I'm somewhat surprised that there were no amici in this case given the controversial nature of the principal appellate issue. Maybe no one was interested; more likely, none of the counsel got the word out.
In any event, Justice Scotland holds here that the defendant can be convicted of murder (of a fetus) under Penal Code 187(a) (the general murder statute) even if (1) the fetus was not viable (here, was 16-17 weeks old), (2) the defendant did not know the fetus existed, and (3) the fetus would have perished in utero even without the defendant's conduct. The California Supreme Court has already held that (1) and (2) are irrelevant. This case adds (3).
I won't get too heavily into the debate surrounding the legitimacy of murder charges based upon the death of a fetus. That's an incredibly controversial topic -- there are dozens of law review articles devoted entirely to this issue. I'm also sure that people both will and should debate at length whether the killing of a fetus that will never be born alive (due to preexisting medical complications) properly justifies a criminal conviction for murder, including (1) whether the statute properly covers such conduct, and (2) whether such punishment is constitutionally permissible (or, in a particular case, perhaps constitutionally excessive).
I just wanted to make one brief point. What's the principled dividing line here? Justice Scotland holds that it is still murder because even a terminal fetus that will never be born alive is still (definitionally) a fetus. True enough. But does this mean that terminating a fetus with anencephaly -- a medical condition in which the fetus lacks a brain -- also counts as murder? (This isn't that uncommon; around 1 in 60,000 pregnancies.) What about the -- even rarer -- case of acardia, where the fetus doesn't have a heart? The fetus is still a "fetus" in both of these cases, after all. Does this still count? What about a fetus that is already "dead"? Still murder? (And, parenthetically, is it still constitutionally permissible to punish the termination of such fetuses as severely as murder of a person who has already been born, perhaps even imposing the death penalty?)
The Court of Appeal places its exclusive emphasis on the definition of "fetus", which it correctly notes is a fairly broad term (which, according to the California Supreme Court, pretty much covers everything after seven or eight weeks). But the statute also requires the "killing" of a fetus, and Justice Scotland doesn't once talk about that term. Presumably "killing" requires that the fetus already be "alive", and what the latter term entials is -- it seems to me -- the core dispute. Would one really would say, for example, that a fetus that is already dead is "alive" and hence capable of being "killed"? What about fetuses with severe anencephaly; are they "alive"? When the fetus isn't viable and isn't ever going to be viable, what exactly counts as being alive? What does a "living" entity that is capable of being "killed" entail? Is having a single living cell enough, or do we require more -- and, if so, precisely what is the "more"?
Reasonable minds can indeed disagree about this issue; obviously, some people are going to argue that even a zygote is "alive", while others will argue that nonviable fetuses aren't "alive" (because they don't actually entail potential life) and hence capable of being killed. I don't have any original insight as to the proper resolution of that issue. But it does seem to me that this is at least one of the points that the Court of Appeals needed to discuss, rather than focusing exclusively on the mere definition of a "fetus" under the statutory definition of murder.
