California Abortion Bill Could Still Effectively Legalize Some Infanticide Despite Amendments

Last month I told you about California Assembly Bill 2223 (co-sponsored by NARAL Pro-Choice California and Planned Parenthood Affiliates of California, among others) which contained language that would restrict the investigation and reporting of infant deaths and could effectively legalize infanticide.

In fact, a legal analysis prepared by legislative committee staff in California essentially agreed with our conclusion. According to the recent pro-abortion-majority California State Assembly Committee on the Judiciary staff analysis of California Assembly Bill 2223:

[T]he ‘perinatal death’ language [included in the original bill] could lead to an unintended and undesirable conclusion[;] the bill could be interpreted to immunize a pregnant person from all criminal penalties for all pregnancy outcomes, including the death of a newborn for any reason during the ‘perinatal’ period after birth, including a cause of death which is not attributable to pregnancy complications.

In other words, it could effectively legalize infanticide up to 28 days after the baby is born (the perinatal period) “for any reason.”

Subsequent to our analysis raising concerns about a similar bill in Maryland and due to the Committee staff analysis, the author of the bill – CA Assembly Member Buffy Wicks – made several amendments to the bill, adding the language in bold below:

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(a) Notwithstanding any other law, a person shall not be subject to civil or criminal liability or penalty, or otherwise deprived of their rights under this article, based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, including miscarriage, stillbirth, or abortion, or perinatal death due to a pregnancy-related cause.

After our thorough legal review of this amended bill, which just passed another committee vote, we have concluded that the amendments do not resolve the original issues with the bill, and it still could allow infanticide in a number of ways.

The first amendment “under this article” was added because the analysis of the bill found that the bill could be interpreted to “immunize a pregnant person from not only all civil liability and criminal penalty for their pregnancy outcomes (consistent with existing law), but also from being ‘otherwise deprived of their rights’ for any of their actions with respect to their pregnancy.” The committee analysis of the bill noted that “existing law allows a pregnant person’s actions during pregnancy [such as drug use] to be considered in a manner that could impact their parenting rights,” and that the bill, as written, could affect those laws. So, the author of the bill added “under this article” to the text. However, that amendment does not impact our original analysis of this bill as our analysis specifically concerned the removal of criminal and civil penalties for pregnancy “outcomes,” which is unaffected by the addition of “under this article,” and is still problematic.

The second amendment, the addition of “due to a pregnancy-related cause,” does little to alleviate the concerns we have that this bill could effectively legalize some instances of infanticide. This is true for three different reasons.

First, the bill, as written and amended, states: “Notwithstanding any other law, a person shall not be subject to civil or criminal liability or penalty . . . based on their actions or omissions with respect to their . . . pregnancy outcome.”

The term “pregnancy outcome” has a specific meaning and is used in reference to both preborn children and newborns. A pregnancy outcome includes full-term birth, premature birth, spontaneous miscarriage, and abortion. Under each of these categories are subcategories that include: vaginal or Caesarean birth, the birth of a healthy or sick baby (e.g., birth trauma, infection), stillbirth, or the birth of a child with congenital anomaly or birth defects.

Thus, under the bill, a person could not be subject to civil or criminal liability or penalty if they withheld (omitted) care from either a full-term or premature infant – born alive – who subsequently dies due to lack of care.

Second, the bill has specifically listed “abortion” as a pregnancy outcome, and it is well established that live births can occur following a failed abortion. Thus, according to this bill, there would be no civil or criminal liability or penalty for a woman (or any person aiding or assisting her) who “self-performs” an abortion (through the use of abortion pills), and then withholds care from an infant born alive after a failed abortion.

For example, just a few days ago, a report from the U.K. detailed how a baby died four days after being born alive following a botched medical abortion. According to the report, the baby’s mother took mifepristone because she had “decided to legally abort the pregnancy on health grounds believing that she was 12 weeks [pregnant], when in fact she was more than twice that [30 weeks pregnant].” After the baby’s death, an investigation revealed that “pre-natal scans were either not carried out or were done erroneously.” While the baby in this story did receive medical attention after his birth, bills like AB 2223 would ensure that medical attention for babies born alive in these kinds of cases is not required.

As I’ve detailed previously, the abortion industry is actively trying to reduce restrictions on and expand access to the exact medical abortion pills used by the woman in that story. Currently, medication abortions account for more than half of all abortions in the United States. And nearly 20% of the medication abortions occurring in the United States are taking place in California. Reduced restrictions on medication abortion pills allow women to access these pills without in-person physician visits or ultrasounds to verify the actual pregnancy stage and ensure that the woman is not experiencing an ectopic pregnancy.

The story above perfectly illustrates what happens when abortion restrictions are removed – putting women and preborn (viable) babies at risk. It is also a perfect example of the situation contemplated by Virginia’s former Governor Northam when he spoke about keeping babies “comfortable” while there was a “discussion” as to what to do with the baby born alive. Bills like this are not a coincidence. It is likely that we will see an increase in these kinds of failed-abortion births as access to unregulated or medically unsupervised medication abortion increases.

Further, under the express language of the bill where the “pregnancy outcome” is due to an intended and attempted (but failed) “abortion,” the “person shall not be subject to . . . criminal liability or penalty . . . based on their actions.” On its face, it would appear that this language could allow that individual to kill the child as was initially intended, circumventing liability under current California law that would prevent such infanticide. While one may think that can’t possibly be what the legislators intended, it is well known in legal circles that ill-worded laws often lead to unintended consequences at the hands of creative defense attorneys.

