A fetus is not a human being under state law, the Minnesota Supreme Court said yesterday, and a man accused of killing an 8 1/2-month-old fetus in an automobile accident cannot be charged in the death.

In a 6-to-1 ruling, the court said no state statute addresses whether a fetus is a human being and that the legislature has never precisely defined the term "human being," even though it has been used in homicide statutes since territorial days.

John Wodele, executive assistant to County Attorney Tom Foley, said no appeal will be filed because the issue does not involve a constitutional question. Whether to permit criminal prosecution involving a viable fetus is one for the legislature to make, the opinion said.

State Rep. Terry Dempsey said he will seek a change in the law when the legislature convenes in February.

Courts in 23 other states have ruled that fetuses must be "born alive" before being considered a human being, said American Civil Liberties Union spokeswoman Nan Hunter, while at least 15 states have laws that make it a crime to intentionally or negligently interfere with a pregnancy. She said the ACLU urges civil litigation instead of criminal penalties.

The Minnesota case stems from a 1984 traffic accident in which a car driven by John Soto of St. Paul collided with a vehicle driven by Jannet Anne Johnson, who suffered a fractured pelvis and broken leg.

Although the heartbeat of the 8 1/2-month-old fetus was normal when Johnson was admitted to the hospital, its heartbeat could not be detected a few hours later and a Caesarean section resulted in a stillbirth. An autopsy showed that the fetus died of head injuries.