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Bioethics and Law Forum* |
From North Wales, Pennsylvania.
| Correspondence to: Susan Kerr Bernal, JD, MPH, PhD(c) (e-mail: bernal{at}erols.com). |
| Received for publication May 13, 2003; accepted for publication May 14, 2003. |
The US Constitution and Bill of Rights establish the rights and privileges of persons under the law.1 The meaning of "persons" under the law has changed over the years, once referring only to land-owning white males and excluding women and blacks, among others. But, in the 21st century, does the definition of "person" now include fetuses and the unborn, specifically with respect to the right to life/not to be killed?
On one side of the debate are those who hold the position that life begins at conception and, as such, are consistent in their argument against abortion and for the applicability of murder charges for causing the death of a fetus. In juxtaposition, others proffer that a fetus is not a "person" under the law and, thus, not entitled to all the rights and privileges thereof. Such a position enables them to support the legality of abortion, but it also forces them, for consistency's sake, to advocate the presently unpopular position that Scott Peterson should not face murder charges for allegedly causing the death of his unborn son. So what position do the lawyers take? "It depends," of course.
In this instance, in which a pregnant women and her fetus are killed, "it depends" is not legal legerdemain. What it depends on is the state in which the crime occurred or, in other words, which state's law governs. Some states' laws bestow fetuses with certain rights, enabling its prosecutors to charge a mother with delivering drugs to a minor or a third party with murder, while others do not. California is one such state in which a third party can be charged with murder without contradicting the holding in Roe v Wade,2 which established the legality of abortion. Here's how.
A. Is It Murder?
On February 23, 1969, Robert Harrison Keeler, after discovering that his
ex-wife was pregnant by another man, confronted her, leered at her belly, and
then beat her about the face and abdomen while exclaiming, "I'm going to
stomp it out of
you."3 Mrs
Keeler "suffered substantial facial injuries, as well as, extensive
bruising of the abdomen
wall."4 A
subsequent cesarian section resulted in the stillbirth of a 5-lb, 18-in fetus
whose skull was severely fractured. A pathologist testified that the cause of
death most likely resulted from the force applied to Mrs Keeler's abdomen by
Mr Keeler. There was also medical testimony "to a reasonable degree of
medical certainty" that the fetus was viable at the time of her
death.
Mr Keeler was charged with murder, defined under Cal Pen Code 
187 as
"the unlawful killing of a human being, with malice
aforethought."5
Mr Keeler challenged the charge, arguing that a fetus, even a viable one, was
not a "human being." Ultimately, the California Supreme Court
looked to the intent of the legislators who enacted 187 of the Cal Pen
Code in 1872 to determine whether a fetus was intended to be a human being
under the law. They concluded that the intent of the legislators and earlier
common law was that a fetus was not a human being for the purposes of
187 and that, as such, a charge of murder could not be levied for
killing a fetus unless it is born alive, lives for a brief interval, and then
dies as a result of the accused's
conduct.6 The court
declared that it would exceed its judicial and constitutional limits if it
were to declare an unborn fetus to be within the murder statute. Furthermore,
assuming the court could adopt such a rule, it could only apply it
prospectively.7
Ultimately, Mr Keeler was only charged and convicted of battery.
B. Killing a Fetus Becomes a Crime in California
The following year, in response and reaction to this perceived injustice,
the California Legislature promptly amended 187 to include the killing
of a fetus in the statute's definition of murder but not in its definition of
human being. The relevant part of the amendment reads, "Murder is the
unlawful killing of a human being, or a fetus, with malice
aforethought."8
Three years after the amendment of 187, the US Supreme Court held in
the landmark case Roe v
Wade9 that the
state has no legitimate interest in protecting a fetus until it reaches
viability, at which time the state gains a "compelling interest"
in protecting the fetus, absent any threat to the health or life of the
mother. Reading between the lines, Roe in essence added "viable
fetus" to the definition of "person" for purposes of murder
statutes.10
C. Killing a Viable Fetus Becomes a Crime in California
The seminal California case to embrace not only the amended explicit
definition of murder, but an implicit one as well, was People v
Smith.11 Once
again, a pregnant woman was physically attacked by her husband, which resulted
in a miscarriage. In this case, however, the fetus was between 12 and 15 weeks
old. The trial court embracing legislative history and the analysis in
Roe held that the word "fetus" in the reenactment of
187 means not just any fetus, but "viable" fetus.
From 1976 through 1994, the term "fetus" in 187 was read
by courts as "viable fetus" with its own amorphous definition and
was deemed an essential element of the crime of murder in
California.12
However, in 1994, in People v
Davis,13 the
implicit term "viable" was dropped as an element of the crime of
murder under 187.
D. Killing Any Postembryonic Fetus Becomes a Crime in California
Maria Flores, after having been shot in the chest by a robber (Davis) and
undergoing life-saving surgery, delivered her 23- to 25-week-old fetus
stillborn as a result of her blood loss, low blood pressure, and state of
shock. The assailant was subsequently caught and charged with robbery, assault
with a firearm, and murder of a fetus during a robbery (aka felony murder).
