Bioethics and Law Forum*: Murder in Modesto: A Viable Argument

Patricia Ireland, the former National Organization of Women (NOW) president, and the upcoming CEO of the YWCA, NOW, and other organizations have recently blanketed the media with the position that Scott Peterson, of Modesto, Calif, should be charged with only 1 count of murder for allegedly killing his pregnant wife, Laci Rocha Peterson, and causing the death of their unborn child. The state of California, however, has charged Scott Peterson with 2 counts of first-degree murder and is seeking the death penalty. Are Patricia Ireland and others trying to mire a murder case in the abortion debate to keep the government from sliding down the proverbial slippery slope to classifying a fetus as a person under the law with all the rights and privileges such affords? Can a charge of murder in the Peterson case be reconciled with the legal right to an abortion? Has the Modesto prosecutor made an emotionally appealing but legally inaccurate double-murder charge? 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. 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. 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 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. 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.

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