Adora Perez was charged with murder in 2018 after she delivered a stillborn baby at Adventist Hospital in Hanford, California. District Attorney Keith Fagundes claimed, without scientific basis, that the stillbirth was caused by methamphetamine use. Penal Code Section 187 punishes the “unlawful killing of a human being, or a fetus, with malice aforethought.” Despite the fact that the law itself states it cannot be used to prosecute the “mother of the fetus,” the district attorney pursued the prosecution. Ms. Perez’s court-appointed counsel failed to challenge the legitimacy of the prosecution and instead encouraged her to plead guilty to manslaughter of a fetus (an offense that also does not exist in California law). She is currently serving an 11-year sentence.
In the spring of 2020, pro bono attorneys working with the ACLU of Northern California and Pregnancy Justice offered to take on Ms. Perez’s case. On October 21, 2020, Matthew Missakian, Mary McNamara, and Audrey Barron filed an application to recall the judge’s order denying Adora’s appeal — which would allow her to re-appeal her conviction. The ACLU of Northern California and the Drug Policy Alliance filed amicus briefs in support. And then-Attorney General Xavier Becerra took the unusual step of filing a non-opposition letter, signaling his disapproval of the local DA’s decision to prosecute Adora and his own intention not to contest her case if it were reopened at the appeal level.
Although California’s Attorney General Rob Bonta has emphatically expressed his support of Adora, filing documents in support of her case in both the California Supreme and Kings County superior courts, the Supreme Court has denied Adora’s request to reopen her appeal. Her final hope hinges on a writ of habeas corpus filed in the local trial court. On February 16, 2021, her attorneys filed a petition for habeas corpus in the Kings County Superior Court, the trial court in Hanford, California where Ms. Perez was initially charged and sentenced. On September 20, 2021, the parties received an order from a newly-assigned judge, Judge Valerie R. Chrissakis seeking additional briefing on a series of legal questions from Ms. Perez’s counsel, the district attorney, and amici.
Pregnancy Justice leapt at the chance to articulate the legal and practical implications of this case. We are joined by the National Perinatal Association, FASD United, Dr. Tricia E. Wright, MD MS FACOG DFASAM, and Dr. Hytham Imseis, MD, who are leading non-profit advocacy organizations, individual physicians, and medical associations concerned with the health and rights of pregnant people and all people who have the capacity to become pregnant, as well as their children and families.
Our brief focuses on the fact that for the past 50 years (with the exception of Ms. Perez and Chelsea Becker), every California court to address this issue has rejected any attempt to apply Section 187 to pregnant women for experiencing a pregnancy loss.
The California Legislature has consistently refused to adopt any criminal law that would penalize a woman for being pregnant and using a criminalized drug, recognizing—as every leading medical and public health organization to address the subject has articulated—that punitive responses to drug use and pregnancy are detrimental to pregnant people and families’ health.
Finally, the research does not support the district attorney’s claim that methamphetamine causes stillbirth, or that methamphetamine poses risks of harm different in kind or magnitude from other activities and exposures during pregnancy.
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