For more than nine months, five of them during a global pandemic, a 26-year-old woman named Chelsea Becker has been sitting in Kings County Jail, under a $2 million bail, for giving birth to a stillborn baby.
Becker has been there since November, when police arrested her and prosecutors charged her with murder. The District Attorney argued that Becker’s methamphetamine addiction had caused the stillbirth, citing a 50-year-old law that civil rights advocates say was never supposed to apply to pregnant women. It has put Becker at the heart of a national debate over criminalizing fetal death.
On Friday, however, California’s Attorney General Xavier Becerra intervened. In an amicus brief to end the case against Becker, Becerra argued the prosecution’s legal interpretation would lead to “absurd—and constitutionally questionable—results.”
“We believe the law was misapplied and misinterpreted,” Becerra said in a statement about the brief. “Our laws in California do not convict women who suffer the loss of their pregnancy, and in our filing today we are making clear that this law has been misused to the detriment of women, children, and families.”
Back in September, Becker, then 25, was eight and a half months pregnant when she thought her water broke, only to discover it was blood. Becker’s mother called an ambulance to her home in the San Joaquin Valley, according to The Los Angeles Times. Three hours later, Becker gave birth in Adventist Health Hanford hospital to a boy with no pulse, whom she had planned to name Zachariah.
Suspicious that the fetus suffered from drug exposure, hospital employees alerted the Kings County Medical Examiner’s Office, which conducted an autopsy. The exam found methamphetamine in the fetus’ system, a Times report states, that amounted to more than five times the level thought to be toxic. They ruled the case a homicide.
Becker had grown up in Hanford, a working class town in Kings County, that serves as a trading hub in the agrarian San Joaquin Valley. The nearly half Hispanic town recently made headlines when 183 meatpacking workers came down with COVID-19. According to the Census Bureau, 18 percent of residents live below the poverty line. Before the pandemic, county unemployment levels hovered at 7.9 percent—they have since soared to 14.6 percent.
Becker told the Times that as a teen, she spent some time living with her father in Minnesota, where she became addicted to methamphetamine. She came home to Hanford at 19, where she had two other children, both of whom were removed from her care.
In early November, prosecutors charged Becker with murder, holding the mother on a $5 million bail, later reduced to $2 million. Their case hinged on an amendment, passed in 1970, to the state’s murder statute: Penal Code section 187. Earlier that year, the California Supreme Court had overturned the murder conviction of man who had assaulted his pregnant wife, causing the death of their fetus. The code, the court had concluded, only addressed the killing of “a human being,” making the man ineligible for a murder charge. In response, the legislature amended the statute to include the “unlawful killing” of a “fetus.” That was the language prosecutors seized on to charge Becker with murder.
“The conduct of the defendant resulted in the death of a fetus, which is a crime in California,” said District Attorney Keith Fagundes told The Los Angeles Times. He did not respond to The Daily Beast’s request for comment on Saturday.
At her arraignment, Becker pleaded not guilty, and later filed a motion calling the code’s application to a pregnant woman unconstitutional. The amendment had been made to protect victims of domestic violence, Becker’s lawyers argued, not criminalize women who miscarried, had stillbirths, or sought abortions. “Penal Code 187(b)(3) by its own plain terms,” they wrote, “precludes the prosecution of a woman for the consensual acts in which she may engage while pregnant.”
Becker’s attorney, Roger Nuttall, and Becerra did not immediately return requests for comment.
“Ms. Becker had experienced a stillbirth that the prosecutor claims (without scientific basis) was caused by her methamphetamine use during pregnancy,” the National Advocates for Pregnant Women wrote in a statement on Becker’s case. “Ms. Becker was charged with this crime despite the fact that §187 does not authorize, nor has it ever been interpreted to authorize prosecution of a woman in relation to her own pregnancy or any outcome of a pregnancy.”
In the decades since 1970, California prosecutors have tried to charge women for stillbirths, but none has secured a conviction until 2018, when another woman was arrested for the same crime in the same town of Hanford.
Like Becker, Adora Perez was in her late 20s and addicted to methamphetamine when she gave birth to a stillborn baby at Adventist Health. Also like Becker, hospital employees alerted the Medical Examiner’s Office when the fetus tested positive for the drug, according to reports in The Fresno Bee.
Fagundes charged her with murder. Perez, however, took a plea deal. Now 32, she is serving an 11-year sentence in state prison for voluntary manslaughter—the first time in decades that a charge of this kind ended in jail time.
The unprecedented charges against Becker and Perez have alarmed pregnancy advocates, medical professionals, drug policy organizations, and civil rights groups across the country. In April, the American Civil Liberties Union filed an amicus brief in support of Becker. The same day, a coalition of 15 organizations, from the Drug Policy Alliance to California Latinas for Reproductive Justice, filed another.
“Broadly accepted medical, public health, and scientific evidence supports the Legislature’s drafting of the statute to avoid criminalizing women with respect to their pregnancies,” the coalition wrote. “Pregnancy and use of controlled substances is a medical and public health issue, not an issue that should be subject to state intervention and control.”
Attempts to criminalize pregnant women who suffer from addiction have backfired in the past. In 2014, Tennessee passed a wildly controversial bill, attempting to target what they called “fetal assault.” The bill allowed prosecutors to bring charges against women with drug addictions, if their fetuses were born still or disabled. It proved so polarizing that it was given a two-year trial phase and then, in 2016, deemed a failure and discontinued. “As a result of the law,” the National Advocates for Pregnant Women wrote in a statement, “women steered clear of prenatal care and drug treatment and avoided delivering their babies in hospital settings.”
Nevertheless in June, the superior court denied Becker’s motion to have the case declared unconstitutional. The next month, she filed a writ of prohibition––a motion to stop the court proceedings––arguing that “a woman cannot be prosecuted for murder as a result of her own omissions or actions that might result in pregnancy loss.” In his amicus brief on her case, Becerra agreed: “The superior court erred in concluding otherwise.”
“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,” Becerra wrote. “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. And such evidence is absent here.”