Fetal homicide law under scrutiny after Windsor Hills accident

Gutter votives, wilted sunflowers and a menagerie of immaculate stuffed creatures marked the blackened corner where Armani Lester’s life ended before he took his first breath.

Six bodies were recovered by the coroner from the August 4 crash site in Windsor Hills. Six murder charges have been filed against the driver of the Mercedes-Benz that crossed the intersection of La Brea Boulevard and Slauson Avenue. The violent collision was so violent, said Los Angeles County coroner’s spokeswoman Sarah Ardalani, that it ripped Armani from his mother’s womb.

Yet California law remains divided on how to count accident victims 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 murder,” a spokesperson for the Los Angeles District Attorney explained. “There is no similar provision for manslaughter.”

That’s why the driver, Nicole Lorraine Linton, 37, was charged with five counts for the crime. The registered nurse, who worked at Kaiser Permanente’s West Los Angeles Medical Center, was traveling over 90 miles per hour when she ran through a red light in Slauson and crashed into several cars.

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

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

But where does the distinction between the charges – six murders, five manslaughters – come from? And why would California, a self-proclaimed “State of Reproductive Freedom,” want to enshrine fetal murder in its homicide law?

The answer goes back to a 1970 law, written two and a half years before the Roe v. Wade decision and decades before the push for “fetal personality” by anti-abortion lawmakers. It was designed as a surrogate to protect pregnant women, who even today are twice as likely to die from violence as from hemorrhage or preeclampsia.

“There was never talk of a back door to the fetal personality,” said Michele Goodwin, a UC Irvine law professor and reproductive justice expert. “They were feminists trying to protect battered women.”

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

So California lawmakers rewrote the law. Three dozen other state legislatures followed suit.

In 2004, a California jury convicted Scott Peterson of second-degree fetal murder, which earned him the death penalty. That same year, the California Supreme Court ruled that murder of the fetus could be charged even in cases where the accused did not know the victim was pregnant, such as in crashes like the one in Windsor Hills.

Yet 50 years of “fetal protection” laws have done little to curb maternal homicide, which remains the leading cause of death among pregnant women in the United States. Instead, these laws are increasingly being used to prosecute women who suffer from stillbirths.

“These laws were passed in the name of protecting pregnant women from harm – from abusers, hit-and-runs, bank robbers – but the laws ended up being used against pregnant women themselves,” said said Farah Diaz-Tello, legal director of If/Quand/Comment, an Oakland-based nonprofit.

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 conduct 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 amplified by the war on drugs, amplified by the ‘welfare queen’ mythology – they got this idea that if women had stillbirths, they must have caused it themselves. It must have been a cigarette they were smoking; it must have been a Valium they took. We see this effort to make something look like science that isn’t.

Indeed, arrests and lawsuits for pregnancy loss have become more common in recent years.

“The abortion debate has presented this abstract idea that every pregnancy ends in a healthy baby. It’s not,” said Jill Wieber Lens, a law professor at the University of Arkansas and an expert in legal recognition and stillbirth treatment. “Twenty-four thousand stillbirths still occur each year in this country.”

Yet even in hardline anti-abortion states, prosecutions for fetal murder are relatively rare.

“I can’t name one murder prosecution for a stillborn in Arkansas, but I can name two in California,” the professor said.

Both of these cases were brought within the past five years by the same Central Valley prosecutor.

In 2018, Kings County Dist. Atti. Keith Fagundes has accused Adora Perez, then 29, of murder after she suffered a stillbirth at 37 weeks pregnant. He alleged that she had used methamphetamine, which resulted in the death of the fetus.

These allegations have never been proven and would not meet the legal standard of murder if they were, experts said. The Kings County prosecutor’s office did not return calls for comment.

At the request of his attorney, Perez did not contest manslaughter, a crime that does not exist for fetuses.

“The anti-abortion movement has invested in trying to reach out to district attorneys to advise them to prosecute in these spaces,” Goodwin said. “In the State of California, we must always be mindful: It’s not just what happens in the Legislature that impacts the lives of pregnant women; this is also what happens in prosecutors’ offices.

In 2019, Fagundes accused Chelsea Becker, 26, a mother of three, of the same crime after a stillbirth.

Becker’s case sparked national outrage and renewed scrutiny of the law.

“The purpose of the Legislature in adding the murder of a fetus to Section 187 of the Penal Code was not to punish women who do not follow – or cannot, because of dependency or resources – follow Best Practices in Prenatal Health”, California Atty. General Rob Bonta wrote in a June 2021 amicus brief on behalf of Perez. “A contrary interpretation would lead to absurd – and constitutionally questionable – results.”

In January, Bonta sent out a legal alert warning California prosecutors and law enforcement officials that “the state has no right to punish people for the outcome of their pregnancies.”

“The charges against Ms. Becker and Ms. Perez were not in accordance with the law, and this misuse of Section 187 should not be repeated,” Bonta said. “With reproductive rights 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 charges against both women were dropped. Fagundes lost its seat in an upheaval in early June.

But Becker spent more than a year in pretrial detention and Perez languished in prison for four years. For many, Roe’s fall against Wade, which protected a woman’s constitutional right to abortion, makes the threat of such lawsuits more real and the need to prevent them more urgent.

So California lawmakers are once again rewriting the law.

Assembly Bill 2223, expected to pass this month, would revise Section 187 of the criminal code to further protect pregnant women from prosecution. It would also limit death investigations in many cases of fetal loss.

“This bill just entrenches what is already state law,” said Assemblywoman Buffy Wicks (D–Oakland), sponsor of the bill. “It ensures that pregnant women cannot be sued for loss of pregnancy, whether it be abortion, miscarriage, stillbirth or perinatal death caused by something that happened in utero.”

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

“It provides an avenue of redress, which is essential,” Wicks said.

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

Still, some reproductive rights experts say California’s once groundbreaking law may have survived its use.

“These laws were passed in the name of protecting pregnant women, but we don’t have data to show that they’ve been effective,” Diaz-Tello said. “The offshoots … have been extremely harmful, but there has been no critical examination of whether they have achieved their original purpose.”

Los Angeles Times

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