Is Killing an Undiscovered First-Trimester Fetus Murder in California?
The Answer Probably Is, and Should Be, "Yes"

Earlier this month, the California Supreme Court heard argument in a case raising important issues about how the crime of fetal murder is to be defined in the State of California. The Justices' questions and comments to counsel during oral argument suggest that they are inclined to rule that a defendant can be guilty of murder for killing the fetus of a woman who neither the defendant, nor the woman herself, knew was pregnant.

Though seemingly draconian, this result is both sensible and fair, upon close analysis.

In 1970, the California courts faced the question whether a viable fetus would count as a "human being" for purposes of the state's murder law.

The defendant in the case, Keeler v. Superior Court, had assaulted his ex-wife after learning that she was carrying another man's child. Upon seeing her swollen belly, he pushed her, shoved his knee into her abdomen, and struck her until she fainted, declaring to her his intention to "stomp it out of you." He succeeded in his objective and the fetus -- whom doctors attempted to deliver by a Caesarean section, at five pounds -- died in utero of the trauma sustained during the assault.

The man who brutally attacked his pregnant ex-wife was subsequently charged with both the attack on her and the murder of her baby. On a special application to arrest the proceedings, Keeler argued that the word "human being" in the homicide statute should not be understood to include a fetus that had not yet been born at its time of death.

The Supreme Court of California agreed. It concluded that, in light of the statute's legislative history, prosecuting the defendant for murder in connection with killing a fetus that had not yet been born would violate the Due Process Clause of the Fourteenth Amendment.

When I have taught the Keeler case in my criminal law course, most students who voice an opinion are unhappy with the result. Pro-life members of the class are understandably upset with the ruling. And pro-choice students point out that the choice of abortion belongs to the mother, and that taking away that choice by killing her fetus without her consent does as much -- or more -- violence to reproductive freedom as a prohibition against abortion would.

Many students agree, moreover, that a fetus has moral worth that requires that as long as the mother is prepared to sustain the physical and emotional burdens of pregnancy, others must refrain from harming her fetus. In response to the ruling in Keeler, the California legislature amended its murder statute to add "fetus" to the class of victims whose malicious killing would qualify as murder, coupled with an exception for consensual abortions.

The recent case with which I opened this column presents a different set of facts. That prosecution, currently before the California Supreme Court, is distinct from the 1970 Keeler prosecution in at least two different respects, either of which could prove significant.

First, in the current case, when defendant Harold Taylor shot his ex-girlfriend Patty Fansler to death in 1999, neither the victim nor Taylor knew that Fansler was pregnant. In killing her, the defendant accordingly did not intentionally or knowingly cause the death of anyone other than his ex-girlfriend.

Second, unlike in Keeler, where the fetus was viable and could probably have been born alive and healthy on the very day that the killing took place, Patty Fansler's fetus was nowhere near viability, at somewhere between eleven and thirteen weeks gestation -- that is, within, or just at the end of, the first trimester of pregnancy.

Upon first considering the Taylor prosecution, it might seem that the killer's ignorance about his ex-girlfriend's pregnancy should be an absolute bar to a murder conviction. Having had no idea that the fetus even existed, how could Taylor possibly be guilty of "murdering" it?

The answer is that he could not, if he had lacked any sort of murderous intention, knowledge, or recklessness. Had Taylor, for example, accidentally caused a miscarriage by slipping on a crowded subway platform and consequently knocking a pregnant woman to the ground, he could not be prosecuted for murder. Our case, however, is notably distinct from this hypothetical scenario.

The actual Harold Taylor intentionally killed his ex-girlfriend by shooting her to death. His behavior was in no way accidental, and he was in fact subsequently convicted of second-degree murder for killing Fansler. In the process of deliberately killing his intended victim, however, he unwittingly also killed her fetus.

A truer analogy, then, is not to the man who slips on a subway platform but rather to the man who shoots at a woman who is lying in her bed but whose bullet kills not only the woman but also a child concealed underneath the woman's blanket. Though the shooter did not know about the child when he aimed his gun, his actions were nonetheless intentional, and he specifically meant for those actions to result in a person's death.

