New Rights for Fetuses Touch Off Legal Debate : Courts: Man was convicted of murder for killing a fetus so young that it could be legally aborted.

Maria Flores had just cashed her $378 welfare check when a stranger approached her and demanded money. Clutching her toddler in one arm, Flores defiantly refused to give up her cash. The man fired a bullet into her chest.

She crumbled to the ground, rolling over and over in a vain attempt to grab the money. “Dinero,” a witness heard her whimper. Her 20-month-old son hovered over his blood-soaked mother, screaming wildly.

The early afternoon attack was like many others in this run-down part of southeastern San Diego, and it probably would have been long forgotten by now if it were not for the fact that Flores was pregnant.

She survived the shooting, but her not-yet 6-month-old male fetus was stillborn. Her assailant was sentenced to life without parole for murdering the fetus.

The case has ignited a widespread legal debate--and a California Supreme Court review--over whether someone can be convicted of murder and face execution for killing a fetus so young that it could not live on its own and could be legally aborted.

Legal scholars say the case represents a trend in jurisprudence to give a fetus the protection of a person, a move triggered in part by advances in technology that make it possible to see and study the fetus long before it can live outside its mother.

“The fetus is now beginning to be seen more as a member of the society,” said Lori Andrews, professor of law at Chicago-Kent College of Law.

Activists on both sides of the abortion debate are watching the California case closely. Anti-abortion forces believe it shows the absurdity of treating a third-party killing of a fetus differently from an abortion.

Abortion rights activists, on the other side, are trying to underscore the difference between a woman choosing to terminate her pregnancy and an assailant taking away her choice to bear a child.

Flores, 24, wanted her baby. The doctors who worked to save her life at UC San Diego Medical Center realized that she was pregnant and consulted obstetricians.

They believed that the fetus, because of its extreme prematurity, probably would not survive outside her womb and decided not to take it by Cesarean section. The fetus, delivered stillborn the next day, weighed under two pounds.

The pathologist who performed the autopsy said the fetus died of a loss of blood to the placenta and asphyxiation caused by Flores’ loss of blood, low blood pressure and shock. The fetus had not been otherwise injured.

Robert Davis, an unemployed 20-year-old, was arrested. Prosecutors charged him with first degree murder of a fetus, potentially a capital offense because it was committed during a robbery. Davis also was charged with robbery and the attempted murder of Flores.

He could be charged with fetus murder under a state law enacted 20 years ago in response to a savage beating. An Amador County man, Robert Keeler, had attacked his divorced wife, who was seven months pregnant. Vowing to kill her unborn child, he stomped repeatedly on her stomach, fracturing the head of the five-pound baby girl in her womb.

Ruling 5 to 2 in that case, the California Supreme Court held that the killing of a viable, unborn child was not murder under state law because a fetus could not be considered a human being.

The Legislature quickly changed the law, defining murder as the unlawful killing of a “human being or a fetus.” Appellate courts later held that the law could be applied only to a viable fetus--one capable of surviving outside the womb.

In the Davis trial, fetal experts testified that the Flores fetus was 22 to 25 weeks old. Some doctors thought he would have been able to survive birth; others thought his chances were minute. Nobody put the chance of survival at 50% or greater.

One of the attending doctors said during the preliminary hearing that Flores could have legally aborted the fetus at the time she was shot.

The case turned on Superior Court Judge Michael Wellington’s instructions to the jury. Over the objections of the defense, the judge said that “a fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth although with artificial medical aid.”

That interpretation of the law was more detrimental to Davis than the standard jury instruction, which defines a viable fetus as one normally capable of living outside the uterus.

The jury convicted Davis of murder of a fetus, but indicated it was not convinced that Davis knew Flores was pregnant when he shot her. She stood at 5 feet, 1 inch and, when she was not pregnant, weighed 192 pounds.

Prosecutors did not seek the death penalty. “If we felt without question that he knew she was pregnant and fired directly in the area of the fetus, that would be a different question,” San Diego Deputy Dist. Atty. Peter Cross said.

Davis appealed the murder conviction, with mixed results. “In order for a fetus to be a subject of a murder statute,” the 4th District Court of Appeal ruled last May, “it need only be shown that it has progressed beyond the embryonic stage of seven to eight weeks.”

But the court also held that its ruling could not be applied retroactively to Davis and overturned his conviction. His jury, the court said, should have been given the standard instruction that viability begins when the fetus is normally capable of surviving.

The appeal court’s ruling on viability overjoyed anti-abortion activists, who took it as a contradiction of Roe vs. Wade, the landmark 1973 U.S. Supreme Court decision establishing abortion as a woman’s constitutional right.

“It points out the absurdity of the position that mommy can kill the fetus, but nobody else can,” said James Lynch Jr., a Sacramento attorney affiliated with anti-abortion groups. Lynch wants to file a friend of the court brief in the case.

