Assault Causing Miscarriage Can Be Murder Case


In a landmark ruling, the California Supreme Court held Monday that a person can be convicted of murder for causing the death of a fetus that could have been legally aborted.

The 6-to-1 decision will allow prosecutors to charge a defendant with murder for causing a pregnant woman to miscarry, even if her fetus had been only seven to eight weeks old and incapable of surviving outside her womb.

Although the case will not directly affect abortion rights, which are protected by constitutional privacy guarantees, activists on both sides of the abortion debate watched it closely because it posed the moral issue of when life begins.

The court’s decision gives California arguably the toughest fetal murder law in the nation. It means that a robber could be sentenced to death if in the course of his crime he injured a pregnant woman and caused her to miscarry, even if he was unaware that the woman was pregnant.


Prosecutors also may charge a defendant with multiple murder--a death penalty offense--for killing a pregnant woman whose fetus could not have survived outside her womb.

“The third-party killing of a fetus with malice aforethought is murder . . . as long as the state can show that the fetus has progressed beyond the embryonic stage of seven to eight weeks,” Chief Justice Malcolm Lucas wrote for the majority.

Until now most California courts have interpreted state law to provide for murder charges only in the killing of a fetus capable of surviving outside the mother, generally not earlier than about 25 weeks. Under Roe vs. Wade, the U.S. Supreme Court’s benchmark ruling on abortion, a woman is free to abort her fetus until it becomes viable outside the womb.

Anti-abortion forces hailed the California ruling as confirmation that even a young fetus is a person. They said the decision underscored the absurdity of allowing a mother to abort a fetus whose killing would constitute murder if done by a third party.


“This is a victory of sorts because it is giving the identity of humanity to an unborn child,” said Anne Kindt, executive director of the Right to Life League of Southern California. “This type of ruling says, hey, what is in the womb is a human being, a baby.”

Abortion rights activists generally are uncomfortable with laws that treat the fetus as a victim independent of the mother.

Abby Leibman, executive director of California Woman’s Law Center, said the California Supreme Court has moved the law in a “very troubling direction” by paving the way for regulating the behavior of pregnant women.

If the fetus is considered a person, she said, lawmakers may eventually try to punish a pregnant woman for behavior that could injure her fetus.

“If I smoke while pregnant,” she asked rhetorically, “am I going to be subject to criminal sanctions?”

Justice Stanley Mosk, in a lengthy and graphic dissent, complained that the court has defined as murder the killing of a creature “roughly the size of a peanut,” with webbed hands and feet and a vestigial tail.

“If this tiny creature is examined under a magnifying glass,” he wrote, “its appearance remains less than human. Its bulbous head takes up almost half of its body and is bent sharply downward; its eye sockets are widely spaced; its pug-like nostrils open forward.”

Under the majority’s decision, Mosk said, an unarmed shoplifter who accidentally knocks down a woman who is seven weeks pregnant, causing her to miscarry, could face death or life in prison without the possibility of parole.


Mosk also said that 15% to 20% of all pregnancies end in spontaneous abortion at seven weeks, making it difficult for courts to determine whether an assault caused the miscarriage.

The court ruled in a San Diego case in which a 20-year-old man was convicted of murder for causing a woman to miscarry during a March, 1991, robbery.

Maria Flores, then 21, had just cashed a $378 welfare check when Robert Davis approached her and demanded her money. Clutching her toddler in one arm, Flores refused to give up her cash, and Davis fired a bullet into her chest.

The pregnant woman crumpled to the ground, rolling over and over in a vain attempt to grab the money. “Dinero, " a witness heard her whimper.

Flores survived the shooting but her male fetus, not yet six months old, was stillborn. It died of loss of blood to the placenta and asphyxiation caused by Flores’ loss of blood, low blood pressure and shock.

During Davis’ trial, fetal experts testified that the fetus was 22 to 25 weeks old. They disagreed over whether it could have survived outside the womb, but none put the chance of survival greater than 50%.

Superior Court Judge Michael Wellington, over the objections of the defense, told the jury 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.”

The standard jury instruction defined a viable fetus as one probably capable of living outside the womb, a definition that would have been more favorable to Davis.


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

Davis appealed the murder conviction. The 4th District Court of Appeal went beyond viability instructions, ruling that any fetus could be murdered if it had progressed beyond the embryonic stage. But the court also held that the ruling could not be applied retroactively and reversed Davis’ murder conviction.

The California high court agreed that the new ruling cannot be applied retroactively to Davis. Justices Marvin Baxter and Ronald George dissented, contending that the jury instructions in the case were grounded in two appellate decisions.

After the Court of Appeal ruling, the Los Angeles district attorney charged defendants with fetal murder in two cases in which the fetus was not yet viable. In one case, the defendant pleaded guilty in a plea bargain and was sentenced to life without the possibility of parole. In the other, prosecutors dropped the fetal murder charge because they could not prove that the fetus was alive at the time its mother was shot.

Deputy San Diego Public Defender Jeffrey Thoma, who represented Davis, said he looked forward to telling him “he may have his life back.” Davis was sentenced to life without parole for the murder, assault and robbery. Without the murder conviction, he faces about 11 years, Thoma said.

He noted that California is now the only state in the country where someone can be sentenced to death for killing a fetus incapable of surviving outside the womb.

Deputy Atty. Gen. Pamela Klahn, who represented the state in the case, stressed that the ruling would not affect a woman’s right to an abortion. She also said she did not know whether prosecutors would attempt to retry Davis on the murder charges under the previous court rulings on viability.

“This is about a third-party non-consensual killing of a fetus,” Klahn said. “Roe’s principles apply only in the narrow context of the abortion decision.”

* COURT RULING: Imminent danger defense, used by Menendezes, is upheld. A24