Prosecuting pregnancy loss: Why advocates fear a post-Roe surge of charges

For Chelsea Becker, a fourth pregnancy at 25 years old was complicated from the start, challenged by her homelessness and an addiction to methamphetamine.

It ended in a stillbirth, a murder charge and more than 16 months behind bars in California.

"I was not prepared for that," said Becker, describing a "very traumatic, nightmarish experience" after she was arrested in 2019 and accused of murdering her unborn son at 38 weeks of pregnancy.

"At the end of the day, I'm the one that lives with the loss," she said of the baby she'd named Zachariah. "And that can only motivate me to do better."

Becker, who was released last year from Kings County Jail after the case was dismissed for lack of evidence, is speaking out for the first time to ABC News about her prosecution, as advocates nationwide warn that criminal charges for women who miscarry or have a pregnancy loss are poised to become a more common phenomenon after the Supreme Court overturned Roe v. Wade.

Thousands of American women every year experience pregnancy loss, according to government data. Experts say most miscarriages or stillbirths are unintentional and of unknown cause; but criminal investigations of pregnant women have been on the rise in some states, advocates say.

"These are not charges that we see every single day, but we know that they are increasing," said Dana Sussman, acting executive director of the National Advocates for Pregnant Women (NAPW), which supported Becker in her legal case.

"We expect more of these cases in a post-Roe world," Sussman said of the high court's decision ending constitutional protection of a woman's ability to terminate her pregnancy. "We think that prosecutors will feel more emboldened than they have been to police pregnancy."

Since 1973, there have been more than 1,700 pregnancy-related arrests or prosecutions in the U.S., according to NAPW. Most of those cases have occurred in the last 15 years -- with the vast majority taking place in states in the South and Central Plains.

Becker's case, in California's conservative Central Valley, offers a window into the controversial prosecutions, their potential impact on women and the motivations of local district attorneys who pursue them.

"The word 'fetus' is in our murder statute -- with the exception for abortion, but it had to be a therapeutic abortion under a doctor's care," said Kings County District Attorney Keith Fagundes, who approved the decision to charge Becker with murder in late 2019.

Section 187 of the California penal code defines murder as the "unlawful killing of a human being, or a fetus, with malice aforethought," or premeditated intent, with exceptions only allowed for lawful abortions or when "the act was solicited, aided, abetted, or consented to by the mother of the fetus."

Fagundes is the only California district attorney in the last 30 years to bring charges for a stillbirth under Section 187 -- and he did so twice.

"If these women were to inject their 1-day-old baby with a needle with these drugs, everybody would be up in arms," he said. "Not one judge has said this is legally deficient. I'm not reading the law wrong."

In 2018, Fagundes prosecuted Adora Perez, who is also from Becker's hometown and who was also addicted to meth during pregnancy. She pleaded guilty to manslaughter of a fetus and spent four years in prison before her 11-year sentence was later overturned.

"The goal was to get them clean," Fagundes said of the Perez and Becker cases. "We can't bring these dead babies back. We can't undo the harm they did to the other children that they've given birth to under drugs. But we can try to stop their conduct from moving forward."

The Kings County medical examiner said toxic levels of illicit drugs caused the death of the fetuses in both cases; but Becker's legal team argues that three unrelated infections were to blame and that there's no scientific evidence meth ends pregnancies.

"Addiction is a medical condition," said Dr. Mishka Terplan, a member of the American College of Obstetricians and Gynecologists' working group on pregnancy and addiction medicine. "Using drugs in pregnancy is rarely associated with a pregnancy loss, much less causally associated with that loss. Yet it's those falsehoods upon which some of these legal decisions rest."

In response to widespread public outcry over Becker and Perez, California's Attorney General Rob Bonta in January issued a non-binding legal alert to all 58 state prosecutors advising them to refrain from charging women with murder over a miscarriage or stillbirth because it was never the legislature's intent.

