San Diego Law Review


Louis E. Boyle

Library of Congress Authority File


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Robert Keeler and his wife obtained an interlocutory decree of divorce in September 1968. In February 1969, after learning that his wife was pregnant by another man, Mr. Keeler intercepted her on a mountain road and, with the words, "I'm going to stomp it out of you," assaulted her, delivering blows to the face and abdomen. A Caesarean section and examination in utero revealed the fetus had died of a severely fractured skull and resultant hemorrhaging. Fetal movements had been observed prior to the assault. The fetus was judged to have been in approximately its thirty-fifth week of gestation. An information was filed charging Mr. Keeler with murder. A petition for a writ of prohibition to prevent his prosecution for that crime was denied by the California Court of Appeal for the Third District. On Appeal to the California Supreme Court, held, writ granted: a fetus neither born nor in the process of being born is not a "human being" within the meaning of those words as they appear in the homicide statute. Keeler v. Superior Court, 2 Cal. 3d, 619, 470 P.2d 622, 87 Cal. Rptr. 481 (1970). Both the act in Keeler and the act in any abortion are directed toward the intentional destruction of a fetus. While the Keeler type act is morally reprehensible, abortion is being increasingly accepted as a routine, legal, procedure. It is the writer's contention that this dichotomy must be squarely faced before attempting a legislative remedy to the immediate Keeler problem. This Comment will examine the basis for the Keeler decision, the abortion dilemma which must be recognized if legislative reaction to the case is to be successful, and some considerations for the future.

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