Mother Charged With Murder After Home Birth in California Is ‘Harbinger’ of Post-Roe Reality

In November 2020, Kelsey Carpenter went into labor early and had a home birth that ended in the death of her newborn, Kiera. She chose to give birth at home because she feared her baby would be taken away due to her substance use; Carpenter had already lost custody of her first two children when they tested positive for drugs in the hospital. Following this tragedy, instead of being offered support services to grieve the loss of her baby, Carpenter was charged in 2021 with homicide and felony child abuse, punishable with up to two decades in prison. She’s been in jail since February, when she missed a hearing because she’d checked herself into rehab.

Prior to Kiera’s birth, Carpenter prepared extensively to have a home birth, consulting with a midwife and naming her unborn daughter. According to her lawyers, after giving birth, she cut the umbilical cord and secured it using cloth and tape, then tried to breastfeed her newborn, but passed out due to significant blood loss. When Carpenter awoke, she found Kiera unresponsive and called 911 after unsuccessfully performing CPR on the newborn. Carpenter was taken to the police station and questioned shortly after, while still in shock and acute physical pain.

In an interview with Jezebel, Amber Fayerberg, a consulting attorney for Pregnancy Justice who is working on Carpenter’s case, characterized it as a “harbinger and a symptom” of escalating attacks on pregnant and birthing people’s rights in our post-Roe v. Wade reality.

On Wednesday, oral arguments for the case began in San Diego, California, as Carpenter’s lawyers seek to have the charges against her dismissed. Prosecutors have previously cited Carpenter’s decision to have an “unattended delivery” and her substance use. Her arrest warrant from March 2021 charges her with intrauterine drug use and having a baby at home alone. But in January of this year, AB 2223, a California law that prohibits people from being charged for behaviors during pregnancy that could result in abortion or perinatal loss, took effect. Since then, the district attorney’s office has pivoted to focusing on Carpenter’s behaviors after giving birth. Wednesday’s arguments largely centered around whether or not AB 2223 is applicable to Carpenter’s case.

“This is not a reproductive rights case. This is a case about massive parental failure,” San Diego County deputy district attorney Jennifer Rebecca Kaplan argued. “And it’s precisely the type of case that AB 2223 said it would not cover.”

Kaplan insisted that the law’s protections don’t apply to Carpenter because Kiera died as a result of Carpenter’s actions after pregnancy—namely her approach to cutting the umbilical cord and a slight delay in calling 911 when Kiera didn’t respond to CPR.

But Fayerberg argued that AB 2223 does protect Carpenter, whose case wouldn’t have drawn attention from law enforcement were it not for Carpenter’s behaviors during pregnancy and her home birth. Fayerberg asserted that the act of cutting the umbilical cord is also protected, because “cutting the umbilical cord is an act that is necessarily related to pregnancy,” and AB 2223 protects “any acts or omissions with respect to pregnancy, including perinatal death.” Fayerberg insisted the California law protects Carpenter’s decision to have a home birth, as well.

A county coroner in 2020 deemed the newborn’s death an “accident” and the cause of death as “perinatal death associated with methamphetamine and buprenorphine exposure and unattended delivery.” But a Yale University expert who reviewed placental records for Carpenter’s legal team determined that blood loss from a rupture unrelated to substance use (causing hemorrhages at the umbilical stump and germinal matrix, a part of the developing brain) was the cause of death for the newborn.

Last year, a medical examiner testified at a hearing that there’s no certainty Kiera would have survived a hospital birth, and the same examiner said that Kiera’s death is “not a homicide because there’s no intent to kill.”

Carpenter “was hysterically crying, completely inconsolable” after daughter’s death

Carpenter has previously spoken about how her struggles with addiction stemmed from a history of surviving sexual abuse, prompting her to seek treatment on multiple occasions and get help from a facility that prescribed her buprenorphine while pregnant with Kiera. Buprenorphine is recommended by U.S. health agencies and medical groups to help pregnant patients with opioid disorders. Her legal team has insisted that prior to giving birth, Carpenter was doing everything she could to prepare to raise her daughter.

Her mother recounted to the Guardian in April that Carpenter was devastated by Kiera’s death. On the night Carpenter was arrested, her mother says that she “was hysterically crying, collapsing in my arms, completely inconsolable, hyperventilating” at the police station.

Two and a half years after Kiera’s death, the office of San Diego district attorney Summer Stephan remains determined to charge Carpenter with homicide and has shifted strategies to move forward despite AB 2223. A spokesperson for Stephan’s office told the Guardian earlier this year that “Carpenter is not being prosecuted for her decision to have a home birth or substance use. … This is a case about a newborn baby who died as a direct result of a parent’s acts and omissions after the baby’s live birth.”

According to Fayerberg, prosecutors’ ongoing pursuit of charges against Carpenter “creates greater danger” for any pregnant person who doesn’t have a seamless birth, increasing the risk that prosecutors will malign or blame them for how their pregnancy or birth ends.

Because of Carpenter’s decision to have a home birth, Fayerberg says, her client is currently “struggling in jail,” where she’s unable to receive treatment for her substance use disorder and is separated from her two children.

Carpenter’s case is the tip of the iceberg

Carpenter’s trial comes amid a surge in pregnancy-related criminal charges in recent years, as well as the spread of state abortion bans after the Supreme Court overturned Roe, resulting in further, dangerous collusion between the health and criminal legal systems. (The majority of people facing pregnancy-related criminal charges were first reported to law enforcement by their hospital.) Before Roe fell, Pregnancy Justice tracked nearly 2,000 cases of criminal charges for pregnancy and perinatal outcomes since 1973; so far in 2023, the organization has worked on 30 cases involving the policing and criminalization of pregnant people—the total number of cases it worked on throughout the entirety of 2022.

These criminal charges typically arise when local prosecutors misuse fetal homicide and child endangerment laws, and erroneously apply them to pregnancy outcomes and perinatal loss. This can result in the surveillance and state punishment of people like Carpenter over routine, legal health care decisions, like having a home birth or self-managed abortion. As confusion reigns around pregnant people’s legal rights post-Roe, Fayerberg says we’re likely to see more cases like this.

Just since Roe was overturned in June 2022, there have been many high-profile cases of people facing criminal charges and lawsuits, including for alleged drug use during pregnancy in Alabama; a teen’s self-managed abortion in Nebraska; and the mere act of helping someone get abortion pills in Texas. Carpenter’s case, of course, is taking place in California, proving these tragedies can occur even in states that are havens for reproductive rights—that’s because pregnancy-related criminalization is largely up to the discretion of local law enforcement.

As pregnant and birthing people’s rights are further eroded, their behaviors—including behaviors that “wouldn’t otherwise be criminal, were they not pregnant,” Pregnancy Justice’s president Lourdes Rivera has told Jezebel—become subject to state surveillance and criminalization. This can dissuade people like Carpenter from seeking prenatal care or going to the hospital, increasing the risk of complications.

Since losing Kiera, Carpenter has struggled with threats and harassment from her community, after she faced local news headlines like “Drug addict loses third child.” Others who have faced policing following pregnancy loss have had similar experiences: Another California woman, Jessica Tebow, lost her job and was forced to move away from her community after police arrested her husband and investigated them both for keeping their stillborn fetus for a bereavement ceremony.

“I am still stunned and horrified that a person could have the biggest tragedy of their life and lose a child who was loved and was so wanted, and then be charged with such a horrible crime,” Carpenter told the Guardian in April from jail. “I had cherished the idea of this baby and was totally committed to becoming the best mother I knew how to be. I mourn every day for Kiera.”