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Pregnant women who cause deaths of unborn babies shouldn't be charged with murder, Calif. AG declares

Rob Bonta
California Attorney General Rob Bonta |

California Attorney General Rob Bonta advised district attorneys, police chiefs and sheriffs across the state Thursday not to prosecute pregnant women whose actions lead to the miscarriage or stillbirth of a fetus under section 187 of the California Penal Code because mothers were not the intended target of the legislation.

A press statement from Bonta’s office said his instruction to law enforcement and court officials on Thursday is meant to “prevent improper and unjust applications of the law similar to” the recent prosecutions of two Kings County women.

Adora Perez and Chelsea Becker were charged with “fetal murder” for allegedly causing the stillbirth of their fetuses.

Becker’s charges were dismissed in May 2021, but Perez is currently serving an 11-year sentence after drug use was found to have contributed to the death of her baby.

“The loss of a pregnancy at any stage is a physically and emotionally traumatic experience that should not be exacerbated by the threat of being charged with murder,” Bonta said in his statement. “The charges against Ms. Becker and Ms. Perez were not consistent with the law, and this misuse of section 187 should not be repeated. With reproductive rights under attack in this country, it is important that we make it clear: Here in California, we do not criminalize the loss of a pregnancy.”

In a legal alert sent to the relevant authorities on Thursday, Bonta explained in an attached amicus brief in support of Perez’ case in June 2021 that Penal Code section 187 — the state’s murder statute — was amended to include the “unlawful killing” of a “fetus” more than half a century ago.

“The text, purpose, and legislative history of that amendment demonstrate that the Legislature intended only to ensure that a third party who unlawfully kills a fetus does not escape punishment,” he argued.

He said that the legislature was careful to exclude several categories of actions, including those related to legal abortions and any “act” that was “aided, abetted, or consented to by the mother of the fetus.”

“A woman necessarily consents to an act that she herself voluntarily undertakes, free of fraud, duress, or mistake. The acts in question in this case — Perez’s alleged drug use during her pregnancy — fall squarely within the subdivision (b)(3) exclusion. This Court should issue an order to show cause,” he noted.

The facts in Perez’s case show that she suffered a stillbirth at Adventist Health Hanford on Dec. 30, 2017, after 37 weeks of gestation. The Hanford Police Department was called and Perez’s doctor informed the police that the stillbirth was caused by methamphetamine use during pregnancy.

Perez was charged with murder under Penal Code 187 by the district attorney. Her court-appointed counsel didn’t challenge whether section 187 applied. She later pleaded “no contest” to an amended complaint alleging voluntary manslaughter. Perez accepted the plea according to the amicus brief because her counsel and the court advised her that she was facing a life sentence on the murder charge.

She later attempted to withdraw her plea with private counsel but failed. In June 2018, the court sentenced Perez to a maximum term of 11 years in prison.

Perez is still fighting for her release, and Bonta continues to support her efforts on the grounds that Penal Code 187 was improperly applied to her case.

“It is already well settled that manslaughter lies only for the killing of a ‘human being,’ and not a fetus. And as outlined below, it seems equally clear that a woman cannot commit the crime of murder of her own fetus, as actions to which a pregnant woman consents are expressly outside the statute’s scope,” Bonta argued. “The Attorney General agrees with Perez that the text, purpose, and legislative history of California Penal Code section 187 demonstrate that a woman cannot be prosecuted for murder as a result of her own omissions or actions that might result in pregnancy loss.”

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