Feticide law seems anachronistic, or certainly contrarious in the post-Roe era.  Yet, the law continues to develop both in statutory and common law form.  Modern feticide law differs from the abortion cases in that the issue of a woman's choice is not in play here.  These cases deal with an abortion or killing of a fetus by a third party.  Beyond charges of assault upon the woman, there is, in most states, a separate crime, often named "feticide," with punishments ranging from a few months to life in prison.  Feticide, as a crime, is pointed to by those with an anti-abortion stance as an indicum of fetal personhood.

   The classic case, read by every law student, is Keeler v. Superior Court of Amador County, 87 Cal.Rptr. 481, 470 P.2d 617 (1970). In that case, a husband, who's wife was c.35 weeks pregnant with another man's child, confronted her saying "I'm going to stomp it out of you," and kneed his wife in the abdomen. An emergency Cesarean produced a stillborn child with a fractured skull.  Keeler was charged with murder under §187 which used the common law definition: "Murder is the unlawful killing of a human being, with malice aforethought."  The California Supreme Court in a 5-2 decision held that §187's term "human being" was not to apply to a child until it was born alive.   The crime committed up until that time would be classed as feticide, which was not a crime under California law.

   A little more than half the states have some sort of feticide law.   Some have a special feticide statute, while others, via statute or court decision, subsume it into the crime of manslaughter or murder.

   Section 609.266-2691 of the Minnesota Code is an example of the modern (adopted 1986) feticide statute. This statute was reviewed in State v. Merrill, 450 N.W.2d 318 (1990).

   Similarly, California amended it's Penal Law §187 in the wake of the Keeler decision, above. This statue was held by the California Supreme Court (6-1, Mosk dissenting) to apply from seven weeks gestation on in People v. Davis, 872 P.2d 591 (Cal. 1994).

   Both these statutes make killing a fetus (or an embryo in the case of §609) murder with life imprisonment as a penalty. Minnesota's statute is perhaps the most remarkable in term's of its comprehensiveness, applying from conception and having gradations for degrees of murder, manslaughter, and assault.  

   Some states, by court decision, have come to a conclusion opposite that of Keeler, above. The Supreme Court of Massachusetts (4-3) in Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324, (1984); the South Carolina Supreme Court (5-0) in State v. Horne, 319 S.E.2d 703 (S.C. 1984); and Oklahoma's Court of Criminal Appeals (7-0) in Hughes v. State, 868 P.2d 730 (Okl.Cr. 1994), all held that generally-worded homicide statutes applied to viable fetuses. Massachusetts even left the open the possibility for non-viable fetuses as well.   After Cass in 1984, the Massachusetts Supreme Court (5-0), went on to contradict Keeler even more directly by holding that a viable fetus was a "human being" for the purposes of common law murder in Commonwealth v. Lawrence, 404 Mass. 378, 536 N.E.2d 571 (1989).

   [This annotation offers a particularly thorough survey and analysis of the state of feticide law in the U.S. (i.e., in cases where it is considered a species of homicide)]

   Still other states, like New York, have no such laws.  However, sometimes there is an overlap between criminal abortion statutes and feticide--so in New York, for example, if a miscarriage is intentionally caused against a woman's will, it might be a criminal abortion under the state's Penal Law Art. 125 since the act would fail to meet the exceptions in that law for elective or therapeutic abortions.

  A new twist on the feticide concept has now brought the issue full circle.   In Whitner v. State, No. 2446 (S.C. Oct 27,1997) the Supreme Court of South Carolina held that a viable fetus was a "person" for the purposes of the state's child neglect statute.  In doing so, the court upheld a woman's conviction for criminal child neglect for ingesting crack cocaine while pregnant in her third term, thus causing her child to be born with cocaine products in its system.  This blurs the tidy distinction between maternal-authorized actions and non-maternal-authorized actions.  The result is a new series of questions about the nature and extent of society's interest in fetal life.  However, a pragmatic appraisal would suggest that maternal acts that represent a "reproductive choice" will be protected by the abortion right of Roe and Casey, but maternal acts that harm a fetus that she nonetheless intends to carry to term might be punished in the name of society's prospective interest in the health of the child to be born.  Inasmuch as this is applied to a viable fetus, the distinction seems quite workable, since the state can proscribe elective abortions anyway.  But what about a fetus at 18 weeks?  Say a mother of such a fetus, who could legally abort, but was still intent on bearing the child, were to knowingly ingest drugs that cause severe harm to her child who is later born.  Could she be punished?  If so, should the government be able to stop her from taking the drug in the first place?  What if she decides to have the abortion in an attempt to avoid criminal liability--is what she did before still a crime?  Or would the child need to be born deformed first?  Can the woman somehow "un-commit" the crime by having a legal abortion?  Or does the damage that society fears have to actually be realized before there is a crime?   What if she has the child, but it is healthy?  Did she "endanger" the child nonetheless?  What about so-called "anticipatory offenses" like "attempted" endangerment?

   Obviously, this is going to produce some very interesting law in the not-too-distant future.