Convicted of all charges, Davis appealed based on the definition of viability
provided by the trial court during the
charge.14 The
California Court of Appeals for the Fourth District, after an extensive review
of the statue, its legislative history, and the treatment of the issue in
other jurisdictions, as well as authoritative comments, held that not only
does the term "viable" not appear in 187, but also that it
is not a required element of the crime of fetal murder (emphasis
added).
The California Supreme Court concurred with both the appellate court's
interpretation of 187 and the reversal of the defendant's murder
conviction, because to subject Davis to its unprecedented interpretation of
187 would violate the defendant's due process and the ex post
facto clauses of the US Constitution. Thus, the law in California as of
1994 and Davis is that a person can be charged with fetal murder of a
postembryonic fetus (approximately 7 to 8 weeks after fertilization according
to the law), viability notwithstanding. The California Supreme Court in
Davis also distinguished the principles and practices of Roe
from the crime specified in Cal Pen Code 187(a) stating, "Roe v.
Wade principles are inapplicable to a statute (like section 187(a)) that
criminalizes the killing of a fetus without the mother's
consent."15
Roe is irrelevant to the issue in People v Peterson, opponents of dual-murder charges against Scott Peterson are legally misinformed, and the Modesto prosecutor filed the emotionally and legally appropriate charges. The only debate now will be among the jurors. "It depends" on them.
Footnotes
* Journal of Andrology welcomes letters to the editor
regarding "Forum" articles and other ethical and legal issues of
interest in your own practice or research. We also invite you to suggest
topics that deserve attention in future issues. Papers appearing in this
section are not considered primary research reports and are thus not subjected
to peer review. Unsolicited manuscripts are welcome, and will be reviewed and
edited by the Section Editor. All submissions should be sent to the
Journal of Andrology Editorial Office. 
1 The words "The right to life, liberty and the pursuit of
happiness," often cited as some of our most basic rights, are not found
in the US Constitution, but rather in the preamble to the US Constitution. As
such, the right to life and liberty, while rights or privileges guaranteed
under the law, are not guaranteed by these words from the preamble.
2 Roe v Wade, 410 US 113, 35 LEd2d 147, 93 SCt 705 (1973).
3 Keeler v Superior Court, 2 Cal 3d 619, 623 (1970).
5 Id; Cal Pen Code 187 (West 1872). Definition adopted from
English Common Law by the majority of the states in these United States of
America.
8 Cal Pen Code 187 (West 1970). The amendment was also meant as a
deterrent against fetal homicide; however, given that domestic violence of
both pregnant and nonpregnant women has become a national public health crisis
and that recent studies suggest the leading cause of death among pregnant
women is homicide, the intended impact of the amendment seems to be less than
desired. (See, for example, Horon IL, Cheng D. Enhanced surveillance for
pregnancy-associated mortality—Maryland, 1993-1998. JAMA.
2001;285;1455-1459.)
10 Justice Blackmun, writing for the court in Roe, divided pregnancy
into trimesters, each roughly equal to 3 months, and stated that viability is
"usually placed at about seven months (28 weeks) but may occur earlier,
even at 24 weeks."
11 People v Smith, 59 Cal App3d 751, Cal App2d Dist (1976), overruled
by People v Davis, 7 Cal 4th 797 (1994) construing the term
"fetus" in 187(a) to mean viable fetus as defined by
Roe, supra, note 2 pp.
162-164.
12 People v Smith, 188 Cal App3d 1495, Cal App 5th Dist (1987)
cert denied, Smith v California, 484 US 866 (1987), overruled by
People v Davis, 7 Cal 4th 797 (1994). In Smith, a 28- to
30-week pregnant woman and her fetus were murdered. At the trial, the failure
of the judge to charge the jury with a legal meaning of "viable"
was found to be reversible error because the trial judge had a sua
sponte duty to instruct the jury as to all the essential elements of the
charged offence. (See also People v Henderson, 225 Cal App3d 1129,
Cal App 1st Dist (1990), overruled by People v Davis, 7 Cal 4th 797
(1994) in which the court pointed out that although not specifically
referenced, decisional law interpreting 187 as limiting criminal
liability to causing the death of a viable fetus was well established ever
since Smith. In Henderson, a 30-week-old fetus died as a
result of its mother's murder.
13 People v Davis, 15 Cal App 4th 690, Cal App 4th Dist (1993),
reported in full at 7 Cal 4th 797 (1994).
14 Id. In defining the term "viable," the court used the
term "possible" for it to survive, rather than the state's
standard jury instructions, which employed the term "capable."
15 Id p. 807. Other state murder
statutes such as those of Minnesota and Illinois do not have a viability bar
and were examined by the California Supreme Court in reaching its
conclusion.
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