he was not
a human being at the time the conduct which ultimately caused death occurred. We
disagree with this contention and agree with the district court that Baby Boy Flute is
a proper victim under the federal involuntary manslaughter statute.

       In 2002, Congress passed the Born Alive Infants Protection Act, which defines
the term “human being” for all Acts of Congress:

      In determining the meaning of any Act of Congress, or of any ruling,
      regulation, or interpretation of the various administrative bureaus and
      agencies of the United States, the words “person”, “human being”,
      “child”, and “individual”, shall include every infant member of the
      species homo sapiens who is born alive at any stage of development.

1 U.S.C. § 8(a). The Act further defines “born alive” as

      the complete expulsion or extraction from his or her mother of that
      member, at any stage of development, who after such expulsion or
      extraction breathes or has a beating heart, pulsation of the umbilical
      cord, or definite movement of voluntary muscles, regardless of whether
      the umbilical cord has been cut, and regardless of whether the expulsion
      or extraction occurs as a result of natural or induced labor, cesarean
      section, or induced abortion.



                                         -5-
Id. § 8(b). Under this definition, the uncontested fact that Baby Boy Flute survived
for several hours after his birth—complete expulsion or extraction from his
mother—until succumbing to the drugs in his system would establish that he was
“born alive.” Because he was born alive, under the plain language of these statutes,
Baby Boy Flute was a “human being.” And because the language of the manslaughter
statute plainly encompasses the death of a born-alive child—a child at the earliest
possible moment that it exists outside of the womb—the statute necessarily extends
to conduct that occurred in utero and caused death to this born-alive child. Baby Boy
Flute’s death and Flute’s conduct while pregnant thus fall within the ambit of the
involuntary manslaughter statute.

       As the district court noted, this conclusion is consistent with the common-law
understanding of the “born alive” rule, whereby liability extended to the death of a
child born alive related to injuries received in utero. See United States v. Spencer,
839 F.2d 1341, 1343 (9th Cir. 1988) (“[I]t was well-established in common law that
murder was the killing of one human being by another, and that an infant born alive
that later died as a result of fetal injuries was a human being. . . . In view of
Congress’s intent to reflect the state and common-law definition of murder when it
passed the statute, and the state and common-law acceptance of infants who died
subsequent to birth due to fetal injuries as human beings, it seems clear that Congress
intended fetal infanticide to be included within the statutory definition of ‘murder’
under 18 U.S.C. § 1111.”). We need not resolve Flute’s argument that Baby Boy
Flute was not a “human being” while in utero to determine that Baby Boy Flute is
within the class of victims protected by § 1112 because application of the born-alive
statute hinges on the time of the born-alive child’s death, not initial injury. We
further note that Flute’s argument is inconsistent with the common law understanding
that homicide does not occur unless and until the victim actually dies; because death
completes the offense of manslaughter, the victim’s status at death is the
determination rather than the victim’s status when the injuries were sustained. See
1 Wayne R. LaFave, Substantive Criminal Law § 1.2(c) (3d ed 2018); cf. 2 id.

                                         -6-
§ 14.1(e). Baby Boy Flute is thus within the class of victims described under § 1112,
regardless of whether he was or was not (as Flute argues) a human being when he
sustained injuries in utero.

                                         B.

       We next turn to whether Flute falls within the class of defendants recognized
by § 1112; that is, whether the statute extends criminal culpability to a mother for
actions against her unborn child. Although the plain language of § 1112 and the Born
Alive Infants Protection Act plainly encompasses Flute and her conduct, the district
court erroneously utilized a separate, unrelated, and uncharged statutory provision
to exclude Flute’s conduct from § 1112. The district court relied on the Unborn
Victims of Violence Act, which “recognizes unborn children as a class of victims not
previously protected under federal law and criminalizes the killing or injuring of
unborn children during the commission of certain federal offenses.” United States
v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011). This Act creates a separate
offense for an individual who engages in any of a list of enumerated crimes, including
involuntary manslaughter, which results in “the death of, or bodily injury . . . to, a
child, who is in utero at the time the conduct takes place . . . .” 18 U.S.C. § 1841.
Section 1841 thus has the effect of expanding the reach of numerous federal criminal
statutes to protect unborn victims.

