Miscarriage or Murder? How Miscarriage Could Become a Crime in Post-Roe America

By Nicole Page and Bilal Mubarack

Is having a miscarriage a crime? The terrifying answer is: maybe. The California Penal Code § 187 defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” The addition of “fetus” in this definition stems from the 1970 California Supreme Court case Keeler v. Superior Court, where the petitioner assaulted his pregnant wife, resulting in a miscarriage. The court ruled that because a fetus was not a person under the murder statute, the petitioner could not be prosecuted on a murder charge. The California legislature subsequently amended the penal code to allow prosecution for harm to fetuses as a result of domestic abuse against pregnant women. In Kings County, California however, the District Attorney has weaponized this provision designed to protect women and used it to criminalize miscarriages by charging two women who gave birth to stillborn children with murder.

One of these women, Adora Perez, was charged with murder in 2018 after giving birth to a stillborn child when she was 39 weeks pregnant. While she was still recovering from labor, and without her knowledge, her doctor conducted a drug test on Ms. Perez and found methamphetamine in her system. The hospital reported those findings to the police, who then arrested Ms. Perez on murder charges. She sat in prison for 4 years until her case was overturned on appeal this year.

Should Roe v. Wade be overturned, we are likely to see prosecutors expand their use of state penal codes to criminalize women for miscarrying. The potential ramifications of this are staggering to consider. Say a pregnant woman decides to go for a jog and has a collision with a cyclist, which causes her to miscarry. She has to deal with the horrific loss of her baby, but will she also be prosecuted for negligent homicide?

It is not just the right to decide when and whether to have a child that is being threatened with the challenges to Roe and the accompanying efforts in numerous states to criminalize pregnancy termination. Abortion restrictions and penalties are just one area of female autonomy that is under attack. Women who end a pregnancy, even unintentionally, are being criminally prosecuted as murderers and without Roe in place, these cases could become increasingly prevalent. Criminalizing miscarriage is another disturbing step in the continuing campaign to literally police women’s bodies.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Nicole Page who counsels clients in areas of entertainment, employment and intellectual property. Ms. Page is admitted to practice law in New York and the United States District Courts for the Southern and Eastern Districts of New York.