In 2019, Kings County prosecutors in California charged a woman with “fetal murder” after she experienced a stillbirth from alleged methamphetamine use. Another woman in the county in 2017 was sentenced to 11 years in prison, facing similar charges over a pregnancy loss. In both cases, prosecutors alleged the women’s drug use had led to the stillbirths.
As more and more people across the country face criminal charges and even prison sentences for the outcomes of their pregnancies, at least one state is taking action to protect pregnant people.
On Thursday, California Attorney General Rob Bonta issued a statewide alert advising law enforcement to not charge people for murder over pregnancy loss, regardless of their behavior—including drug use—before losing the pregnancy.
“The law is not to punish those who suffer the loss of their pregnancy,” Bonta said in a press conference. He specifically singled out the two aforementioned cases in Kings County, and asserted that “the [fetal murder] charges were not consistent with the law.”
Bonta noted that in Penal Code section 187, which defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought,” the reference to a fetus had been added in 1970 by the state legislature. “Today’s alert reiterates the legislature did not intend to include a pregnant person’s own actions that might result in a miscarriage or stillbirth—rather, the addition was meant to criminalize violence done to a pregnant person,” he said.
Thirty-eight states currently hold such feticide laws, which should be functioning to protect pregnant people considering homicide is a leading cause of death for them. Instead, in states across the country, many pregnant people have been punished and criminalized for their pregnancy losses by prosecutors citing these laws.
“The loss of a pregnancy at any stage is traumatic, it is physically traumatic, emotionally traumatic — it’s an experience that should be met with an outreached hand, not handcuffs and murder charges,” Bonta said.
Farah Diaz-Tello, senior counsel at the reproductive justice legal advocacy group If/When/How, praised Bonta’s legal alert, calling it “a powerful affirmation of the principle that people don’t lose their right to equal protection of the law because they can become pregnant,” in a statement to Jezebel. She added that recent prosecutions against pregnant people serve “to target and criminalize communities marginalized by society because of their race, poverty, immigration status and other identities.”
According to Diaz-Tello, all states and the federal government should be taking action, too. “[Pregnancy criminalization] reflects a crisis of our democracy and state attorneys general should make extraordinary efforts to get prosecutors to carry out the law as it is written and as it has been interpreted by judges,” she said. “Ideally, this would be a clarion call to other state attorneys general—and the U.S. Department of Justice—to use the power of their offices to investigate other such misuses of the law, and remedy any patterns or practices that allow these abuses to persist.”
As Diaz-Tello notes, pregnancy criminalization carries fundamentally racist, classist impacts. Bonta’s legal guidance and press conference are particularly important as more and more primarily Black, Indigenous, and pregnant people of color are being targeted, especially for substance use, all over the country. Data even shows people of color experience higher rates of stillbirth, miscarriage, and pregnancy complications than white people, and are also more likely to be criminalized for substance use.
In October, Brittney Poolaw, a 21-year-old Native American woman and member of the Comanche Nation, was charged with first-degree manslaughter in Oklahoma for experiencing a stillbirth after alleged methamphetamine use. Oklahoma’s district attorney had announced in 2017 that they would be increasing measures to prosecute pregnant people alleged to have used drugs through the state’s felony child neglect laws. Just last summer, a pregnant woman in Alabama faced felony charges for seeking to refill a prescription for medication for her chronic back pain.
In other cases, people have been prosecuted for using or planning to use FDA-approved medication abortion to end their pregnancies. Purvi Patel, an Indian-American woman in Indiana, was jailed and paradoxically charged with both feticide and child abuse in 2015 for allegedly inducing an abortion, after her online purchase of abortion pills was brought as evidence against her. Latice Fisher, a Black mother of three in Mississippi, was jailed in 2018 when she experienced a stillbirth. Prosecutors claimed she killed the fetus by citing her online searches for abortion pills as “motive.”
Kings County Executive Assistant District Attorney Philip Esbenshade responded to Bonta’s press conference by claiming the cases Bonta cited “are not about abortion nor women’s reproductive rights in any way.” But safety from criminalization for pregnancy outcomes is perhaps the most fundamental reproductive right that exists. As access to in-clinic abortion care dwindles across the country, more and more people are ending their pregnancies with abortion pills, which can’t medically be distinguished from a miscarriage. More and more states are currently trying to ban or criminalize abortion, and in the absence of this legal right, all pregnancies and pregnancy losses would be treated as potential crime scenes.
“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,” Samantha Lee, an attorney at the National Advocates for Pregnant Women, said in a statement, in response to Bonta’s press conference. “While many are simply waiting for the Supreme Court’s decision, Attorney General Bonta has taken concrete action to protect the health and rights of all those capable of becoming pregnant. This guidance is a national model that we hope other states’ leaders will follow to promote the health of pregnant people, children, and families, and to end the scourge of pregnancy-based prosecutions.”