      Despite the fact that § 1841 expands criminal culpability for crimes against the
unborn, the district court relied on an exception in this section to conclude that the
involuntary manslaughter statute did not encompass Flute’s conduct as the mother of
the unborn child. Section 1841 contains an exception that bars prosecution of a
mother for actions taken against her own unborn child. 18 U.S.C. § 1841(c)(3)
(“Nothing in this section shall be construed to permit the prosecution . . . of any
woman with respect to her unborn child.”). Although neither 18 U.S.C. § 1112 nor
1 U.S.C. § 8(a) contain a similar exception, the district court concluded that the

                                         -7-
exception in § 1841 was a “clear statement from Congress that the federal assault and
murder statutes cannot be applied to the pregnant woman herself for any actions she
takes with respect to her unborn child.” Flute, 2017 WL 5495170, at *3.

        The district court’s reliance on § 1841 was in error. Our Court has previously
determined § 1841 has no applicability or reach beyond its own provisions.
Montgomery, 635 F.3d at 1086 (rejecting government’s argument that attempted to
read the definition of “unborn child” in 18 U.S.C. § 1841 into the definition of person
in 18 U.S.C. § 1201(a) (kidnapping resulting in death) and noting that the definition
of “unborn child” in § 1841 was limited to that section only). The words “[n]othing
in this section” make clear that any limitations or exceptions in § 1841 apply only to
§ 1841 and cannot be used as a basis to impose a limitation on other, unrelated
statutory provisions. Had Congress intended the § 1841 exception for conduct of a
mother to her own unborn child to apply more broadly, it would have expressly stated
so. See Jungers, 702 F.3d at 1075 (stating that “Congress knows how to craft an
exception . . . when it intends one” (quoting Jonah R. v. Carmona, 446 F.3d 1000,
1007 (9th Cir. 2006))). We will not read an exception into a statutory provision
where it does not exist. Thus, § 1841 does not create an exception for Flute.

       The district court also based its holding on its discussion of the potential
ramifications of applying the federal involuntary manslaughter statute to Flute,
particularly noting its reluctance to expand the statute to reach a wide variety of
conduct that, in the district court’s view, Congress never intended to criminalize. But
such considerations are beyond the scope of our review. Our task in considering
issues of statutory interpretation is to do just that: interpret the statute as written. See
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, (1992) “[I]n interpreting a
statute a court should always turn first to one, cardinal canon before all others. We
have stated time and again that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there.”). The language of the
relevant statutory provisions clearly states that the federal involuntary manslaughter

                                            -8-
statute applies to a child born alive, who later succumbed to injury suffered in utero,
even where that injury was inflicted by the unborn child’s own mother.1 Our task
does not involve passing judgment on the wisdom of a given statutory provision or
opining on how that statute may be used in the future. Those questions are best left
for the legislative body, not the judicial branch. See Ferguson v. Skrupa, 372 U.S.
726, 730 (1963) (“[C]ourts do not substitute their social and economic beliefs for the
judgment of legislative bodies, who are elected to pass laws. . . . We refuse to sit as
a superlegislature to weigh the wisdom of legislation . . . .” (internal quotation marks
and citation omitted)).

       The federal involuntary manslaughter statute criminalizes the killing of a
“human being,” which Congress has clearly defined as including a child “born alive.”
Baby Boy Flute, who died four hours after birth, was a human being for the purpose
of the statute. He is thus a victim within the scope of § 1112. No applicable
exception for conduct of a mother that causes injuries sustained in utero and resulting
in death after birth exists. Flute is thus an appropriate defendant within the scope of
§ 1112 and may be criminally charged for her conduct of abusing prescription and
over-the-counter drugs, ultimately resulting in Baby Flute’s death after birth. We
therefore conclude that the district court erroneously dismissed the Indictment on the
basis that the federal involuntary manslaughter statute does not extend to cover
Flute’s conduct. Because we conclude that the relevant statutes unambiguously
encompass Flute and her conduct, we need not address her argument regarding the

      1
        In the dissent’s view, the common law understanding of manslaughter
demands a different result. While the common law may inform the parameters of a
federal offense, it may do so only to the extent that it comports with the federal
statute. See United States v. Castleman, 572 U.S. 157, 163 (2014) (“[W]e recognized
the general rule that ‘a common-law term of art should be given its established
common-law meaning,’ except “‘where that meaning does not fit.’” (quoting United
States v. Johnson, 559 U.S. 133, 139 (2010)). The dissent’s recitation of the meaning
of common law manslaughter “does not fit” with the express definitions Congress
provides. We thus rely only on the express statutory language.
                                          -9-
rule of lenity. See Maracich v. Spears, 570 U.S. 48, 76 (2013). We also decline to
address Flute’s as-applied challenge, and we leave to the district court the task of
deciding that issue in the first instance. See, e.g., Williams v. Target Stores, 479 F.
App’x 26, 28 (8th Cir. 2012) (per curiam) (“That issue was not decided below,
however, and is a matter best left to the district court to consider in the first instance
on remand.”).