State lawmakers recently voted to amend Section 187 to make that clear, and Gov. Gavin Newsom signed the changes into law.

"I kind of just, like, ignored that I had a [drug] problem, and I felt like I was in control," Becker told ABC News of her addiction. "Looking back, I know that I was not obviously in control."

"But at what point does a woman have a right to say, like, 'Hey, this happened to me and this may have been an act that I contributed to, but this does not mean I intended for my child to die'?"

The pregnancy loss prosecutions are a tapestry of American tragedy.

In Oklahoma, Brittney Poolaw, 22, is serving four years in a state prison for manslaughter after miscarrying her child at around 15-17 weeks and admitting to methamphetamine abuse while pregnant. The medical examiner did not assign a cause of fetal death, but prosecutors blamed her drug use and a jury agreed.

Christine Taylor of Iowa was 22 years old when she was charged in 2010 with attempted feticide after falling down the stairs of her home following a heated argument with her husband. First responders said they had reason to believe she didn't want her baby. The child survived, and the charges were later dropped.

In New York, Jennifer Jorgensen was eight-months pregnant when she crashed her car into another vehicle in 2008, killing two people and harming her own fetus. She had an emergency cesarean section but the baby died six days later. Jurors convicted her of second-degree manslaughter in the death of her baby after prosecutors said she drove under the influence of a prescription drug and alcohol and wasn’t wearing her seatbelt.

But an appeals court tossed out her prison sentence, saying state lawmakers never intended to hold a pregnant woman accountable for unintentional harmful conduct.

"There are prosecutors who've told me that they see by their criminal intervention in those pregnancies, from their point of view, they are saving babies," said Michele Goodwin, a law professor at the University of California at Irvine and author of "Policing the Womb: Invisible Women and the Criminalization of Motherhood."

"Sadly, the canaries in the coal mine have basically been Black and brown women who've suffered," Goodwin said.

Marshae Jones was five months pregnant in 2018 when she was shot in the stomach during a fight in the parking lot of a store in Alabama. After she miscarried, a grand jury of her peers indicted her -- not the woman who fired the gunshot -- with manslaughter for allegedly putting her fetus in harm's way.

After an outpouring of national outrage, the local prosecutor reversed course and withdrew the charges.

"People who are at their very lowest point, especially women who have lost their children, feel that they're maybe at the point of no return. But, you know, I've been there and I returned," said Becker, who is now sober, holding a steady job and studying to obtain a degree in public health.

Advocates for pregnant women say heightening their concern about prosecutions is the proliferation of so-called fetal personhood legislation in the wake of the Supreme Court's decision on abortion, an effort that would extend the same legal rights to an unborn child as a living person.

At least 11 states already have broad personhood language under existing law which could be interpreted to cover fetuses, according to NAPW.

"Those laws can transform entire criminal codes and civil codes to apply in the context of pregnancy," said Sussman, the group's acting executive director. "Medical providers in states that are prosecuting pregnancy have been outspoken and said they don't want their patients prosecuted. It makes their jobs to serve their patients much harder."

For his part, the district attorney who charged Becker and Perez in California is unconcerned.

"We have [medical personnel] investigate child abuse. We have them investigate spousal abuse. We have them investigate mental health circumstances. They already have responsibility as citizens in our communities," he said.

While Fagundes considers the Becker and Perez prosecutions success stories from his tenure as DA, voters in Kings County chose in June not to give him another term, opting instead for his primary challenger, Sarah Hacker, who will become the first woman to hold the job when she's sworn in next year.

"To have a DA abuse his power and overcharge a case illegally for the sake of forcing women into custody is disgusting," Hacker said. "The voters in general disagree with the way that their current administration is prosecuting cases."

Becker's supporters consider the election results a small victory in their campaign for more compassionate treatment of pregnant women who lose their unborn children.

"I think that it's crucial to provide women with a sense of empowerment, and that begins with getting clean and having those resources available to them," Becker said. "It doesn't necessarily happen on the level of prosecution."