Last week, a California court ruled that a murder prosecution can proceed against a 19-year-old Kings County woman, Chelsea Becker, who had a still birth after using meth during her eighth month of pregnancy. While that would seem to be a common sense ruling, it’s not that simple.
Back in the early ’90s my office attempted to prosecute a woman for child abuse who was smoking crack while pregnant. A court dismissed the charges on the ground that the fetus was not yet a child who could be abused. That was Florida law at the time.
At English common law, a fetus was not considered a “human being” until it was “born alive”. Referred to as the “born alive rule” (BAR), it was the basis for the distinction between murder, and “destruction of a child” which was the charge made against women who had abortions.
The common law derived from Catholic canon law, which in turn was adopted from the Greek “legal philosophy” distinction between a viable and non-viable embryo.
“[W]hen couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation.”
— Aristotle, Politics 7.16
The obvious open question then, and now, is the point of viability. At the time the BAR was adopted, medical science was unable to determine when an embryo or fetus was viable (the point at which the “child” can survive without a living mother), being born alive was the obvious point of demarcation. The BAR sought to resolve the viability question by drawing what seems to be an easily identifiable bright line: live birth.
But even ‘live birth’ is not clearly definable. Does it occur when the woman begins labor pains; or when she fully dilates; when the baby “crowns” ( the top of the head begins to emerge); or when it takes its first breath? And what about Caesarean births?
To avoid these thorny issues, we Americans rejected the European BAR, and adopted our own ‘common law’ distinction.
“[A] distinction was made between two different offenses: first, an offender who harmed a fetus that was later born alive and died after birth can be prosecuted for the death of a human being; and second, an offender who caused the death of a fetus that was later born dead, it was decided that it is possible to be satisfied, in terms of evidence, that the fetus has human life by proving it reached the quickening phase, and subsequently to prosecute the offender for putting a fetus to death, which was a less severe offense than the killing of a human being.” (‘Quickening’ occurs when the mother first feels the fetus moving.)
But the common law can be modified, and even abrogated, by ‘positive law’ (enacted statutes) which California, and all other States, have done.
In California, “murder” is specifically defined to include “[T]he unlawful killing of a … fetus, with malice aforethought.” CA PENAL § 187. Killing of a fetus was added to the definition of murder, in 1970, by the California legislature in response to a state supreme court ruling that a man could not be prosecuted under the common law for murder after intentionally killing his wife’s fetus. But Section 187, goes on to state the definition of murder excludes, “The act was solicited, aided, abetted, or consented to by the mother of the fetus.” That’s why abortion does not fall within the definition of murder in California.
Though Chelsea Becker never claimed she ingested meth to abort the fetus, she relied on the abortion rationale, “that Section 187 could not be construed to criminalize a woman for being pregnant and allegedly taking some action that resulted in the termination of her own pregnancy” to claim in court (apparently unsuccessfully) that because she ingested the meth voluntarily, she can’t be guilty of murder.
Though I support a woman’s right to abortion, intellectual honesty compels me to acknowledge that cases like Becker’s are the inevitable unpleasant bottom of that slippery slope.
Were I the prosecutor in Becker’s case, rather than charging her with murder I’d charge child abuse, which California defines to include “physical injury or death inflicted by other than accidental means upon a child by another person” CA PENAL § 11165.6 Unlike in Florida, I am unable to find any California court case which precludes charging her under that statute for intentionally ingesting meth while pregnant in accordance with the American BAR.
Which brings us back to the case in my office. After we were unable to prosecute the mother for smoking crack while pregnant she gave birth — to a crack-baby boy.
Fast forward twenty years. A case comes across my desk of a young man charged with using, and selling, crack cocaine. He’s the grown son of the woman we tried to prosecute for smoking crack while she was pregnant — with him.
It’s one thing to say a woman has the right to control her own body via abortion. It’s quite another to say she has the right to condemn her child to a life of drug abuse. Becker’s stillbirth may have been a karmic act of mercy to the child.
If I was her prosecutor I’d offer Becker a plea deal. Permanent sterilization in lieu of prosecution. That way if she wants to continue using meth, she will only harm herself, not any future children!
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.