Late last month, the CA Supreme Court declined to intervene — at least for now — to halt a murder case against Chelsea Becker, a Kings County woman whom prosecutors said caused her own pregnancy loss because of methamphetamine use in 2019.
In 1970, California legislators added the “unlawful killing” of a “fetus” to the state penal code’s definition of murder. Lawmakers intended to create criminal legal consequences for individuals who killed a fetus inside another woman.
The bill was introduced and passed in direct response to a 1969 case in which a man beat his ex-wife, Teresa Keeler, who had become pregnant with another partner, telling her he was going to “stomp it out” of her body. After the beating, Keeler delivered a stillborn baby with a fractured skull.
The California Supreme Court overturned the man’s murder conviction in 1970, finding that “the unlawful killing of a human being” did not include the killing of a fetus.
While the legislators intended to close the loophole that allowed the man to avoid a prison sentence for murder, in recent years, Kings County District Attorney Keith L. Fagundes has begun using the penal code language to incarcerate women whose fetuses, Fagundes has argued, died as a result of drug use during pregnancy.
This, despite the fact that the penal code amendment specifically excluded actions involved in legal abortion and any “act” that was “aided, abetted, or consented to by the mother of the fetus.”
This would include the mother’s personal, voluntary drug use, according to CA Attorney General Xavier Becerra, who has joined the legal fight to free Chelsea Becker.
Kings County prosecutors have argued that the mother’s consent portion of the code was only meant to protect mothers who tried to carry out their own abortions, and to protect medical professionals under certain circumstances. It wasn’t intended to stop the justice system from — ever — prosecuting a mother for a fetus’s death.
AG Becerra agreed in an August 7 amicus brief filed in the Fifth District Court of Appeals on behalf Becker “that the text, purpose, and legislative history” of that section of penal code “demonstrate that a woman cannot be prosecuted for murder as a result of her own omissions or actions that might result in pregnancy loss.”
“The superior court erred in concluding otherwise,” Becerra wrote. “The Legislature’s purpose in adding the killing of a fetus to Penal Code section 187 was not to punish women who do not — or cannot, because of addiction or resources — follow best practices for prenatal health.”
Otherwise, women who delivered stillborn babies could potentially be prosecuted for murder for all kinds of activities, including smoking, overexercising, failing to keep up a healthy diet, dangerous driving habits, and avoiding medical care.
“The courts should not assume that the Legislature intended such a sweeping and invasive change to the criminal law affecting women’s lives without clear evidence of that intent,” said Becerra. “And such evidence is absent here.”
Becerra urged the CA justices to accept Becker’s petition for review, but the high court denied the request on December 23. This does not mean that Becker’s fight is over. “The Court merely postponed ruling on the question of whether the murder charge against Ms. Becker should be dismissed because the case was not procedurally ready for substantive review,” according to National Advocates for Pregnant Women, part of Becker’s legal team. “The Supreme Court typically only grants review of cases which are final and Ms. Becker’s case is not yet final.”
In another brief on Becker’s behalf, the ACLU argued that expanding the penal code’s definition of fetus murder to include Becker’s actions would enable that expanded interpretation to be applied retroactively, and would invade women’s privacy “by requiring unwarranted and extraordinary intrusion into the lives of pregnant women.”
And, by “criminally linking a pregnant woman’s conduct with the outcome of her pregnancy, this expansion would also create a liability so extensive, undefined, and unforeseeable as to make the statute void for vagueness,” the brief stated.
Pregnant women could also be deterred from getting medical care if they feared criminalization.
Moreover, Fagundes’s assertion that Becker’s pregnancy outcome was caused by her methamphetamine use is an “unfounded supposition,” according to Drs. Mishka Terplan and Tricia Wright, physicians with board certifications in obstetrics and gynecology and addiction medicine.
“Although much remains unknown about the effects of in utero methamphetamine exposure, no consistent teratological effects on the developing human fetus have been identified,” the duo wrote in a 2011 paper titled, “The Effects of Cocaine and Amphetamine Use During Pregnancy on the Newborn: Myth versus Reality.”
“Substance use disorders are medical conditions, not dangerous crimes,” Terplan and Wright wrote in a letter about Becker’s case.
Becker is the second woman Fagundes has tried to prosecute for murder after a miscarriage in the last several years. Adora Perez, whose drug use resulted in a stillbirth, is currently serving an 11-year sentence in the Central California Women’s Facility.
In three other cases since 1970, the ACLU has won the release of women with “almost identical” cases to those of Becker and Perez. “In each case, the court found that Section 187 could not be construed to criminalize a woman for her own actions that may have resulted in the death of her fetus,” the ACLU wrote. “In the wake of these decisions, the legislature could have chosen to amend Section 187 to reach women like Ms. Becker, but it did not do so. Instead, subsequent actions by the legislature demonstrate that California has unequivocally rejected a punitive response to the problem of drug-dependent pregnant women in favor of a treatment model.”
For now, Chelsea Becker remains locked up, as the coronavirus continues to slam prisons and jails, with bail set at $2 million.