No other state does more to protect abortion access than California, and abortion seekers across the country are looking to California as a potential safe haven if and when the landmark abortion ruling Roe v. Wade is overturned by the U.S. Supreme Court. But Californians in Kings County have seen firsthand that, even in states where abortion is relatively unrestricted, reproductive justice is out of reach.
Kings County District Attorney Keith Fagundes has twice charged women who suffered stillbirths with “fetal murder.” The cases of Adora Perez and Chelsea Becker are receiving renewed attention in Fagundes’ re-election bid, but abortion rights advocates warn that Kings County is just the tip of the iceberg. For more than a decade, some states have sharply increased criminal investigations of pregnancy loss, including miscarriages, stillbirths and self-induced abortions. The fall of Roe will further embolden district attorneys across the country to criminalize pregnancy loss — even in places like Kings County where state law does not permit such prosecutions.
Conservative prosecutors are not only looking to incarcerate those seeking or providing abortions, they intend to also punish anyone who loses a pregnancy through miscarriage or stillbirth. Last month, a judge in San Joaquin Valley finally dismissed manslaughter charges against Adora Perez, who had been imprisoned for 4 years after delivering a stillborn child. Less than 48 hours after her traumatic loss, Perez’s doctors called the police, and she was booked into a jail in Kings County. Fagundes’ office charged Perez with murder, accusing her of killing her unborn child by using methamphetamine during her pregnancy. Perez spent four years in prison before her case was dismissed.
As horrific as this case is, Perez’s case flew under the national radar. Even with Roe in effect, which makes fetal personhood laws illegal, pregnant women have been prosecuted on the basis of fetal personhood laws for decades. National Advocates for Pregnant Women estimates that there have been over 1,700 cases between 1973 and 2020 in which someone has been criminalized on the basis of fetal personhood. Fetal personhood laws define a fetus as a person with rights. Lawyers have been assigned to represent fetuses before the women carrying the fetus are even aware that they have charges pressed against them. NAPW reports that 71% of the women prosecuted, the majority of them women of color, could not even afford lawyers themselves.
Adora Perez was not the last woman who suffered pregnancy loss to be charged with murder by the Kings County DA. In 2019, Chelsea Becker was charged with homicide by Keith Fagundes, who claimed that her methamphetamine use was the direct cause of her stillbirth. However, doctors say there is no evidence that methamphetamine use causes pregnancy loss. Becker spent 16 months behind bars before a judge dismissed the charges against her. Cases like those of Perez and Becker are alarming because they bring a heightened level of surveillance and law enforcement to the realm of pregnancy. A stillbirth is no longer just a tragic loss; it is something that has the possibility to be “suspicious” and warrant criminal investigation.
Different states have different definitions of murder. California defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” The word “fetus” was included to allow prosecution in situations where a fetus might be stillborn due to violence from domestic abuse. Cruelly, the Kings County district attorney twisted this law to put two women behind bars, even though the California Attorney General has said that the definition should only be used in cases where pregnancy loss is caused by a third party. Fagundes, who has called himself the “voice of that fetus,” exemplifies the ways a rogue prosecutor can use his position to punish certain women for pregnancy loss and produce a massive chilling effect, even when such prosecutions are illegal. Fagundes’ actions forced the California Attorney General Rob Bonta to issue a statewide alert in January advising law enforcement officials on how to interpret state law. Fagundes responded by threatening to refile cases against Becker and Perez.
The California Legislative Women’s Caucus released a 13-bill package in March seeking to strengthen and expand abortion access. The package includes a law designed to protect women like Becker and Perez. AB-2223 would ensure that no one in the state of California will be investigated, prosecuted or incarcerated for ending or losing a pregnancy. Becker wrote in support of the bill explaining, “My experience with the justice system in Kings County was detrimental to my mental health, and I feel that I was failed deeply. If this bill is passed, it would prevent other people from experiencing what I did in being prosecuted and punished for something that could have happened to anybody. I hope that in the future, no woman will ever be prosecuted for losing a pregnancy.” The fight against the criminalization of pregnancy is a key arena for struggle, especially with the anticipated overturning of Roe v. Wade. An estimated 15-30% of pregnancies end in pregnancy loss. Reactionary DAs like Fagundes must not be allowed to criminalize, traumatize and punish women for a common — and sometimes physically and emotionally difficult — pregnancy outcome.
Like the cases in Kings County, most fetal personhood prosecutions are against women who are accused of directly killing their unborn fetus through substance use. These criminal investigations disproportionately impact young women, Black and brown women and poor women. These charges can be made even after a baby is born perfectly healthy. The imminent overturning of Roe further exacerbates gender inequality by forcing women to give birth and terrorizing and criminalizing even those who face the loss of wanted pregnancy.
What does it say about a society that incarcerates people in inhumane conditions, supposedly to protect a fetus? The right-wing forces possess no solutions to aid in the root causes of addiction or pregnancy loss. If they really wanted to change things, they would invest in harm reduction programs and provide family planning resources. Women with substance use disorders are in need of care, not incarceration. In a post-Roe world, pregnancy can be criminalized no matter the outcome. Criminalizing pregnant people is antithetical to life itself; having the right to privacy and choice over what happens to one’s own body is fundamental to a society where children can be born safely and with dignity.
The right to abortion is critical to gender equality. We must stop the weaponization of laws that were meant to protect women. The right-wing’s solution to “reckless” behavior while pregnant is actually more dangerous to the mother as well as the child yet-to-be-born. All people must have the right to bodily autonomy and reproductive choice.