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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 …….