A federal magistrate says one of the claims by Lisa Montgomery’s lawyers should not be allowed in her trial. Montgomery is the woman accused of killing a Skidmore mother-to-be and cutting her unborn child out of the woman’s womb.

Her lawyers say Montgomery should not be charged with kidnapping because the unborn child is a fetus, not a person – according to the Roe versus Wade abortion ruling.

The chief federal district judge will rule on the judge’s recommendation before Montgomery’s trial starts next month.