BY YESENIA AMARO, January 6, 2022
KINGS COUNTY SHERIFF’S OFFICE
California Attorney General Rob Bonta on Thursday sent a loud and clear message to law enforcement across the state: Pregnant women cannot be charged for murder in connection to a pregnancy loss.
Bonta, during an online news conference, announced the issuance of a legal alert — the first of its kind — designed to provide a “proper interpretation” of the state’s Penal Code 187. Pregnant women, he said, cannot be charged under the law for the loss of a pregnancy.
A legal alert is different from a legal opinion, and is meant to provide “rapid input” from the attorney general for police chiefs, district attorneys and sheriffs throughout the state.
“We want to make it clear that there’s no legal basis for this theory,” he told reporters. “The language is very clear. California law does not criminalize pregnancy loss.”
Former Attorney General Xavier Becerra, now secretary of the U.S. Department of Health and Human Services, had also been vocal about the issue. Much controversy emerged after two Kings County women were charged with murder under Penal Code 187 involving their stillbirths.
KINGS COUNTY MURDER CASES
The cases were that of Chelsea Becker and Adora Perez. Both women used drugs during their pregnancies.
In May, murder charges were dismissed against Becker after a long legal battle that stretched over 19 months, of which she spent 16 of them in pre-trial detention.
Becker was charged with murder after her son, Zachariah Joseph Campos, died in her womb on Sept. 10, 2019. Her bail was initially set at $5 million, and was later reduced to $2 million in February 2020.
Perez’s case ended in a voluntary manslaughter plea. Soon after, she filed a motion to withdraw her plea. In 2018, Perez was sentenced to the “upper term” of 11 years in prison because Kings County Superior Court Judge Robert S. Burns believed that at her age she could still get pregnant and use drugs, according to records.
One of Becker’s attorneys told The Bee in 2021 that she was held in pretrial detention for the same reason — to prevent her from getting “pregnant again.” Burns also oversaw Becker’s case.
Becker was also represented by attorneys at the National Advocates for Pregnant Women.
OTHER COUNTIES CONSIDERING PROSECUTION
Bonta reemphasized that the fetus reference was added to the law in 1970, but the statute doesn’t include “a pregnant person’s own actions that might result in a miscarriage or stillbirth.” The addition was to criminalize “violence done to a pregnant person.”
The legal alert is a notice for the state in case “there are developments in other counties” to try to prosecute women in a similar way as Becker and Perez, he said.
The law does allow for charges to be brought forth to a third party who harms a pregnant woman, resulting in a pregnancy loss.
“Ensuring proper interpretation of the penal code is critical,” he said.
Pregnancy losses, he said, are tragically common, with one in 10 pregnancies ending in the first trimester.
“If charges and prosecutions like those against Ms. Becker and Ms. Perez are repeated, pregnant individuals may avoid medical care out of fear …of prosecution across California,” he said. “The DOJ won’t let this incorrect interpretation of the law stand.”
ROE V. WADE IMPACT
Samantha Lee, a staff attorney with National Advocates for Pregnant Women, said her organization supports Bonta’s legal alert. She said as people around the country simply wait for a Supreme Court decision on Roe v. Wade — which provides women the liberty to choose to carry out an abortion — Bonta is taking “concrete action to protect the health and rights of all those capable of becoming pregnant.”
“If the Supreme Court overturns or guts Roe v. Wade, that will make all pregnant people, not just those seeking abortion, vulnerable to state surveillance, control and potential criminal prosecution,” she said.
The attorney general’s guidelines, she said, will help protect many Californians. She also noted there is a coalition that’s working to free Perez.
“By making clear today that a person who experiences a pregnancy loss is not a murderer, Attorney General Bonta reminds us that pregnancy is a health issue and not a law enforcement one,” she said.
Farah Diaz-Tello, senior counsel with If/When/How, a reproductive justice organization, said criminalizing women for the outcomes of their pregnancies is “counterproductive and dangerous.”
“The overreach of prosecutors who seek to punish people for experiencing stillbirths threatens nearly 300 years of legal principle forbidding the state from criminally punishing people for the outcomes of their pregnancies,” she said.
Other pregnant women across the country have also been penalized in similar ways, such as one in Alabama who faced a felony charge for taking prescribed painkillers. She was investigated after her newborn tested positive for the opioid.
Lee said Bonta’s guidelines are a national model that she hopes “other states will follow to promote the health of pregnant people, children and families, and to end the scourge of pregnancy-based prosecutions.”