A California appeals court has ruled that prosecutors can move forward with a murder case brought against an Oceanside woman whose infant died after she gave birth by herself in her apartment.
But in its unanimous decision Friday, the three-judge panel of the 4th District Court of Appeals in San Diego noted that even though sufficient evidence exists to bring Kelsey Carpenter to trial, it is only by the “thinnest of margins.”
In the opinion, Associate Justice Martin Buchanan wrote that the case required the appeals court to “explore the dividing line” between protected conduct related to a person’s pregnancy and reproductive decisions, and conduct occurring after a baby is born alive.
The case puts a spotlight on a newly strengthened state law that offers protections to pregnant people and reproductive freedom. The question is did the baby die for reasons related to Carpenter’s pregnancy and birth decision or her actions after the birth.
In California, a woman cannot be charged criminally for any effect that prenatal drug use or lack of prenatal care may have on the infant, nor for opting to give birth at home alone. It does not matter whether those actions contributed to the infant’s death.
Carpenter’s attorneys filed the appeal, asking the higher court to dismiss the charges. They argued that prosecuting her was unlawful, because the charges stemmed from actions she took and decisions she made during her pregnancy.
Prosecutors argued that they charged Carpenter because of what she did — or didn’t do — after the baby was born. For example, they said, she failed to call 911 when the baby was in distress and turning blue.
According to court documents and testimony from a preliminary hearing, Carpenter was pregnant in late 2020, but feared authorities would remove the new baby from her care as they had with her two sons, who had tested positive for drugs at birth.
Prosecutors argue that Carpenter’s plan was to avoid a hospital birth so authorities would not take the infant, a daughter she named Kiera.
Carpenter was home alone in November 2020 when she went into labor and gave birth in an apartment complex off Canyon Drive.
She cut the baby’s umbilical cord, but did not clamp it, according to court documents. She tried to stop the bleeding by putting a piece of tape over the stump, but the bleeding persisted.
Carpenter told authorities the baby was turning blue and struggling to breathe, so she attempted to administer CPR. She said was unable to call for help because her phone was dead.
Carpenter — who lost blood during the delivery — said she had passed out and woke up to find the baby had died, according to the opinion. At some point, she had attempted to administer CPR to the newborn, but it is not clear when.
The San Diego County Medical Examiner’s Office determined that the baby died from “methamphetamine and buprenorphine toxicity and unattended delivery.” Buprenorphine is administered to address opioid dependence, and is provided to pregnant women in place of methadone.
The doctor who performed the autopsy testified at Carpenter’s preliminary hearing that the blood loss from the umbilical stump was “very substantial and contributed to the death of the baby.”
Carpenter was arrested four months later and charged under a theory of second-degree murder, which carries a potential sentence of 15 years to life. Last fall, she was ordered to stand trial.
The next day, Gov. Gavin Newsom signed legislation clarifying that people cannot be charged for decisions made during pregnancy, no matter the pregnancy outcome, be it miscarriage, stillbirth, abortion or perinatal death from causes that occurred before the baby was born.
AB 2223 “helps to ensure that pregnancy loss is not criminalized,” his office said in a news release.
With those protections in place, Carpenter’s attorneys filed the appeal.
District attorney’s office spokesperson Tanya Sierra noted that the three-judge panel ruled unanimously that there was enough evidence in the case for it to move forward to trial. She said prosecutors “will continue to pursue justice in this tragic case.”
“While the office “fully recognizes and honors the reproductive rights clarified and strengthened [in the law], this case has always been about a newborn baby who died as a direct result of a parent’s acts and omissions after the baby’s live birth,” she said.
Carpenter’s attorney, Brian White, said he and his client are “disappointed with the opinion but appreciate the court finding that probable cause was only shown by the thinnest of margins.”
White said that aside from reproductive freedom, the case also highlights “the punitive, negative affects” that the child welfare system has on reproductive rights for women with substance-abuse disorders.
“That is really the thrust of the case,” he said. “We view it as a public health issue.”
Civil rights attorney Amber Fayerberg, who joined Carpenter’s case for the appeal, said the appellate court’s opinion “demonstrates the fundamental weakness of the state’s case and the extent to which the prosecution relies on evidence of protected conduct.”
“The opinion recognizes that much of the evidence on which the prosecution bases their case will not be admissible at trial,” Fayerberg wrote in an email, adding that the opinion “significantly narrows the prosecution’s path forward.”
“We will continue to fight both on behalf of Ms. Carpenter and also to ensure that the state does not continue to attempt to criminalize conduct related to her pregnancy or her pregnancy outcome.”
Carpenter is due back in Superior Court next month. No trial date has been set.