Thirdly, the amended bill does not limit immunization from civil and criminal liability only to live births, “miscarriage, stillbirth, or abortion.” The bill added a category: “perinatal death.”

Because the bill – as originally written – could be interpreted (as was confirmed by the committee legal analysis) to protect both the woman and any person assisting the woman from civil and criminal liability related to the death of an infant in the perinatal period for “any reason,” the author of the bill added “due to a pregnancy- related cause” following the term “perinatal death.” Now, the bill reads:

a person shall not be subject to civil or criminal liability or penalty . . . based on their actions or omissions with respect to their . . . actual, potential, or alleged pregnancy outcome . . . or perinatal death due to a pregnancy-related cause.

While the analysis of the bill stated that this phrase was intended to clarify “that ‘perinatal death’ is intended to be the consequence of a pregnancy complication,” the bill itself does not use the term “pregnancy complication,” which is in itself a term of art. “Pregnancy complication” is a common medical term which encompasses both the health of the mother and the baby and includes situations such as stillbirth, gestational diabetes, and preterm delivery/birth.

If that was in fact the intent, the legislature could have chosen to use that term; however, that is not the term used. The amendment to the bill instead uses the phrase “due to a pregnancy-related cause.” And the bill does not define “pregnancy-related cause,” which is a much more ambiguous term. Since the author of the bill felt it unnecessary to define “pregnancy-related cause,” the first thing that we must do in analyzing this amendment is define the term.

In general, “pregnancy-related cause,” is a term of art that is quite broadly interpreted. In fact, homicide of “pregnant and recently pregnant women” is listed as a leading “pregnancy-related cause” of death under federal law. (See the Violence Against Women and Department of Justice Reauthorization Act of 2005 and confirmed in recent studies.)

Most (if not all) statutes use “pregnancy-related cause” in reference solely to the mother’s life/health. This is true under California law where “pregnancy-related death” is defined as “the death of a person while pregnant or within 365 days of the end of pregnancy, irrespective of the duration or site of the pregnancy, from any cause related to, or aggravated by, the pregnancy or its management, but not from accidental or incidental causes.” Cal. Health & Safety Code § 123630.2 (Deering, Lexis Advance through Chapter 14 of the 2022 Regular Session). Similarly, the CDC defines a “pregnancy-related death” as “the death of a woman during pregnancy or within one year of the end of pregnancy from a pregnancy complication, a chain of events initiated by pregnancy, or the aggravation of an unrelated condition by the physiologic effects of pregnancy.” (Note: pregnancy-related death includes but is not limited to a pregnancy complication. In other words, again, the term used is legally broader than the claimed intent.)

Other pregnancy-related causes of death include: heart disease and stroke, infections, and severe bleeding.

Nowhere was I able to find the term “pregnancy-related cause” used in relation to newborn or infant deaths or health conditions. It does not occur in California Code in relation to infants, and thus its application in AB 2223 is novel.

In conducting a legal analysis regarding legislative interpretation, because this medical term of art has not been applied to the deaths of perinatal infants previously under California law, it is likely that a court would look to the most analogous use of this term in the law. If that term were applied to infants during the perinatal period in the same way it is applied to women in the year following the end of the pregnancy, it very well may still have “unintended consequences.”

First, a maternal death due to a “pregnancy-related cause” encompasses up to a year post-birth. While the bill uses the term “perinatal,” this term has also been applied in instances that cover over a year post-birth. As is noted in an article published in the National Library of Medicine: “The perinatal period, broadly defined, encompasses the time frame from one year before to 18 to 24 months after the birth of the child.” Thus, the addition of a term that is generally used to encompass up to a year post-birth is concerning, as it could broaden, not lessen, the period in which investigations into the “perinatal deaths” of infants are restricted.

Second, the term “pregnancy-related cause” as applied to pregnant and recently pregnant women includes certain homicides as “pregnancy-related” causes of death under federal law, as noted above. By applying this same term now to perinatal infants, the bill may still shield certain homicidal deaths of infants from civil or criminal liability or penalties.

In other words, referring to “perinatal death due to a pregnancy-related cause” does not in any way prevent this provision from authorizing certain types of infanticide, if they can be defined in some way as “pregnancy-related.” For example, it could be applied where the person kills an infant because they did not want the baby or to have been pregnant, similar to where a homicide against a woman who is pregnant is a “pregnancy-related cause” of death where the person committing the act is doing so because the woman is or was pregnant. Further, if an individual commits infanticide due to postpartum depression, that would almost certainly be a “perinatal death due to a pregnancy-related cause.” Clearly, postpartum depression and any “actions or omissions” attributable to it are “pregnancy-related.”

But even more obvious is the attempt of the legislature to shield women and those who assist and aid them in self-performed abortions from having to provide medical attention – or any attention – to babies born alive after botched abortions.

In sum, although California Assembly Bill 2223 has been amended, the bill is still problematic. As the bill works its way through the California legislature, the ACLJ will be submitting its detailed legal analysis of the bill to the appropriate legislators to help stop this bill from becoming law.

UPDATE 04.28.2022: We are preparing to send a letter directly to the Chairman of the CA State House Appropriations Committee in the next few days outlining our concerns about the implications of this bill and providing our detailed legal analysis.

UPDATE 04.29.2022: We have just sent a legal letter to the committee chairman with our legal analysis, as a committee hearing on this dangerous bill has been scheduled for next week.