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Fetal homicide law scrutinized after Windsor Hills crash

Drained hurricanes, withered sunflowers, and a menagerie of immaculate stuffed creatures marked the blackened corner where Armani Lester’s life ended before he drew his first breath.

Six bodies were found by the coroner at the August 4 crash site in Windsor Hills. Six murder charges have been filed against the driver of the Mercedes-Benz that sped through the intersection of La Brea and Slauson Avenues. The fiery collision was so violent, said LA County Coroner’s spokeswoman Sarah Ardalani, that it ripped Armani from his mother’s womb.

However, California law remains divided over how accident victims are counted and what defines justice for pregnant women whose babies die before birth.

“Under state law, the unlawful killing of a fetus may be charged with homicide,” said a spokesman for the LA District Attorney. “There is no similar provision for involuntary manslaughter.”

As a result, the driver, Nicole Lorraine Linton, 37, has been charged with five counts of the crime. The nurse, who had been working at Kaiser Permanente’s West Los Angeles Medical Center, was speeding at more than 90 miles per hour when she ran a red light and crashed into several cars in Slauson.

The crash killed pregnant 23-year-old Asherey Ryan and the boy, posthumously named Armani, who was barely a month shy of his due date. Ryan’s 11-month-old son Alonzo Quintero was also claimed; her boyfriend Reynold Lester; and best friends Nathesia Lewis, 43, and Lynette Noble, 38.

Linton is being held without bail at the Century Regional Detention Center.

But where did the distinction between the charges – six murder, five manslaughter – come from? And why would California, a self-proclaimed “state of reproductive liberty,” want to include fetal murder in its homicide statute?

The answer dates back to a 1970 law written two and a half years before the Roe vs. Wade decision and decades before anti-abortion lawmakers pushed for a “fetal personality.” It was designed as a proxy to protect pregnant women, who today are still twice as likely to die from violence than from hemorrhage or preeclampsia.

“This was never about a backdoor into the fetal personality,” said Michele Goodwin, a UC Irvine law professor and reproductive justice expert. “These were feminists trying to protect abused women.”

In 1969, an Amador County man chased and brutalized his pregnant ex-wife, kicking her in the stomach so hard that he left heel marks. The baby was born dead just hours after the attack, her skull badly fractured. The man was charged with murder, but the California Supreme Court overturned the charges and ruled that the common law defines a “human” as one who was born alive.

So the California legislature rewrote the law. Three dozen other state parliaments followed suit.

In 2004, a California jury convicted Scott Peterson of second-degree fetal murder, helping to earn him the death penalty. That same year, the California Supreme Court ruled that murder of a fetus could be charged even in cases where the defendant was unaware the victim was pregnant, such as in accidents like the one at Windsor Hills.

But 50 years of fetal protection laws have done little to curb maternal homicide, which remains the leading killer of pregnant women in the United States. Instead, such laws are increasingly being used to prosecute women who suffer stillbirths.

“These laws were passed in the name of protecting pregnant people from harm — from abuse, hit-and-run traffic, bank robbery — but the laws ended up being used against pregnant people themselves,” said Farah Diaz-Tello, legal director of If/Wann/How, a nonprofit Oakland-based reproductive rights organization.

A recent study by the National Advocates for Pregnant Women documented more than 1,700 cases nationwide between 1973 and 2020 in which women were criminalized for their behavior during pregnancy or its outcome.

“What we saw in the ’80s and ’90s was a perfect storm of the anti-abortion movement and just plain racism and cruelty,” Goodwin said. “Prosecutors were enthralled by the war on drugs, by the mythology of the ‘queen of welfare’ – they came up with the idea that if women had stillbirths, they must have caused them themselves. It must have been a cigarette they smoked; it must have been a valium they took. We see this effort to make something look like science that isn’t.”

In fact, arrests and prosecutions for miscarriages have become more common in recent years.

“The abortion debate has presented this abstract idea that every pregnancy ends in a healthy baby. It doesn’t,” said Jill Wieber Lens, a law professor at the University of Arkansas and an expert on the legal recognition and treatment of stillbirth. “There are still 24,000 stillbirths in this country every year.”

But even in staunch anti-abortion groups, fetal murder charges are relatively rare.

“I can’t cite a single case of stillbirth homicide in Arkansas, but I can cite two in California,” the professor said.

Both cases have been brought by the same Central Valley prosecutor for the past five years.

In 2018, Kings County Dist. atty Keith Fagundes charged Adora Perez, then 29, with murder after she suffered a stillbirth at 37 weeks pregnant. He claimed that she used methamphetamine, which led to the death of the fetus.

Those allegations have never been proven and would not meet the legal standard for murder if they had, experts said. The Kings County Attorney’s Office did not respond to requests for comment.

At the urging of her attorney, Perez pleaded no plea to manslaughter, a crime that does not exist for fetuses.

“The anti-abortion movement has invested in trying to reach prosecutors to advise them to prosecute in these spaces,” Goodwin said. “In the state of California, we should always be aware that it’s not just what happens in the legislature that affects the lives of pregnant people; This also happens in the prosecutors’ offices.”

In 2019, Fagundes accused 26-year-old Chelsea Becker, a mother of three, of the same crime after giving birth.

Becker’s case sparked national outrage and a re-examination of the law.

“The goal of the legislature in including the killing of a fetus under Section 187 of the Criminal Code was not to punish women who cannot — or because of addiction or resources — follow prenatal health best practices,” California Atty said. General Rob Bonta wrote on behalf of Perez in a June 2021 amicus brief. “An opposite interpretation would lead to absurd – and constitutionally questionable – results.”

In January, Bonta sent out a legal alert warning prosecutors and law enforcement officials in California that “the state is forbidden from punishing people for the outcome of their pregnancy.”

“The charges against Ms. Becker and Ms. Perez were not in accordance with the law and this abuse of Section 187 should not be repeated,” Bonta said. “As reproductive rights are under attack in this country, it’s important that we make it clear: Here in California, we do not criminalize pregnancy loss.”

In the months that followed, Perez’s conviction was overturned and the charges against both women were dropped. Fagundes lost his seat in a commotion in early June.

But Becker spent more than a year in custody, and Perez languished in prison for four years. For many, the Roe vs. Wade case, which protected a woman’s constitutional right to have an abortion, makes the threat of such prosecutions more real and the need to prevent them more urgent.

So California lawmakers are rewriting the law again.

Assembly Bill 2223, expected to be passed this month, would revise Section 187 of the Criminal Code to further protect pregnant people from prosecution. It would also limit death investigations in many cases of fetal loss.

“This law really just enshrines what is already state law,” said Assembly Member Buffy Wicks (D-Oakland), the sponsor of the bill. “It ensures that pregnant women cannot be prosecuted for miscarriage, whether it be an abortion, miscarriage, stillbirth or perinatal death due to something that happened in the womb.”

The bill would allow those wrongfully prosecuted under the law to sue.

“It provides a fallback path, which is critical,” Wicks said.

The measure would not affect cases like the Windsor Hills crash, where violence inflicted on a pregnant person results in the death of the fetus. Nor would it legalize infanticide, as critics have claimed.

Still, some reproductive rights experts say the once groundbreaking California law may have survived its application.

“These laws were made in the name of protecting pregnant people, but we have no data that they were effective,” Diaz-Tello said. “The effects…were extremely damaging, but it was not critically examined whether they achieved their original objective.”

https://www.latimes.com/california/story/2022-08-17/after-windsor-hills-crash-californias-controversial-fetal-homicide-law-is-back-in-the-spotlight Fetal homicide law scrutinized after Windsor Hills crash

Alley Einstein

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