When confronted with a hypothetical scenario like this one at oral argument, Harold Taylor's attorney conceded that the shooter in the example would probably be guilty of murder for both deaths. This concession logically amounts to an acknowledgment that intent with respect to one murder victim can be understood to extend to all victims killed by the same deliberately homicidal action that was directed against one of the victims, even if the presence or existence of other victims was unknown to the killer.

There does, of course, remain the distinction between a "fetus" and a "human being," as the two classes of potential homicide victims are designated in the California Code. This distinction might seem especially important in Taylor's case, where the fetus he killed was not even close to viability yet. One might ask: How could the death of such a creature -- however regrettable -- be equated with the death of a person who has already been born?

There are two answers to this question, one statutory and another moral. The statutory answer is that California law does not draw a distinction either between a "human being" and a "fetus," or between an early fetus and a late fetus, when the killer's actions fall outside of the limited exception for consensual abortion.

Clearly, in murdering his ex-girlfriend, Harold Taylor did not perform a consensual abortion by unwittingly killing her fetus as well. Thus, under the criminal law of California, the death of the three-month-old fetus in this case has the same legal import as the death of any living human being.

The moral answer is a bit different, because it must respond to disparities that the law need not take fully into account. "Viability" represents an important milestone in fetal development for purposes of abortion law, because the viable fetus can be said to have an existence "independent" of that of its mother. Simply removing the viable fetus from its mother's womb no longer automatically entails the death of the fetus, in the way that it would have earlier in pregnancy. Therefore, the right to terminate an unwanted pregnancy no longer physically necessitates a death.

Because the right to choose abortion is a right on the part of the woman to physical integrity and not a per se right to kill an unwanted fetus, the moment that physical integrity becomes compatible with fetal life, the right to maintain one no longer includes the right to terminate the other. (For similar reasons, a genetic mother has no right to terminate a surrogate mother's pregnancy, no matter how much the former wants to avoid becoming a genetic parent.) The constitutional right to abortion is simply a right to stop being pregnant, no more and no less.

Viability, then, is the time at which a person who would terminate her own pregnancy can walk away from her fetus without the fetus's having to die. If instead of the mother, therefore, it is an unlawful assailant or murderer who kills a woman's fetus, then the fetus is effectively "viable" for that assailant's purposes, as long as the mother has not obtained an abortion. In other words, a fetus whose mother is going to stay pregnant is as "viable" against the mother's assailant as the truly viable fetus is against a woman who seeks a late term abortion.

With the willing participation of the pregnant woman in sustaining the life of her fetus, it is no longer morally relevant to ask whether the fetus's lungs could breathe air if its mother were to deliver it immediately. The fetus is "viable," as against an assailant, because if left in its mother's consensual care, it will probably continue to survive. If a woman is willing to be pregnant, the fetus is thus "viable" as long as it is alive.

Harold Taylor killed a pregnant woman before she even learned of her pregnancy. He is thus in no position to invoke the possibility that she might have had an abortion if she had only lived. He eliminated that option with his gun.

So it was for good reason that the Justices on the California Supreme Court appeared, during the arguments, unconvinced that Harold Taylor's conviction for murder of a fetus should be overturned on appeal in the absence of proof that he knew of the fetus's existence.

The discussion at oral argument rested largely on the failure of the law to specify that a defendant must intend or know of the death of the fetus. But the underlying moral principles are sound as well. The death of Patty Fansler's fetus was no "accident"; it was instead the direct product of intentionally (and successfully) homicidal behavior by the defendant.

The fact that a fetus is not yet born, or even viable, speaks not to the value of that fetus but only to the consequences of terminating an unwanted pregnancy. Lack of viability -- and the location of a growing fetus inside a mother who is prepared to carry that fetus -- thus do nothing to mitigate the homicide of a sentient, living creature. California law in its current incarnation properly affirms that premise.