Metropolitan News-Enterprise


Monday, August 10, 2020


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Attorney General’s Office Comes to Aid of Woman Charged With Infanticide

Proposed Amicus Brief Says Murder Statute Was Not Intended to Apply to Death of Fetus Caused by Mother’s Drug Use During Pregnancy


By a MetNews Staff Writer


The Office of Attorney General on Friday transmitted to the Fifth District Court of Appeal a proposed amicus curiae brief in support of a woman who is asking that the murder prosecution against her, based on her stillborn delivery of her child stemming from her use of methamphetamine during her pregnancy, be barred.

Penal Code §187 provides that “[murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Chelsea Becker is charged in Kings Superior Court with having killed her fetus through her drug use.

Arguing that the statute does not apply in the present circumstances, she filed a demurrer which Kings Superior Court Judge Robert Burns denied.

She filed a petition for a writ of prohibition in the Court of Appeal on July 2. A proposed brief signed by Supervising Deputy Attorney General Karli Eisenberg says:

“[T]he Legislature's purpose in adding the killing of a fetus to Penal Code section 187 was not to punish women who do not—or cannot, because of addiction or resources—follow best practices for prenatal health. Nor did it intend to punish women who might in desperation seek to end their pregnancies outside normal medical channels, as the district attorney acknowledged during the hearing.”

Rather, the brief asserts, §187 was amended to refer to a fetus in response to the California Supreme Court’s 1970 decision in Keeler v. Superior Court.

The petitioner in that case was charged with murder based on beating his estranged wife, who was pregnant by another man, causing severe injury to the head of the fetus, which was delivered stillborn. The high court said in an opinion by Justice Stanley Mosk (now deceased):

“In this proceeding for writ of prohibition we are called upon to decide whether an unborn but viable fetus is a ‘human being’ within the meaning of the California statute defining murder (Pen. Code, § 187). We conclude that the Legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.”

Eisenberg’s proposed brief asserts:

“There is simply no indication that the Legislature in amending section 187 desired to do more than close the disturbing loophole noted in Keeler.

“The superior court's contrary interpretation would lead to absurd—and constitutionally questionable— results….It would subject all women who suffer a pregnancy loss to the threat of criminal investigation and possible prosecution for murder. Whether a stillbirth or a miscarriage was due to drug use or some other reason, there is nothing in the statute that would constrain a district attorney's ability to investigate the most intimate aspects of the circumstances of a woman's pregnancy and to bring murder charges against that woman who suffered a pregnancy loss.


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