Imprisoned for a Stillbirth: Kings County Is Criminalizing Pregnancy Loss

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There’s a disturbing trend in Kings County, California. The county District Attorney, Keith Fagundes, is leading an unlawful effort to surveil and prosecute people who lose their pregnancies.

In 2018, DA Fagundes charged Adora Perez, a 29-year-old woman, with murder after she experienced a stillbirth. A year later, he brought similar charges against Chelsea Becker, then 25, under virtually identical facts. Both women have substance use disorders, and were reported to the police by staff at Adventist Health Hanford Hospital. During her initial prosecution, Adora Perez received inadequate legal counsel and pled guilty to manslaughter for losing her fetus, a crime that doesn’t exist in California. She is now three years into an 11-year prison sentence. Chelsea Becker is still challenging her prosecution, but is being held in jail on a $2 million bail, which DA Fagundes explicitly argues is to prevent “the prospect of [Ms. Becker] becoming impregnated” again.

These cases have deeply troubling implications for California and the rest of the nation - they represent a growing effort, on top of the widescale erosion of abortion rights, to control and regulate pregnant people’s bodies. Criminalizing pregnancy outcomes opens the door for the state to interrogate, and prosecute, any action that could be potentially linked to a pregnancy loss. Miscarriages and stillbirths are an unfortunately common outcome of pregnancy. And this precedent would disproportionately harm Black and Brown communities who, as a product of decades of state discrimination and neglect, have inadequate access to health care and other vital resources that place their health and families at risk.

Kings County District Attorney Ignores the Constitution and Twists California Law

The surveillance and regulation of pregnant people is a nationwide problem, often justified using “fetal assault” laws - laws that allow for prosecution of third-party harm to a fetus (such as someone intentionally assaulting a pregnant person to try to cause a miscarriage). In California, the laws around fetal assault were explicitly designed to protect pregnant people themselves from being prosecuted for miscarriages, stillbirths, abortions, or other pregnancy outcomes.

Prior to these cases, every California court that has taken up this question has affirmed that women cannot be prosecuted for the outcomes of their pregnancies. In the 1990s, the ACLU represented three women who were charged with murder for losing their pregnancies, and each time was successful in obtaining our clients’ release. The ACLU of Northern California has submitted amicus briefs in both Ms. Becker’s and Ms. Perez’s cases to spotlight the severe constitutional concerns with the DA’s actions resulting in Perez’s and Becker’s imprisonment. The California Attorney General’s office has also intervened, filing amicus briefs, which affirmed that the fetal assault law was never intended and should never be used to imprison women who have pregnancy complications.

It is also unconstitutional for pregnant people to be prosecuted for their pregnancy outcomes. The DA’s efforts in the Perez and Becker cases represent some of the most extreme and invasive effort to assert government control over pregnant people’s bodies, and if successful, could potentially giving prosecutors the power to criminalize a wide range of behavior—like running, eating certain foods, or working a stressful or physically demanding job.

In fact, the DA is arguing that the stillbirths in the Perez and Becker cases were the result of methamphetamine use during pregnancy. But medical experts argue that there is no scientific connection between substance use and stillbirth.

The DA’s “Incarceration First” Policies are Causing Further Harm

The DA’s decision to prosecute women for their pregnancy outcomes is a misguided, punitive approach that misunderstands the nature of pregnancy and substance use disorder, including what type of assistance is actually needed to help people in both situations. Public health experts have repeatedly warned that attempts to prosecute substance use disorders only serve to push people away from the services that they need, such as health care, treatment, and a safe system of support.    

In response to Ms. Becker’s argument that she is constitutionally entitled to reasonable bail, the DA’s office has repeatedly made paternalistic arguments – he’s that being locked in jail amid a pandemic, away from her family and community, is good for Ms. Becker and justifies the $2 million bail. In a further attempt to justify Ms. Becker’s outrageous bail amount, the DA also has argued that “the prospect of [Ms. Becker] becoming impregnated” poses a threat to public safety.

The charges brought against Ms. Perez and Ms. Becker are also happening against the backdrop of rising concerns around drug use in the Central Valley. Instead of incarceration, preventing these tragedies requires an inspection of regional public health failings, poverty, and environmental stresses, and their impact on pregnancies and addiction, as well as investment in services that support pregnant people and those with substance use disorder. Kings County in particular, and the Central Valley more generally, have few public services available for families and people suffering from addiction. Parents are largely left without adequate treatment options or places to turn to get help.

Legal Updates and Details

Both Adora Perez and Chelsea Becker are challenging their imprisonment in court. Ms. Perez is now being represented by new counsel at Swanson & McNamara LLP and the Law Office of C. Matthew Missakian, who have filed a motion to reopen her case, arguing that Ms. Perez should never have pled guilty, and only did so based on erroneous legal advice. Ms. Becker is represented by attorneys from National Advocates for Pregnant Women (NAPW); Arshack, Hajek and Lehrman, PLLC; Jacqueline Goodman Law Offices; and Nuttall & Coleman, who are challenging her prosecution and $2 million bail.  

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