Drug users delivering stillbirths could face murder rap if this California case advances

It sounds like a nightmare scenario for women’s rights in California. Every time a woman suffers a late-term miscarriage or gives birth to a stillborn baby, she could potentially become the target of a homicide investigation, with police visiting homes and delivery rooms to carry out interrogations.

Yet some medical and civil rights groups say that scenario is not so far-fetched if the murder prosecution of Chelsea Becker is permitted to proceed in a rural county of the San Joaquin Valley. They say it could judicially rewrite the state’s homicide statute, expanding it to apply to any pregnant woman whose conduct might have resulted in the loss of her pregnancy.

“These are potentially dangerous precedents which make all women who have any not-perfect pregnancy event criminally liable for that event,” said Dr. Mishka Terplan of UC San Francisco, an expert in the fields of pregnancy and addiction. “And that should terrify everyone.”

The Kings County district attorney maintains the prosecution is driven by law, not by politics.

“The conduct of the defendant resulted in the death of a fetus, which is a crime in California,” said Dist. Atty. Keith Fagundes, who declined interview requests and responded to questions only through emails.

Yet the controversy is playing out as antiabortion groups seek new laws and legal rulings to limit reproductive rights in many states, with California not separate from the fray.

Becker gave birth to Zachariah Joseph at Adventist Health Hanford in the early-morning hours of Sept. 10, 2019. He never had a pulse.

Becker had a history of methamphetamine addiction, and the coroner launched a criminal investigation after being contacted by hospital staff.

About a month and a half later, the district attorney’s office filed a complaint charging Becker, now 26, with murder. Authorities said an autopsy showed her child had toxic levels of meth in his system.

After a brief search that drew national news coverage, Becker was arrested Nov. 6. She remains imprisoned in the Kings County Jail in lieu of $2-million bail.

Her case has gained broad support from legal rights, medical and advocacy organizations. She has replaced a public defender with a team of high-powered attorneys provided by the National Advocates for Pregnant Women, which also launched a public relations campaign demanding her release.

Fifteen groups have signed on to a legal brief calling for the prosecution to be dropped. The American Civil Liberties Union also has submitted a brief, saying it has successfully defended women in California three times under nearly identical circumstances.

“People are up in arms about this,” said Mary Sylla, senior staff attorney with the Drug Policy Alliance, who helped prepare the brief signed by the American College of Obstetricians and Gynecologists and the American Academy of Addiction Psychiatry, among other groups. “It’s anti-woman. I can’t imagine another situation where we would be incarcerating somebody for something that would be as personally painful as losing a child.”

In comments relayed by her attorney, Becker said she was cautiously optimistic. “I’d like to be positive. I feel like [the case] should be dismissed because of how the legislation was written,” she said. “But this is Kings County and they do whatever they want here.”

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At the heart of the case is a 1970 revision to California’s murder statute that added a fetus as a potential victim.

Legislators made the change after the state Supreme Court overturned the murder conviction of a Stockton man who had beaten his estranged wife, causing her to deliver a stillborn baby. Subsequent amendments explicitly exempted abortions, as well as “any act resulting in the death of the fetus where that act was solicited, aided, abetted or consented to by the mother of the fetus.”

Kings County prosecutors have argued that the wording means a woman can be charged with the murder of her own unborn child, provided she did not seek a lawful abortion.

“The law does not exempt a late-term mother to do an act that results in death to her fetus,” Fagundes said.

California courts that have considered the issue have unanimously agreed that the murder law cannot be applied to a woman for killing her own fetus.

First there was Roseann Jaurigue, 36, of Gilroy, whose stillborn baby’s death in 1992 authorities blamed on cocaine use. Defense attorneys submitted an affidavit from former state Assembly Speaker Craig Biddle, the primary author of the 1970 amendment to the murder statute. He wrote that its sole intent was “to make punishable as murder a third party’s willful assault on a pregnant woman resulting in the death of her fetus.”

“No legislator ever suggested that this legislation, as it was finally adopted, could be used to make punishable as murder conduct by a pregnant woman that resulted in the death of her fetus,” Biddle wrote.

A San Benito County Superior Court judge ordered the charge dismissed.

A Justice Court in Siskiyou County made a similar ruling the following year, noting that state lawmakers considered bills in 1987, 1989 and 1991 that would allow drug-using mothers to be charged with child endangerment, manslaughter and a misdemeanor offense, respectively. Lawmakers rejected each measure.

The ACLU says it also represented Jackie Lynn Johnson of Contra Costa County in 1995 after she was charged with murder for allegedly using methamphetamine while pregnant. Prosecutors eventually dropped the case.

