Keeler v. Superior Court, 2 Cal. 3d 619 (1970)

Case Name: Keeler v. Superior Court
Citation: 2 Cal. 3d 619 (1970)

Facts: Keeler kneed his wife in the stomach to purposefully kill her fetus.

Issue: Whether the fetus, which would have been viable outside the womb, can be considered a “human being” for purposes of the California Penal Code.

Defendant’s argument: A fetus does not fall within the meaning of a “human being” when looking at legislative history. Furthermore:
1) The power to define a crime is a legislative function (the court exercised judicial enlargement which is a violation of the separation of powers), and
2) Due Process requires a fair warning and the government cannot enact an ex post facto law
– It is “unforeseeable” to consider a fetus a human being

State’s argument: The fetus was viable outside of the womb and should be considered a “human being” and it is within the judicial interpretation power to state this.

Holding: The judicial enlargement of the criminal statute was not foreseeable by the defendant and “its adoption at this time would deny him due process of law.” We require more specificity when you are at risk of losing your personal liberty.

Dissent: We should interpret the term “human being” with today’s medical science. The legislature used a broad term, “human being,” (as opposed to “one who has been born alive”). Also, the fact that California courts have not had this same question does not render the judgment “unforeseeable.”


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