A viable fetus may be deemed a child for purposes of certain statutes. Therefore, taking the life of the viable living fetus as described in your question may be second degree murder under Section 188.035. It is the opinion of this office that under current Missouri law a person performing an abortion by partially vaginally delivering a living fetus before intentionally killing the infant and completing the delivery may be charged with second degree murder under Section 188.035, RSMo 1994. Your question only inquires about a charge of second degree murder. Therefore, we do not address whether the facts in a particular case might warrant a charge of first degree murder.
Statutes relating to abortion often raise questions of constitutionality.
However, we do not in the process of issuing opinions address the constitutionality of Missouri statutes. This power is reserved to the courts by the Constitution.