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It was the first legal alert announced by the California Department of Justice — and the first guidance of its kind in the nation.

On Jan. 6, Robert Bonta, the state’s attorney general, announced that a person carrying a fetus cannot be charged with murder for miscarriage or stillbirths.

The legal alert, meant to clarify the California DOJ’s view on “select questions of law,” Bonta said, was issued to all district attorneys, police chiefs and sheriffs and clarified that a state law on fetal murder only applies to third parties and cannot be used against a pregnant person whose fetus dies.

Pregnancy loss, even in instances where a person’s actions may have contributed to the death of the fetus or embryo, “should be met with an outreached hand, not handcuffs and murder charges,” said the state’s top prosecutor.

The announcement relates directly to two recent cases out of Kings County, Calif., where in the past four years the district attorney’s office has charged two women with murder for using methamphetamines during pregnancy, arguing that their drug use led to the stillbirths.

California’s fetal homicide law only applies to third parties, said Bonta, and states a clear exception to any act “solicited, aided, abetted or consented to by the mother of the fetus.”

The law’s architect, a Republican state assemblyman, said in a 1992 sworn affidavit that lawmakers did not intend “to make punishable as murder conduct by a pregnant woman that resulted in the death of her fetus."

While the legal guidance applied to a specific statute of California law, Bonta told The Lily, “We need to be absolutely clear-eyed about the moment that we’re in now, nationally.”

“We are committed to providing the strongest protections to individuals in California for reproductive freedom and access to reproductive care,” California’s top prosecutor said. “Preventing misuse of murder statutes to penalize pregnancy loss ... is one important step in that effort.”

This past December, California lawmakers laid out a proposal that would make the state a sanctuary for “reproductive freedom,” including the right to seek an abortion. Among the ideas put forward was to fund abortions for low-income individuals coming from out of state to end their pregnancies.

Antiabortion activists have strongly criticized the plan. “A ‘sanctuary’ where children are taken to be killed,” Lila Rose, the California-based president of the antiabortion group Live Action, wrote on Twitter. “More like a slaughter house than a sanctuary.”

The announcement came amid increasing uncertainty about the future of Roe v. Wade, which guarantees the constitutional right to an abortion. The landmark case is facing its strongest legal challenge in decades with Mississippi’s 15-week abortion ban. Mississippi has explicitly asked that its case, Dobbs v. Jackson Women’s Health Organization, be used to overturn Roe.

A number of states, including Arkansas, Idaho, North Dakota and Texas, have instituted trigger laws that would automatically ban abortion in the first and second trimesters if Roe falls. The Guttmacher Institute estimates that 26 states — more than half the country — are “certain or likely” to ban abortion in such a scenario. If that happens, more people will flock to states like California to end their pregnancies, according to the Guttmacher Institute, which supports abortion rights.

At a time when states are moving further apart on abortion access, abortion rights advocates say prosecutions like those in Kings County are an increasing point of concern, in part because they could be applied to cases in which the pregnant person seeks an abortion.

Bonta’s announcement is an important step in making sure that no one is punished for the outcome of their pregnancy, whether they intended to end it or not, said Lynn Paltrow, founder and executive director of the National Advocates for Pregnant Women (NAPW), whose attorneys have represented the defendants in the Kings County cases.

In this environment, any criminalization of adverse pregnancy outcomes, including miscarriages and stillbirths, is a threat to reproductive rights, she said.

Bonta’s announcement, while addressing one specific California statue, is “very broad in terms of its message,” said Paltrow: “Pregnancy and pregnancy outcomes should not be addressed with the criminal law system.”

Kings County Executive Assistant District Attorney Philip Esbenshade told the Associated Press that the cases are not “in any way” about abortion or reproductive rights. (The office did not respond to an additional request for comment.)

Reproductive rights advocates have long been concerned about laws criminalizing pregnancy loss.

Samantha Lee, a staff attorney at NAPW, said criminal charges because of adverse pregnancy outcomes are rooted in a “longtime stigma associated with miscarriage.”

Lee represented Chelsea Becker, who was charged by the Kings County district attorney in 2019 with murder after giving birth to a stillborn baby. Kings County District Attorney Keith Fagundes argued that toxic levels of methamphetamines caused the death of the fetus. Becker spent more than a year in jail because of a $2 million bail, which was set to prevent “the prospect of [Ms. Becker] becoming impregnated” again.

Becker’s murder charge was dropped in May 2021, after a judge found that prosecutors had not presented sufficient evidence that Becker took drugs knowing it could kill her baby.

The charges Becker faced are “based on the idea that we can guarantee a healthy pregnancy. If your pregnancy isn’t healthy, that’s somehow your failure,” argued Lee. “That’s simply not true.”

