Laws on fetal slaying are complex, evolving
By Michael Doyle -- Bee Washington Bureau
Published 2:15 a.m. PDT Thursday, April 24, 2003
WASHINGTON -- Baby Girl Vogt died years ago on a California mountain road, a ghastly step in the legal path that permits Scott Peterson to be charged with murdering his unborn son.

In a country where legal abortions are commonplace, fetal protections can only be described as complex. These complexities and conflicts are highlighted when, as in the Peterson case, police charge someone with murdering the not-yet-born.

"It helps bring into focus what the argument is about," Douglas Johnson, legislative director of the National Right to Life Committee, said of the Peterson case Wednesday. "And the argument is, do these types of crimes have one victim or two?"

In fact, the double-murder charges lodged against Peterson showcase a legal evolution that's still under way.

Twenty-six states, including California, explicitly permit someone to be charged with killing a fetus. The states differ in their definitions, though. Fourteen, like Utah and Missouri, cover the fetus at any state of development; the other 12, including California, cover only those fetuses that have reached a certain level of development.

Oklahoma law, for instance, covers any "unborn quick child," or viable fetus, while California protects a fetus that has passed the "embryonic stage."

This is generally pegged at seven or eight weeks. Laci Peterson was about eight months pregnant when she was killed.

In Congress, legislation backed by nine conservative Republican senators would likewise permit federal homicide or manslaughter charges against someone who kills any fetus while committing another violent federal crime. Abortions would be exempted.

"The fact is that it is just plain wrong that our federal government does absolutely nothing to criminalize violent acts against unborn children," Sen. Mike DeWine, R-Ohio, said on introducing the bill. "We cannot allow criminals to get away with murder."

DeWine cited an Ohio-based Air Force enlisted man who beat his pregnant wife and thereby killed the 8-month-old fetus she was carrying. Military prosecutors were initially unable, under existing military and federal law, to charge the man with murder. Ultimately, they employed Ohio state law to accomplish the same purpose.

The House of Representatives in 2001 approved similar legislation by a 252-172 vote, but the issue has become so entangled in the larger abortion rights debate that the measure's political prospects remain unclear.

The Peterson murder case makes the issue even trickier, for some.

A spokeswoman for the National Organization for Women said Wednesday that the normally outspoken group would not discuss the legislation out of respect for the Peterson family. In the past, though, the organization has vigorously fought unborn-victim statutes.

In California's case, the law has its roots in the tragedy involving a 5-pound, 18-inch-long fetus dubbed Baby Girl Vogt.

Teresa Keeler, the mother, was living in Stockton with a man named Ernest Vogt. In February 1969, her former husband, Robert Harrison Keeler, encountered her on a narrow road in Amador County and became enraged upon discovering her pregnancy.

"He said, 'You sure are (pregnant). I'm going to stomp it out of you,' " according to documents from the California Supreme Court. "He pushed her against the car, shoved his knee into her abdomen, and struck her in the face with several blows."

The fetus was delivered stillborn at a Stockton hospital.

Physicians testified they were reasonably certain that the fetus had developed to the point of viability, and Keeler's ex-husband was charged with murder.

But as Associate Justice Stanley Mosk noted in an influential opinion, Keeler's husband could be guilty of murder only if a fetus was "a human being within the meaning of the statute." Mosk further determined the California lawmakers who wrote the state's first statute against murder, in 1850, didn't intend to protect a fetus.

In response, California legislators that same year updated the law to cover the killing of a fetus.

A generation later, Mosk had another opportunity on the California Supreme Court to shape this issue. This time, though, he was on the losing end as an expansive interpretation of the 1970 California law was upheld.

This 1994 court decision involved Robert A. Davis, a would-be robber who shot a San Diego woman who was about 24 weeks pregnant. The woman lived, but the fetus died, and Davis was charged with murder.

Davis challenged his conviction, noting that California courts had previously insisted on viability as an element of the crime.

Davis also leaned for support on the 1973 Supreme Court case Roe v. Wade, which permits abortion on the basis of a woman's right to privacy, but the California Supreme Court rejected any comparison between the two.

"When the mother's privacy interests are not at stake, the Legislature may determine whether, and at what point, it should protect life inside a mother's womb from homicide," then-Chief Justice Malcolm Lucas wrote for the majority.