With the backing of abortion advocates in his state, Democratic California Attorney General Rob Bonta has instructed law enforcement not to charge women with murder or manslaughter after their babies die during pregnancy or birth, even in cases where the mother's actions contributed to the baby's death.
What are the details?
In a statewide alert issued Thursday, Bonta offered guidance on how state law enforcement officials — including district attorneys, police chiefs, and sheriffs — should interpret state law regarding fetal death.
The alert came after two women in Kings County were charged with "fetal murder" after using drugs like methamphetamine during pregnancy, resulting in their babies' stillbirths. A stillbirth is generally defined as the death of a baby after roughly 20 weeks of pregnancy through delivery.
In the alert, Bonta argued that under his interpretation of California law, a pregnant woman should not be charged with murder or manslaughter, though he made no comment about lesser charges such as child endangerment.
According to the Associated Press, Bonta said he issued the alert at the request of the California Future of Abortion Council, a contingent of more than 40 abortion providers and advocacy groups in the state. Some of the abortion advocates were present alongside Bonta as he announced the news during a Thursday press conference.
At the press conference, the attorney general further argued that fetal death is "an experience that should be met with an outreached hand, not handcuffs and murder charges." He also suggested that harsh prosecution could cause women suffering from addiction not to seek help when they get pregnant for fear of legal consequences.
Under California law, murder is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." In 1970, state lawmakers broadened the definition to include fetuses, though Bonta argued Thursday that it was in the context of "criminalize[ing] only third-party violence against pregnant persons resulting in fetal death," not "to extend criminal liability to pregnant persons."
In response to Bonta's announcement, Philip Esbenshade, Kings County's executive assistant district attorney, argued that the two cases in question "are not about abortion nor women’s reproductive rights in any way."
He added that the attorney general's alert “fail[ed] to include important and relevant specific facts” about a 2017 case that showed the mother's repeated methamphetamine use “directly resulted in the death of a viable fetus."
In that case, the mother reportedly pleaded guilty to manslaughter and was sentenced to 11 years in prison. Esbenshade noted that her conviction was upheld on appeal.
In the other case, a woman was charged with murder after prosecutors similarly argued that her methamphetamine use directly resulted in her child's death. A judge reportedly dismissed those charges in May, however.