Some abortion rights activists were nervous about the implications and called Deputy Atty. Gen. Pamela K. Klahn, who will argue before the California Supreme Court to reinstate Davis’s conviction. One of the calls came from an attorney with the American Civil Liberties Union.

“I assured her I was pro-choice,” Klahn said, “and I wasn’t going to do anything that was going to undermine Roe vs. Wade because this case doesn’t even involve abortion.”

Indeed, the Court of Appeal held that Roe does not apply to the killing of a fetus by a third party. Roe protects the mother’s right to privacy and therefore to an abortion. When the state’s interest in protecting a fetus does not conflict with a mother’s right to privacy, the state’s interest should prevail, the court held.

“Because of the abortion debate,” Harvard law professor Martha Field said, “everybody has gotten interested in the status of the fetus. I know the anti-abortion lobby likes to have as many things written into the law about fetal rights as possible, and the pro-choice people tend against those things. But I think it’s partly symbolic.”

No one believes that the case will lead to new abortion restrictions in the short term. But the implications concern some abortion rights groups.

“Our position is this is a terrible crime,” said Dara Klassel, director of legal affairs for Planned Parenthood Federation of America, “but it is a crime against the woman. And we should treat it as aggravated assault against the woman.”

Ann Brick, staff attorney for the ACLU of Northern California, is considering filing a brief in the case seeking to underscore that its results do not affect abortion rights. She said the ACLU generally opposes fetal murder statutes.

“You shouldn’t be viewing the fetus as a separate victim,” Brick said.

But the nation’s courts and legislatures over the last 10 years have been granting the fetus increasing rights, said law professor Andrews.

“Once you determine the fetus is a person or has certain rights,” she said, “it makes it less possible to not see what women are doing as problematic.”

She said these laws are creating a legal and moral climate that will foster increased attempts to hold women responsible for harm they cause their unborn babies through such actions as smoking or drinking in pregnancy.

“There are obvious conflicts in holding that fetuses have rights in some circumstances but not in others,” the professor said.

New attitudes toward the fetus also are changing civil law. “Previously, harm to a fetus was not actionable because it was considered just part of the mother,” Andrews said. Now, a child can collect damages for injuries it suffered in its mother’s womb.

Andrews called it a “troubling trend” that has stemmed from an effective anti-abortion lobby and new medical technology that makes it possible for people to see a fetus and even an embryo.

At its extreme, she said, is a recent law in Louisiana that makes it illegal for parents to terminate an embryo in a petri dish. “You could see where that would run into problems: A woman could have 12 eggs fertilized, and clearly it is not good for a woman . . . to have all 12 implanted.”

Twenty-one states now criminalize the third-party killing of a fetus in a non-abortion setting, and seven states carry penalties for such killings of an embryo. In Utah, someone who kills any “unborn child” can be executed by firing squad or fatal injection.

USC law professor Michael H. Shapiro said such laws do not conflict with U.S. Supreme Court rulings on abortion as long as they do not impose “a serious burden” on women’s rights to terminate their pregnancies.

“The consensus among scholars,” Shapiro said, “is that the state is free, absent other constraints, to criminalize the killing of a fetus or a non-viable fetus.”

Jeffrey E. Thoma, a deputy public defender here who defended Davis, argues that California would become “the toughest in the country on the killing of the fetus” if the appellate court ruling is upheld.

“I don’t believe murder can occur until life occurs,” Thoma said. “It is at the point that viability occurs that you have a life, and then murder becomes possible, and it also becomes illegal to have an abortion.”

If viability is no longer a required element, the law will have unintended results, he maintained.

He cited the hypothetical example of a $2 robbery where the robber runs over the toe of a woman whose embryo has just become a fetus--although she does not yet know she is pregnant--and the fetus dies as result of shock to the mother’s system.

“There you have the death penalty for the individual involved in the robbery,” Thoma said.

Deputy Atty. Gen. Klahn said there have probably been thousands of cases of fetal murder that prosecutors have not charged over the years because the fetuses were not viable.

“So this is going to have a real significant impact on the number of people who lose their babies because criminals assault them,” she said.

Following the Court of Appeal ruling in May, the Los Angeles County district attorney’s office decided to charge five alleged gang members with murder for the Panorama City shooting of a pregnant young woman who subsequently miscarried. The fetus was 3 to 4 months old.

The California Supreme Court agreed Aug. 25 to rule on the Davis case. Thoma expects the court to hold oral arguments between February and May, and a decision would be handed down within 90 days after the hearing.

Prosecutor Cross agrees that if Davis were to be retried under the old, fetal murder standard, he probably would escape punishment for the death of the fetus.

“Mrs. Flores doesn’t have that child today,” Cross said, “and she wanted that child.”