JACKSON, Wyo. (AP) — A Wyoming man charged with killing his girlfriend in Idaho in July 2016 argues the death of her unborn baby does not qualify as a second murder that makes him eligible for the death penalty.

Bingham County Sheriff's Office

Attorneys for 41-year-old Erik Ohlson of Jackson say it's nonsensical for Idaho law to protect a first trimester fetus under the homicide law but not under the abortion law.

Ohlson is charged with killing 39-year-old Jennifer Nalley and her unborn baby. His trial is set for July 2019 in Bingham County, Idaho.

Attorneys Jim Archibald and John Thomas made their arguments in a Nov. 9 motion to dismiss the second homicide charge. They argue the fetus wasn't old enough to have a right to life.

The Jackson Hole News & Guide reports a motions hearing is set for Dec. 7