Chelsea Becker spent 16 years in California prison awaiting her murder trial. Her stillbirth had ended in an abortion. NPR reported that she was willing to stay for at least 15 years.
Becker’s 2019 arrest attracted national attention. Advocates warned that Becker’s arrest could lead to more prosecutions of pregnant women, given the fact that the Supreme Court blocked a Louisiana law that would have closed nearly all Louisiana abortion clinics.
A radically reconstituted Supreme Court has ruled on an anti-abortion bill aEUR” using a Mississippi law to repeal federally protected abortion rights. This was in less than three years. Advocates warn that pregnant women will face prosecution for miscarriage and stillbirths as well as pregnancy loss.
“What we’ve seen in cases where our legal defense was provided, mothers who have a stillbirth, or miscarriage, are blamed for that loss,” Dana Sussman (acting executive director) of the National Advocates for Pregnant Women, tells NPR.
Sussman states, “Because they behave or expose a alleged risk to the foetus, then they are blamed for causes of pregnancy loss.”
The trend towards prosecuting people for pregnancy loss has been quiet but steady across the country aEUR” to the point that organizations such as the NAPW were created to offer legal defense to those who have been accused of wrongdoing. This is how Sussman’s group came to represent Becker.
NAPW and Fordham University teamed up in 2013 to monitor pregnancies being arrested and prosecuted. From 1973 to 2005, they found nearly 400 cases in which pregnancy (including pregnancy loss) was involved in criminal investigations or prosecutions. However, this number almost quadrupled between 2006 and 2020. Sussman believes that 200-300 cases of pregnancy loss will be included in the ongoing research.
Legal experts are struck by one thing: States use laws to target pregnant women that were intended to protect them.
According to the National Conference of State Legislatures, at least 38 states have laws making it a crime for a woman to harm her fetus. According to legal experts, these laws were initially intended to prevent violence against pregnant women.
These “fetal harm laws” increase penalties for crimes against pregnant women. These laws treat a fetus like a separate victim of a crime, making it possible to recognize two distinct crimes committed against pregnant women. In practice, however, they are used to investigate and prosecute various forms of pregnancy loss such as stillbirths or miscarriages.
These fetal harm laws, along with other traditional murder laws, focus on fetal personhood. This is the anti-abortionist argument that the foetus has the same rights and protections as humans.
These laws are used to criminalize a pregnant woman’s conduct during their pregnancy. Now that federal abortion protections are no longer in effect, there is more potential for criminal charges against people who do or don’t do something aEUR while they are pregnant.
Becker’s case was that of a woman who had taken methamphetamine while pregnant. Becker admitted that she struggled with addiction while pregnant. California’s primary crime law makes it a crime in some circumstances to kill a foetus. However, the mother is exempted explicitly from prosecution.
The state claimed that Becker’s actions during her pregnancy led to her stillbirth. This reasoning is generally rejected by the medical community.
“There is no biological basis to that opinion, particularly with methamphetamine,” Dr. Harvey Kliman, director of Yale School of Medicine’s Reproductive and Placental Research Unit, says.
Kliman attributes the prosecution of pregnancy outcomes based upon drug use to a misunderstanding about pregnancy.
He says, “One must have something called biological plausibility.” “And methamphetamine does not have a biological pathway that can lead to the termination of a pregnancy. It doesn’t.
He claims that the health of the placenta determines the outcome of a pregnancy. There are no mechanisms to harm the placenta.
Kliman, who is an expert witness for NAPW in several cases, estimates that twenty percent of all pregnancies in America end in loss. Kliman claims that over 90% of these losses can be attributed to genetic abnormalities. These are often not diagnosed.
Sussman also stated that even though science doesn’t support it, data indicates that drug use is the leading cause of pregnancies deaths. Kliman claims that this is because pathologists and prosecutors misinterpret drug abuse as a cause, rather than a simple association.
People who use illicit drugs may not be the only ones facing criminal charges. Sussman says she has seen people prosecuted for using prescription drugs such as legal marijuana, painkillers to treat preexisting conditions or Adderall. This medication is commonly used for ADHD.
Sussman says, “We have had cases where a woman fell down a flight stairs while lightheaded during pregnancy. They charged her with attempted feticide because she suspected it was intentional.”
Yveka Pierre, senior litigation counsel at If/When/How is a nonprofit that provides legal defense to people accused of crimes arising from pregnancies.
Pierre cites Marshae Jones’ case in Alabama, where she was shot in the stomach and indicted in 2019 for manslaughter. She was five months pregnant when the incident occurred. Police claimed Jones was the one who started the fight that resulted in the shooting, and she failed to flee the danger. After a national outpouring of support, the district attorney dropped the charges.
Pierre tells NPR that when someone is trying to punish a group of people they can get creative with the methods they use to do so. Experts agree that pregnant women are at risk of legal confusion about what actions and inactions can be punished.
Pierre claims that, before the Dobbs-v. Jackson Women’s Health Organization decision last week overturned abortion rights, prosecutors could not accuse someone of an abortion. They would then charge them with murder. She adds, “But it is a murder case that’s kind-of imbued with the stigma of abortion.”
Pierre states, “So it is not an abortion case but they must be able to present to the jury that this person considered having an abortion or that this person took drugs to terminate their pregnancy, even if that does not have to do with what they need to prove.”
Sussman claims that the number of pregnancies lost cases was already on the rise under Roe’s protections. Legal experts predict that prosecutions will continue to rise now that abortion is no longer a constitutional right.
Sussman states, “Without Roe & Casey pushing back on the line regarding fetal person,” we are about to witness the full reimagination of criminal codes and civil codes in this nation in the states which have already defined fetuses, fertilized eggs and embryos either as children or as humans.” “Our data shows that there have been 1,700 cases of pregnancy loss since 1973, with a rapid acceleration over the past 15 year.”
Pierre acknowledges that Dobbs could lead to more criminal charges in the future for pregnancies, but she emphasizes that there are resources available.
Pierre states, “I want people to understand that just cause someone is being charged doesn’t mean the law supports that prosecution.” She points out state constitutions and case laws that can be used in defense. She also points out organizations like hers that help to highlight the many laws surrounding pregnancies.
Even if someone is able to hire a lawyer and mount an effective defense, it might be too late.
NAPW had already seized 16 months of Becker’s life when it succeeded in convincing a California judge not to bring Becker’s murder case against her. There are also other costs involved in fighting the criminal legal system.
People may be discouraged from seeking medical attention because of the criminalization of pregnancy loss and the involvement of medical providers in the investigation. Experts say this can lead to worse outcomes for mothers, babies, and pregnant women. Sussman cites Tennessee’s 2014 law on fetal assault, which was allowed expire two year later. Medical experts warned that this law discouraged women’s disclosures about their pregnancies.
Becker claims that her experience has discouraged her from having another child. Becker is motivated to advocate for reform measures so that no one else has to go through her experience. Becker, along with the NAPW submitted testimony to support a California bill which would partially remove the requirement for a coroner to investigate the deaths of known or suspected abortions.
