Valley DA, Calif. AG Bonta go toe-to-toe over “fetal murder”

California’s Attorney General and the Kings County District Attorney have engaged in a lengthy battle over charging women who contributed to the death of a fetus.

Prosecutors should not charge women with murder when a fetus dies, even if their behavior may have contributed to the death, California’s top law enforcement official said Thursday.

Attorney General Rob Bonta acted after prosecutors in the San Joaquin Valley’s Kings County twice charged women with “fetal murder,” alleging their drug use led to stillbirths. He issued a statewide alert intended to advise law enforcement officials on how to interpret state law.


Prosecutions in Kings County

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.

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. He said lesser included charges such as manslaughter also do not apply in such cases.

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

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 limited his legal interpretation to California’s murder statute and wouldn’t say if other charges like reckless endangerment or child endangerment might be merited in some circumstances. He 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.

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