“The facts of the [Becker] case are strikingly similar to the cases that we brought in the past,” said Jennifer Chou, reproductive and gender equity attorney for the ACLU of Northern California. “It’s 30 years later, but we’re at a moment in time where there is increased attention to drug use, where there is heightened politicization of reproductive rights.”

If Becker’s case goes to trial, it will be the first time a California court has permitted the murder prosecution of a woman for acts she committed while pregnant that resulted in the loss of her child. “A woman could be charged with murder for jaywalking if that resulted in the end of her pregnancy,” Chou said.

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In a legal filing justifying the charge, prosecutors cited two research articles, saying they show it’s public knowledge “that a mother’s methamphetamine use can cause serious harm or death to a viable unborn child.”

That’s not true, said Dr. Barry Lester, an author of the articles, professor at Brown University’s Warren Alpert Medical School and director of the school’s Brown Center for the Study of Children at Risk.

“Let me put it this way: I can’t believe they read those articles and came to this conclusion,” said Lester, who has asked the prosecution to file a correction. “Because we didn’t even study the phenomenon.” His colleague, Dr. Donald DeRauf of the Mayo Clinic, also signed a statement saying the citations were inaccurate.

While the papers didn’t address the topic, the study on which they were based actually showed no higher incidence of death among babies who were exposed to methamphetamine than it did among a control group, Lester said.

“The main takeaway that we learned was that what these drugs seem to do is that they make a baby a little more fragile,” Lester said. “They don’t cause brain damage. They certainly don’t cause death. … Ultimately, it’s the interplay of the effects of the drug and the effects of the environment that determine the outcome of the kid.”

Other studies have come to similar conclusions, said Dr. Tricia Wright of UC San Francisco, a clinician and researcher who has written papers on meth use during pregnancy. Along with Terplan, she signed an affidavit calling for the case to be dropped.

“While [meth use] can be a risk factor for a stillbirth, it’s certainly not causative — any more than prosecuting someone for having diabetes during pregnancy, which can also increase the risk of stillbirth,” she said.

Fagundes said the research cited by his office “is largely irrelevant at this stage, because the medical findings in this case conclude that Zachariah C., the full-term fetus, had lethal levels by adult standards of methamphetamine in his blood.”

He also denied there were political undertones to the prosecution, calling himself “neither pro-life nor pro-death.”

The case has shone a bright spotlight on Fagundes. The lifelong Hanford resident and son of a Kings County supervisor was elected district attorney of the conservative-leaning county in 2014 after winning the backing of law enforcement associations.

In late April, the National Advocates for Pregnant Women launched a campaign urging people to contact the district attorney and tell him to dismiss the murder charge. Fagundes said that write-in campaign could be seen as an effort “to intimidate and influence a prosecution.”

The Kings County Superior Court sided with his office in early June, denying an application by Becker’s lawyers to dismiss the case. Judge Robert Burns said he found the 1993 affidavit signed by Biddle, which the defense team resubmitted as evidence, to be unconvincing.

The judge also said his reading of the state’s murder statute was in line with the prosecution’s.

The defense attorneys have taken their arguments to California’s 5th District Court of Appeal, which they’re asking to prohibit the lower court from continuing with the prosecution. They’re awaiting a response.

Becker was recently released into the Kings County Jail’s general population after having been placed in isolation when news of her case hit the papers in November. She said she’s found her fellow inmates to be “supportive and kind.” She’s also heartened by the support the case has received from advocates.

“I felt alone when I first got here,” Becker said. “But now I know that there are people who know I need and deserve help.”

If the charge is dismissed, advocates hope the ruling will bolster the case to free Adora Perez, 32, who is two years into an 11-year sentence at the state prison in Chowchilla.

The facts are nearly identical: Fagundes charged the Hanford woman with murder in 2018 after she gave birth to a stillborn baby at the same hospital where Becker had her stillbirth, with staff calling the coroner’s office. Perez was assigned the same public defender as Becker and appeared before the same judge.

Unlike Becker‘s, Perez’s case did not initially draw the attention of national news outlets or advocacy groups. Her counsel didn’t challenge the legality of the proceedings and Perez took a plea agreement, pleading no contest to a charge of voluntary manslaughter.

Weeks later, Perez was able to hire a private attorney, who filed a motion to withdraw the plea. But Judge Burns denied the motion and handed Perez a prison sentence. A court denied a subsequent appeal.

Fagundes defended the agreement, saying it “provides Ms. Perez with an ability to rehabilitate her life, and although she cannot bring her fetus back to life, she can be a better mother to her surviving children.”