In summary

A Central Valley district attorney is defying the attorney general with his plan to pursue a new murder charge against a woman who used methamphetamine and delivered a stillbirth.

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A Central Valley district attorney has vowed to refile a murder charge against a woman whose case drew national attention for its possible implications for abortion rights, but the woman’s advocates believe the charges will never actually materialize. 

Adora Perez was freed in March after nearly four years in prison on a guilty plea to manslaughter after she delivered a stillbirth while testing positive for methamphetamine. 

On Monday, Kings County District Attorney Keith Fagundes dropped the remaining charges against her. Abortion rights proponents – including Attorney General Rob Bonta – celebrated the decision.

But Tuesday morning, Fagundes told CalMatters in a text message that he intends to refile charges against Perez – standard language for a prosecutor after dismissing charges without prejudice, meaning the charges can be refiled again later.  

“The matter was dismissed without prejudice as we intend to refile,” Fagundes said. “Ms. Perez was put on notice today to maintain any exculpatory evidence she believes exists.”

Fagundes believes he has a right to file the murder charges under existing California law. Perez’s attorneys and Bonta disagree, contending that current law forbids such prosecutions. 

But Fagundes has said in debates this year during his third run for office that a proposed law, AB 2223, would be the mechanism to prevent prosecutions of this kind. 

“If a mother can’t be prosecuted for the death of her fetus, then why pass AB 2223?” Fagundes said in an April 8 debate, according to the Valley Voice. 

AB 2223, by Oakland Democrat Buffy Wicks, would abolish the requirement that coroners investigate stillbirths. Proponents of the law say this would lead more people to seek prenatal care without fear of prosecution. 

Under current law, all fetal deaths at or after 20 weeks, with the exception of abortions, are treated as “unattended deaths” in California, requiring a coroner to investigate. In 48 of 58 California counties, the sheriff is also the coroner, which means that law enforcement becomes involved and the person who is pregnant could face potential prosecution.

Perez’s story drew national attention for her rare plea in 2018 to manslaughter of a fetus – a charge that doesn’t exist in California law. Abortion rights advocates believe her case has broad implications for abortion access in California, potentially opening the door to criminal prosecutions of people seeking to terminate pregnancies.

A draft U.S. Supreme Court majority opinion recently published by Politico suggests justices are poised to strike down Roe vs. Wade, the landmark 1973 ruling that guaranteed the federal constitutional right to an abortion.

Fagundes’ statement that he plans to refile charges flies in the face of a directive from Bonta in January. The attorney general advised prosecutors, defense attorneys and police not to participate in criminal cases against mothers who miscarry or deliver a stillbirth.

“The loss of a pregnancy at any stage is a physically and emotionally traumatic experience that should not be exacerbated by the threat of being charged with murder,” Bonta said at the time. 

Bonta’s office said Tuesday that they will contest future charges if they’re filed.

“As we’ve previously made clear in our legal alert, California law does not criminalize people for the loss of a pregnancy,” the attorney general’s office said in a statement. “The DA moved to dismiss the charge and the court dismissed.

“Should further action be necessary in the Perez case, we’re prepared to continue to weigh in where appropriate.”

Perez’s attorney, Mary McNamara, said on Tuesday that she doesn’t believe Fagundes will actually refile charges, and said the passage of AB 2223 would convince him that he cannot file murder charges against women who deliver stillbirths.

“I don’t think he’s going to refile, and his view is he’s not going to refile,” McNamara said. “We all agree AB 2223 would prevent this prosecution. The difference is, Bonta’s office and our (legal) team believe current law also prevents this kind of prosecution.” 

Across the entire state in the last three decades, Fagundes is the only prosecutor who has charged women who miscarry with murder. 

The debate over AB 2223 drew hundreds of anti-abortion activists to the Capitol in April when the bill cleared the Assembly Health Committee. 

Fagundes has previously told CalMatters that he will continue to file murder charges against people who miscarry or deliver stillbirths and test positive for drugs if he feels the cases warrant prosecution. 

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Nigel Duara joined CalMatters in 2020 as a Los Angeles-based reporter covering poverty and inequality issues for our California Divide collaboration. Previously, he served as a national and climate correspondent...