In 1970, the California Supreme Court’s decision in Keeler v. Superior Court sent shockwaves through the legal community and the public alike. The court ruled that a viable fetus was not considered a “human being” under California’s murder statute, Penal Code § 187. This ruling not only highlighted the limitations of judicial interpretation but also prompted swift legislative action to amend the statute. This article explores the background, legal reasoning, and legislative response to the Keeler decision.
The case began with a tragic incident involving Robert Harrison Keeler and his ex-wife, Teresa Keeler. In February 1969, Robert Keeler assaulted Teresa, who was pregnant by another man, causing the death of her viable fetus. Keeler was charged with murder under California Penal Code § 187, which defines murder as “the unlawful killing of a human being with malice aforethought.”
The central question in Keeler v. Superior Court was whether a viable fetus could be classified as a “human being” within the meaning of the murder statute. In a majority opinion written by Justice Stanley Mosk, the court concluded that the Legislature did not intend for the term “human being” to include fetuses when the statute was enacted in 1872.
The court’s analysis began with an examination of the common law understanding of “human being” at the time the statute was enacted. Historically, common law did not recognize a fetus as a separate legal entity for the purposes of homicide. Influential legal authorities, such as Sir Edward Coke and William Blackstone, maintained that a person must be born alive to be considered a victim of homicide. This was, of course, before prenatal imaging, modern abortion and surgeries gave insight into what was happening in the womb.
Justice Mosk claimed that the Legislature’s intent in 1872 was to align with the common law interpretation. The murder statute, taken verbatim from the Crimes and Punishments Act of 1850, did not include any language suggesting that fetuses were to be considered “human beings” for the purposes of the law. The court inferred that the Legislature, by not amending the statute to include fetuses, actually intended to exclude them from the definition of murder.
The court also addressed the constitutional principle of due process, particularly the aspect of fair warning. Extending the definition of “human being” to include viable fetuses would constitute an unforeseeable judicial enlargement of the statute, effectively criminalizing conduct that was not previously defined as murder. This would violate the principle of fair warning, a core component of due process, which requires laws to be clear and not applied retroactively.
The California legislature reacted swiftly to the Keeler decision. On the very next working day after the decision, the majority floor leader of the Assembly publicly denounced the ruling. Despite being more than halfway through the legislative session and past the deadline for introducing new bills, the legislature took extraordinary steps to address the issue quickly.
Assembly Bill No. 816, originally on a different subject, was repurposed. Its original text was deleted and replaced with the new version of Section 187. The bill went through multiple amendments and committee hearings in both houses, passing in just eight weeks. The amended statute now reads: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”The primary intent of this amendment was to directly address the situation in the Keeler case, making it possible to charge individuals like Robert Keeler with murder for killing a fetus.
The Scott Peterson case is a modern example of the application of this rule. Peterson was charged with special circumstances double homicide for killing both his pregnant wife, Laci, and their unborn child in 2002 and was sentenced to life imprisonment. Had Laci Peterson intended to abort the same child at the same gestational stage, the state of California may have even paid for the procedure.
Keeler v. Superior Court remains a landmark case in California’s legal history, and the California legislature’s response to amend Penal Code § 187 clarified the definition of murder, bifurcating the rights of those destined for abortion from those destined to live.