Some medical studies have shown links between drug use, including of methamphetamines, and adverse pregnancy outcomes, including pregnancy loss. The American College of Obstetricians and Gynecologists (ACOG) as well as the Centers for Disease Control and Prevention say pregnant people should not use tobacco, alcohol, marijuana, illegal drugs or prescription medications for nonmedical reasons.

The Kaiser Family Foundation noted in a recent policy brief that, “more often than not, the cause of a pregnancy loss is unknown even after thorough evaluation.”

“Most stillbirths are caused by genetic abnormalities, problems with the placenta, fetal growth restriction or infection,” stated the report.

And while some substance abuse can be a risk factor for pregnancy loss, the reports adds, “risk factors do not cause pregnancy loss, thus a pregnant person with one or more of these risk factors should not be faulted for their pregnancy loss.”

ACOG also discourages providers from reporting pregnant people with substance abuse disorders: “The use of the legal system to address perinatal alcohol and substance abuse is inappropriate,” its guidance reads.

Most of the cases criminalizing a pregnancy outcome involve some form of drug and alcohol use, said Paltrow, but they aren’t the only ones. In 2010, an Iowa prosecutor brought attempted feticide charges against a woman who fell down a flight of stairs after an upsetting call with her estranged husband. In Utah, a woman was charged with murdering one of her near-term twins after refusing a Caesarean section.

Reproductive justice advocates often point out the racial disparities in pregnancy loss: In Mississippi, for example, Black women were found to be twice as likely as White women to deliver a stillbirth. NAPW notes that the vast majority of charges based on one’s pregnancy are brought against poor women and women of color.

Farah Diaz-Tello, senior counsel and legal director for the advocacy group If/When/How: Lawyering for Reproductive Justice, said the people who are charged with crimes against their pregnancies reflect “the population that is already over-policed and over-surveilled.”

“They are also the least likely to be able to access resources they would need to defend themselves,” she said. “And, perversely, more likely to experience adverse pregnancy outcomes because of the marginalization they’re experiencing.”

As abortion restrictions get more acute around the country, Lee thinks more people have started paying attention to these laws.

She noted that there is no real way to differentiate between self-managed abortion — when people terminate their pregnancies outside of a formal clinic settings — and miscarriages or stillbirths.

Paltrow pointed out that most of NAPW’s cases involve women who delivered healthy babies but were still criminalized for their conduct during and after pregnancy.

“If you can lock somebody up for having given birth to a healthy baby,” she said, “what do people think is going to happen when Roe v. Wade is overturned?”

Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, said in a recent interview with the New Yorker that she is against punishing women for seeking or getting abortions.

If abortion is deemed illegal, said Dannenfelser, “my view, and the view of the entire movement — without any exception that I’m aware of — is that the doctor, the one who has been planning to break the law, is the guilty party. The law is enforced against that person, not the woman.”

But some conservative lawmakers do not appear to share this belief. Last year, Texas state Rep. Bryan Slaton (R) filed legislation aimed at people who get abortions, along with their medical providers. If found guilty of ending their pregnancies, they could get the death penalty.

“It’s time Republicans make it clear that we actually think abortion is murder,” he said, according to the Texas Tribune.

But, Slaton also said, he did not think his bill would “put a single person in jail.”

“All my bill does,” he said, “is say that an unborn child is the same as a born child and should be treated the same by the laws.”

Texas lawmakers did not advance Slaton’s bill last year.

Michele B. Goodwin, a Chancellor’s Professor at the University of California at Irvine and author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood,” applauded California’s recent guidance.

“It is terrific that there is an effort to move away from toxic criminalization of people who are pregnant, for their behavior or conduct during their pregnancies,” she said. “This kind of intervention is long overdue.”

Goodwin has tracked cases like those in Kings County for 20 years. These prosecutions are rooted in the idea that embryos and fetuses have a right to personhood, she said.

These kinds of cases took off in the 1980s and ’90s during the crack epidemic, she added, when the media and others fueled panic that women using crack cocaine were giving birth to babies addicted to crack (these claims, primarily targeting Black women, were later determined to be unfounded).

“Personhood” — or a fetus’s right to life — also undergirds other laws that overrule the pregnant person’s autonomy, said Goodwin. She listed pregnancy exclusions laws as one such example, which require doctors to ignore the wishes of pregnant people who wish to end life-sustaining care, so that they might bring their pregnancies to term. As of 2020, 35 states had such laws.

“It would be a mistake to see [controlling the lives of pregnant people] as only within the realm of abortion,” said Goodwin.

Bonta said he hopes that other states will follow California’s lead.

The attorney general said he “would be shocked if there weren’t numerous other states that have similar statutes to ours in California, where the actual conduct of the mother cannot lead to a charge of murder.”

“Where that’s true, I think they should declare it and join us,” he said.

As for his state, Bonta vowed: “We’ll see a lot more from California in this regard.”

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