California Law Doesn't Criminalize Stillbirths Even If Drug Use Is Contributing Factor: AG

California Attorney General Rob Bonta issued an alert Thursday to inform law enforcement that women should not be prosecuted for losing their fetuses, even if actions like drug use contributed to the loss.

This comes after two women in the state's Kings County used drugs like methamphetamine during pregnancy and were charged with "fetal murder" after having stillbirths.

Bonta said prosecuting women in these situations could have unwanted consequences, such as women suffering with addiction not seeking help when they get pregnant for fear of legal repercussions.

He also worried it could encourage investigating stillbirths and miscarriages, a traumatic event for many, when it is not warranted.

"It's an experience that should be met with an outreached hand, not handcuffs and murder charges," Bonta said.

Bonta added that manslaughter charges should also not be considered. However, he made no comment on charges like child endangerment.

California's murder definition is "the unlawful killing of a human being, or a fetus, with malice aforethought," excluding action that "was solicited, aided, abetted or consented to by the mother of the fetus."

The state's lawmakers amended the law in 1970 to include fetuses, but Bonta argued this was in the context of violence done to a pregnant woman resulting in the death of a fetus. He said a pregnant woman's actions were never meant to be included in the definition.

Rob Bonta, California, attorney general
California Attorney General Rob Bonta said pregnant women should not be prosecuted for stillbirths and miscarriages, even if their drug use contributed to losing the fetus. Above, Bonta speaks during a news conference outside an Amazon distribution facility on November 15, 2021, in San Francisco. Photo by Justin Sullivan/Getty Images

Most recently, Kings County prosecutors charged in 2019 that a woman's methamphetamine use led to the stillbirth and thus constituted murder. A judge dismissed the charges in May.

The loss of the woman's baby "was blamed, without scientific basis, on her consumption of a controlled substance," said Samantha Lee, a staff attorney with National Advocates for Pregnant Women that represented her.

A second woman is fighting her conviction after she was charged in 2017 on similar grounds. She pleaded guilty to manslaughter and was sentenced to 11 years in prison.

Bonta said that under his legal interpretation of California's murder statute, a pregnant woman cannot be prosecuted for the murder of an unborn fetus based on the outcome of her pregnancy.

Kings County Executive Assistant District Attorney Philip Esbenshade said the cases "are not about abortion nor women's reproductive rights in any way."

Bonta's alert "fails to include important and relevant specific facts" that show the woman who was charged in 2017 repeatedly used methamphetamine that "directly resulted in the death of a viable fetus," he said, noting that her plea deal was upheld on appeal.

Bonta said his interpretation also did not cover post-partum situations, like a Mendocino County woman convicted last year in the death of her newborn due to methamphetamine in her breast milk.

"But generally, California law does not criminalize pregnancy loss," he said.

The California Future of Abortion Council, made up of more than 40 abortion providers and advocacy groups, had asked Bonta to provide his interpretation of the law.

Both the text of Penal Code section 187 and the intent of the Legislature show that California laws do not criminalize a woman's own actions that might result in a miscarriage or stillbirth, he said.

Both are relatively common, he noted, citing statistics that one in 10 pregnancies are lost during the first trimester, while stillbirths occur in one in 160 deliveries.

Bonta was supported during an online news conference by Jodi Hicks, president and CEO of Planned Parenthood Affiliates of California, who decried prosecutions by "rogue district attorneys."

Farah Diaz-Tello, senior counsel and legal director for If/When/How: Lawyering for Reproductive Justice, said such prosecutions would disproportionately affect those on society's margins because of their race, poverty or immigration status.

The Associated Press contributed to this report.