                                           III.

      The district court erred in dismissing the Indictment; accordingly, we reverse
and remand with instructions to reinstate the Indictment. On remand, the district
court may take up Flute’s as-applied due process challenge.

COLLOTON, Circuit Judge, dissenting.

       The federal manslaughter statute was enacted in 1909. According to the United
States Attorney, the government has never before charged a mother with
manslaughter based on prenatal neglect that causes the death of a child. As the
district court observed, accepting the government’s view of the statute could have
broad ramifications for the criminal liability of mothers based on their conduct while
pregnant. Resolving this significant issue of first impression requires careful
attention to the historical underpinnings of the manslaughter statute. While I do not
agree with the district court’s particular statutory analysis, I do conclude that
Congress has not adopted a manslaughter statute that imposes criminal liability on a
mother for prenatal conduct that results in the tragic death of her child. I would
therefore affirm the order dismissing the indictment.

      Manslaughter is a crime of long lineage. In the eighteenth century, Blackstone
defined it as “the unlawful killing of another, without malice, either express or
implied; which may be either voluntarily, upon a sudden heat; or involuntarily, but


                                          -10-
in the commission of some unlawful act.” 4 William Blackstone, Commentaries
*191. Commission of an “unlawful act” included doing “an act, lawful in itself, but
in an unlawful manner, and without due caution and circumspection.” Id. at *192.
In 1909, Congress amended the federal criminal code to include the current
definition, which aligns with Blackstone’s:

             Manslaughter is the unlawful killing of a human being
             without malice. It is of two kinds:

             Voluntary – Upon a sudden quarrel or heat of passion.

             Involuntary – In the commission of an unlawful act not
             amounting to a felony, or in the commission in an unlawful
             manner, or without due caution and circumspection, of a
             lawful act which might produce death.

18 U.S.C. § 1112(a).2

      “It is a settled principle of interpretation that, absent other indication, Congress
intends to incorporate the well-settled meaning of the common-law terms it uses.”
Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013) (internal quotation omitted).
“Manslaughter” and its common-law definition are longstanding terms of art in the
criminal law.


      2
        As enacted in 1909, the words defining involuntary manslaughter appeared in
a slightly different order: “In the commission of an unlawful act not amounting to a
felony, or in the commission of a lawful act which might produce death, in an
unlawful manner, or without due caution and circumspection.” Act of March 4, 1909,
ch. 321, Pub. L. No. 60-350, § 274, 35 Stat. 1088, 1143. The phrase “of a lawful act
which might produce death” was moved to the end of the sentence in 1948. See Act
of June 25, 1948, ch. 645, § 1112(a), 62 Stat. 683, 756. A Reviser’s Note to the 1948
version stated that “[m]inor changes were made in phraseology.” 18 U.S.C. § 1112(a)
reviser’s note (Supp. III 1950).
                                          -11-
      [W]here Congress borrows terms of art in which are accumulated the
      legal tradition and meaning of centuries of practice, it presumably
      knows and adopts the cluster of ideas that were attached to each
      borrowed word in the body of learning from which it was taken and the
      meaning its use will convey to the judicial mind unless otherwise
      instructed.

Morissette v. United States, 342 U.S. 246, 263 (1952). We must presume that
Congress intended to incorporate the common-law meaning of common-law terms
that it employs, “unless the statute otherwise dictates.” Neder v. United States, 527
U.S. 1, 23 (1999) (internal quotation omitted). In discerning the meaning of
§ 1112(a), then, it is appropriate to consider the common-law history of the
manslaughter offense and its application to the circumstance of prenatal neglect by
a mother that later results in the death of a child born alive.

      The common law of England recognized that a third party could be guilty of
homicide for causing prenatal injuries to a mother or unborn child that resulted in the
subsequent death of a child born alive. The principal debate in that situation
concerned whether it was feasible to prove that prenatal acts caused the death of a
live-born child. Lord Coke suggested that

      [i]f a woman be quick with childe, and by a Potion or otherwise killeth
      it in her wombe; or if a man beat her, whereby the childe dieth in her
      body, and she is delivered of a dead childe, this is a great misprision,
      and no murder: but if the childe be born alive, and dieth of the Potion,
      battery, or other cause, this is murder: for in law it is accounted a
      reasonable creature, in rerum natura, when it is born alive.

