Imprisoned for a Stillbirth: Pregnancy Criminalization, California, and the Future of Abortion

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On June 24, 2022, the Supreme Court overturned Roe v. Wade and nearly 50 years of precedent guaranteeing the constitutional right to abortion. This decision places abortion even further out of reach for millions of Americans and opens the door for the mass criminalization of abortion for both patients and providers. Although our state laws and constitution have long protected and will continue to protect the right of Californians to access abortion, we are not immune from this trend of criminalization.

One of the most recent threats has come out of Kings County, California. During his tenure as the county District Attorney, Keith Fagundes conducted an unlawful campaign to blame, charge, and imprison two different women for their stillbirths.   

Adora Perez was the first women targeted by DA Fagundes. In 2018, when Perez was 29 years-old, he filed murder charges against her after she experienced a stillbirth that Fagundes claimed, without scientific basis, was caused by drug use. 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 was sentenced to 11 years in prison. After four years, a court vacated Perez’s conviction, and in May 2022, DA Fagundes dropped the case against her.

Similarly, in May 2021, the charges against Chelsea Becker were dismissed, but not before she spent over a year in jail.

We are overjoyed that Ms. Perez and Ms. Becker have secured their freedom, but they should never have been prosecuted in the first place. Their 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 potentially linked to a pregnancy loss.

Pregnancy criminalization takes on renewed urgency given the national state of reproductive rights. Like pregnancy criminalization and other attacks on reproductive freedom, the devastating consequences of the Supreme Court’s decision will fall most heavily on 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. This disparity places their health and families at risk.

Kings County District Attorney Ignored the Constitution and Twisted California Law

The surveillance and regulation of pregnant people is a nationwide problem, often justified using “fetal assault” laws, which 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 Adora Perez and Chelsea Becker's 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 we successfully obtained our client’s release.

The ACLU of Northern California submitted amicus briefs in both Ms. Becker’s and Ms. Perez’s cases to spotlight the severe constitutional concerns with prosecuting Perez and Becker. The California Attorney General’s office also intervened, filing amicus briefs and issuing a first-of-its-kind legal alert affirming that the fetal assault law was never intended and should never be used to imprison women who have pregnancy complications.

In response to Ms. Becker’s argument that she is constitutionally entitled to reasonable bail, the DA’s office repeatedly made paternalistic arguments –that being locked in jail amid a pandemic, away from her family and community, was good for Ms. Becker and justified the $2 million bail they set. 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.

Fagundes’ campaign against Perez and Becker is part of a broader effort to assert government control over pregnant people’s bodies. If successful, it 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.

“Incarceration First” Policies Cause 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. Medical experts agree that there is no scientific connection between substance use and stillbirth. Miscarriages and stillbirths are an unfortunately common outcome of pregnancy.

Furthermore, 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.   

The charges brought against Ms. Perez and Ms. Becker happened 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.

Case Updates and Details

Both Adora Perez and Chelsea Becker have been released and are finally finding the support and healing they and their families need. Ms. Perez was represented by new counsel at Swanson & McNamara LLP and the Law Office of C. Matthew Missakian, Ms. Becker was represented by attorneys from National Advocates for Pregnant Women (NAPW); Arshack, Hajek and Lehrman, PLLC; Jacqueline Goodman Law Offices; and Nuttall & Coleman.  

The Legislature Must Act to Ensure What Happened to Ms. Perez and Ms. Becker Does Not Happen Again.

Now more than ever, we are committed to continuing the fight to protect and advance reproductive justice across our state.

California law already firmly establishes and protects the right to abortion and reproductive decision-making. But the Supreme Court’s devastating decision and Adora Perez and Chelsea’s cases are reminders that we must continue to fight to ensure that all Californians have access to reproductive justice.

That is why are proud to co-sponsor AB 2223, authored by Assemblymember Buffy Wicks, which would strengthen existing California law and help ensure that no one in the State of California is investigated, prosecuted, or incarcerated for ending a pregnancy or experiencing pregnancy loss. AB 2223 would prevent prosecutions and invasive interrogations by updating out-of-date provisions that give coroners a duty to investigate certain pregnancy outcomes. It would also protect abortion rights and empower people to seek legal recourse if their reproductive rights are violated.

AB 2223 is also sponsored by our partners Black Women for Wellness Action Project, California Latinas for Reproductive Justice, If/When/How: Lawyering for Reproductive Justice, NARAL Pro-Choice California, and Planned Parenthood Affiliates of California.

To find out more about how you can support AB 2223 and other California bills advancing reproductive justice, please visit https://action.aclu.org/send-message/ca-roe-action

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