California AG tells prosecutors they shouldn’t lay charges of stillbirth fetal murder

Prosecutors should not charge women with murder when a fetus dies, even if their behavior may have contributed to the death, California’s top law enforcement official said Thursday.

Attorney General Rob Bonta acted after Kings County prosecutors in the San Joaquin Valley twice charged women with “fetal murder”, alleging their drug use resulted in stillbirths. He issued a statewide alert intended to advise law enforcement officials on how to interpret state law.

More recently, Kings County prosecutors charged in 2019 that a woman’s use of methamphetamine resulted in stillbirth and therefore amounted to murder. A judge dismissed the charges in May.

The loss of the woman’s baby “has been blamed, without scientific basis, on her consumption of a controlled substance,” said Samantha Lee, an attorney with the National Advocates for Pregnant Women representing her.

A second woman is challenging her conviction after being indicted in 2017 on similar grounds. She pleaded guilty to manslaughter and was sentenced to 11 years in prison.

Bonta has said that under her legal interpretation of California murder law, a pregnant woman cannot be prosecuted for the murder of an unborn fetus based on the outcome of her pregnancy. He said lesser charges such as manslaughter do not apply in such cases either.

“It’s an experience that should be lived with an outstretched hand, not with handcuffs and murder charges,” Bonta said.

Kings District Executive Assistant Prosecutor Philip Esbenshade said the cases “do not concern abortion or women’s reproductive rights in any way.”

Bonta’s alert “does not include specific important and relevant facts” which show that the woman who was charged in 2017 repeatedly used methamphetamine which “directly resulted in the death of a viable fetus”, he said, noting that his plea deal was upheld on appeal.

Bonta limited his legal interpretation to California murder law and did not say whether other charges such as reckless endangerment or endangering children might be justified in certain circumstances. He said his performance also did not cover postpartum situations, such as a Mendocino County woman convicted last year of her newborn baby’s death due to methamphetamine in her breast milk.

“But in general, California law doesn’t criminalize pregnancy loss,” he said.

the California Council for the Future of Abortion, made up of more than 40 abortion providers and advocacy groups, asked Bonta to provide his interpretation of the law.

The text of Section 187 of the Penal Code and the intention of the legislature show that California laws do not criminalize a woman’s own actions that could result in miscarriage or stillbirth, he said.

The legislature amended this section of the law in 1970 to include the death of a fetus, but with the intention of criminalizing violence against pregnant women that caused the death of the fetus, Bonta said. The intention, he said, was never to include a woman’s own actions that could lead to miscarriage or stillbirth.

California defines murder as “the unlawful killing of a human being, or a fetus, with premeditated malice.” But it excludes any act which “has been requested, helped, encouraged or consented to by the mother of the fetus”.

Bonta said criminalizing the actions or inactions of pregnant women could have dangerous, broader consequences. Pregnant and drug-addicted women could avoid health services for fear their drug addiction could lead to criminal prosecution, he said. He also argued that it would invite law enforcement to unwarranted scrutiny of miscarriages and stillbirths.

Both are relatively common, he noted, citing statistics that one in 10 pregnancies is lost in the first trimester, while stillbirths occur during one in 160 childbirth.

Bonta was backed up at an online press conference by Jodi Hicks, president and CEO of Planned Parenthood Affiliates of California, who spoke out against lawsuits by “rogue district attorneys.”

Farah Diaz-Tello, Senior Counsel and Legal Director of If / When / How: Lawyering for Reproductive Justice, said such lawsuits would disproportionately affect people on the margins of society because of their race, poverty or background. their immigration status.

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