3 Edward Coke, Institutes of the Laws of England 50 (London, M. Flesher 1644).
Others such as Hale and Lambard, “impressed by the difficulty of proving that the
death of a live-born child was occasioned by a defendant’s prenatal acts, took a
different view from Coke.” D. Seaborne Davies, Child-Killing in English Law, 1

                                         -12-
Modern L. Rev. 203, 209 (1937); see 1 Matthew Hale, The History of the Pleas of the
Crown 433 (London, E. & R. Nutt and R. Gosling 1736); William Lambard,
Eirenarcha, or Of the Office of the Justices of Peace 231 (London 1607 ed.) (1581).
On the question whether proof of causation was legally possible, the law adopted
Coke’s position.

       Thus, in cases involving prenatal acts of a third party that caused the death of
a child born alive, the common law recognized a crime of murder or manslaughter.
In Rex v. Senior (1832) 168 Eng. Rep. 1298; 1 Mood. C.C. 346, the court upheld a
manslaughter conviction for a male midwife who negligently compressed the head
of an infant in the act of birth, thereby causing the child’s death after he was
completely born alive. The court in Regina v. West (1848) 175 Eng. Rep. 329; 2 Car.
& K. 784, similarly instructed a jury that a defendant would be guilty of the murder
of a child carried by another if she, “by a felonious attempt to procure abortion,
caused the child to be brought into the world, for which it was not then fitted, and that
the child did die in consequence of its exposure to the external world.” 175 Eng. Rep.
at 330. Such decisions led the Ninth Circuit to conclude that “it was well-established
in common law that murder was the killing of one human being by another, and that
an infant born alive that later died as a result of fetal injuries was a human being.”
United States v. Spencer, 839 F.2d 1341, 1343 (9th Cir. 1988).

       When it came to prosecutions of a mother, however, Coke’s view did not
prevail. The issue arose in two prominent cases under the law of England. In both
decisions, courts ruled that a mother was not liable for manslaughter based on
prenatal neglect that resulted in the death of a child born alive. Regina v. Knights
(1860) 175 Eng. Rep. 952; 2 F. & F. 45, involved a mother who knew that she was
about to give birth and wilfully abstained from taking the necessary precautions to
preserve the life of the child after its birth. The prosecution urged that where the
child died as a consequence of the alleged criminal neglect, the mother would be
guilty of manslaughter. 175 Eng. Rep. at 953. The court, however, had “never heard

                                          -13-
such a doctrine” and ruled that the mother could not be convicted of manslaughter.
Id. The British Parliament in 1874 then considered proposals to provide for the
punishment of a mother guilty of culpable prenatal neglect resulting in death, but no
such provision was enacted. Davies, supra, at 210.

       Thereafter, the decision in Rex v. Izod (1904) 20 Cox C.C. 690 (Eng.),
reaffirmed the rule of Knights. The court rejected the prosecution’s theory that
“failure on the part of a woman to make proper provision for her expected
confinement, resulting in the complete birth and subsequent death of a child, amounts
to manslaughter.” Id. at 691. To establish manslaughter by a mother, the court ruled,
“neglect must be subsequent to the birth.” Id. One leading treatise stated the
common-law rule in the early twentieth century: “The mere failure on the part of a
woman to make proper provision for her expected confinement, resulting in the
complete birth and subsequent death of a child, is not sufficient in itself to warrant
a conviction of manslaughter.” 1 William Oldnall Russell, A Treatise on Crimes and
Misdemeanors 675-76 (William Feilden Craies & Leonard William Kershaw eds., 7th
ed. 1910).

       The common law in early America was no different. A compilation of
American and English cases through 1909 stated the law: “The wilful and negligent
omission of a mother to care for herself or to make preparations for the birth of a
child will not amount to manslaughter, although as a result of such neglect the child
dies shortly after birth.” 13 The American and English Annotated Cases 43 (William
M. McKinley et al. eds., 1909). The few American cases on point followed the
English common-law rule. In Brown v. State, 49 So. 146 (Miss. 1909), a woman gave
birth in the toilet room of a train; the baby dropped to the ground through the stool
and died after uttering a faint cry. The prosecution maintained that the mother was
guilty of “such criminal negligence as to constitute manslaughter,” but the Supreme
Court of Mississippi ruled that the mother was not “guilty of any crime under the
law.” Id. at 147. As late as 1954, the Supreme Court of Wyoming addressed a

                                        -14-
contention by the State that a mother was guilty of manslaughter for her failure, prior
to the birth of a child, to provide medical care for an infant to be born. State v.
Osmus, 276 P.2d 469, 474-75 (Wyo. 1954). The court reported that “no case decided
in this country has been found going to the length of the contention of the state,” and
then applied the common-law rule of Knights and Izod that a mother is not guilty of
manslaughter based on prenatal neglect causing the subsequent death of a child born
alive. Id. at 475 (emphasis added).

       The 1909 federal manslaughter statute is best understood as incorporating this
common-law meaning. “Unlike the homicide statutes in some modern penal codes
that specifically define each element of the various degrees of criminal homicide, the
federal homicide statutes simply adopt the language of the traditional common-law
offenses of murder and manslaughter.” United States v. Browner, 889 F.2d 549, 551
(5th Cir. 1989) (citations omitted). The Ninth Circuit, in upholding the murder
conviction of a man whose attack on a pregnant woman caused the subsequent death
of a child born alive, relied on “Congress’s intent to reflect the state and common-law
definition of murder” when it passed the homicide statutes in 1909. Spencer, 839
F.2d at 1343. Accord United States v. Serawop, 410 F.3d 656, 666 (10th Cir. 2005)
(concluding that the federal manslaughter statute should be read “in accordance . . .
with the history of the common law”); United States v. Sargent, 18 M.J. 331, 336
(C.M.A. 1984) (explaining that the Manual for Courts-Martial adopted the federal
statutory definition of manslaughter, which is “declaratory of the common law”). The
limited legislative history of the provision, insofar as it should be considered,
suggested no intent to expand the meaning to encompass a mother’s prenatal acts:
Manslaughter was “defined and classified in language similar to that to be found in
the statutes of a large majority of the States.” H.R. Rep. No. 2, 60th Cong., 1st Sess.,
at 24 (1908).

     Later enactments did not change the meaning of manslaughter in § 1112(a).
The Born-Alive Infants Protection Act, enacted in 2002, affirms that the term “human

                                         -15-
being” in the manslaughter statute includes “every infant member of the species homo
sapiens who is born alive at any stage of development.” 1 U.S.C. § 8(a). The
common law, however, already recognized that an infant born alive is a human being
who could be the victim of manslaughter, yet the law did not make a mother guilty
of manslaughter based on prenatal acts. The 2002 statute does not address a mother’s
liability under the manslaughter statute. The Unborn Victims of Violence Act of
2004, 18 U.S.C. § 1841, likewise does not broaden the manslaughter statute beyond
its original meaning.

       The majority responds that the common-law meaning of manslaughter “does
not fit” with the federal manslaughter statute. Ante, at 9 n.1. Of course, “we do not
assume that a statutory word is used as a term of art where that meaning does not fit,”
and we “do not force term-of-art definitions into contexts where they plainly do not
fit and produce nonsense.” Johnson v. United States, 559 U.S. 133, 139-40 (2010)
(internal quotation omitted). So when Congress created the new statutory term
“violent felony” and defined it to mean a crime with an element of using “physical
force” against another person, the common-law meaning of “force” would have been
a “comical misfit.” Id. at 139. That was so because the common-law meaning of
“force” encompassed “even the slightest offensive touching,” which obviously was
not “violent.” Id. at 145. But here, Congress did not coin any new term; it simply
criminalized the traditional offense of “manslaughter” and gave it the common-law
definition that dates to Blackstone. In that situation, the statutory words and the
common-law meaning fit hand in glove. This case no doubt depends on the “express
statutory language,” ante, at 9 n.1, but the question is what the language means. As
a unanimous Supreme Court reaffirmed just last month, “[w]hen a statutory term is
‘obviously transplanted from another legal source,’ it ‘brings the old soil with it.’”
Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall, 138 S. Ct.
1118, 1128 (2018) (quoting Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947))).



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        In sum, the common-law meaning of manslaughter did not encompass prenatal
neglect by a mother that later caused the death of her child born alive. Research
reveals no decision in England or the United States before 1909 holding that a
mother’s prenatal neglect constituted manslaughter. Congress in 1909 adopted the
common-law definition of manslaughter in § 1112(a); nothing in the statute dictates
that its scope is broader than the common-law meaning. No federal statute enacted
after 1909 has expanded the manslaughter statute to encompass a mother’s prenatal
neglect.

       This case raises profound moral and policy questions, but it requires an Act of
Congress to extend federal criminal liability to a mother whose drug use during
pregnancy causes the death of her child. I conclude that under present law, the
government’s allegations against Samantha Flute do not state an offense, and the
district court’s order dismissing the indictment should be affirmed.
                           _________________________




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