“Fact Checkers” Fail to Research California’s Infanticide Bill AB 2223

Media fact checkers attack pro-life concerns on AB 2223 as "misinformation"

“Fact Checkers” Fail to Research California’s Infanticide Bill AB 2223

California’s proposed bill AB 2223 has sparked nationwide outrage over its shocking infanticide language.  Unfortunately, misguided media “fact checkers” have failed to thoroughly research the issue, instead relying on little more than quotes from pro-abortion advocates.  Several media outlets, including Reuters, AP, PolitiFactFactCheck.org, The Sacramento Bee and AFP, are critical of lawyers and journalists who have highlighted the obvious infanticide provisions of AB 2223.

As background, AB 2223 is one of many bills pushed by the Future of Abortion Council, a group of more than 40 abortion advocacy groups, intent upon creating Gov. Gavin Newsom’s “sanctuary state” for abortion.

The bill shields women –and anyone assisting them– from criminal prosecution for the death of a baby due to miscarriage, stillbirths, and abortions . . . but also for perinatal death.  To be clear, “perinatal death” means the death of a born, living baby up to one month old.  AB 2223 literally shields women (and those assisting them) for the killing of a one month old baby if the death is “due to a pregnancy-related cause.” What is a “pregnancy related cause”?  No one knows, because it is not defined in the bill or anywhere else.  The bill also changes coroner’s duties and blocks the use of coroners’ findings concerning such deaths.

The outrage over AB 2223 is that it includes protection against criminal prosecution for such perinatal death.  Since the bill’s introduction earlier this year, pro-life lawyers have repeatedly and specifically pointed out how the language of AB 2223 will erode existing state born-alive protection and will legalize the killing of babies born alive up to a month old.

These pro-life lawyers include this author, The President of the Right to Life League, Theresa Brennan, Esq., Alliance Defending Freedom’s senior counsel Denise Burke, the CEO of Life Legal, Alexandra Synder, Esq., and Americans United for Life attorney, Katie Glenn, Esq.

Media and journalists reporting these claims include The Federalist, The Epoch TimesLifeSite News, LiveAction, The National Catholic Register, and California Family Council. Each lawyer and each reporter has painstakingly and repeatedly explained HOW and WHY the current language of California bill AB 2223 will legalize infanticide.

Bill’s Author Smears Pro-Life Legal Analysis  as “Disingenuous.”

Assemblymember Buffy Wicks, the bill’s primary author, is presenting AB 2223 as a compassionate bill to protect grieving parents from rogue prosecution for “pregnancy loss.”

In an April 5th post on Twitter, Wicks called the pro-life analysis of AB 2223 “absurd and disingenuous.” She professed her legislative “intent” to protect mothers from prosecution for a “pregnancy loss.” Wicks holds a B.A. degree in political science and history from the University of Washington. She is not an attorney and has no legal training.

Her spox, Erin Ivie, pronounced the pro-life legal analysis to be “disingenuous” while at the same time admitting to PolitiFact that “the perinatal stage is the period following pregnancy, and it is currently undefined when it comes to duration.” Ivie herself is disingenuous.

In fact, although not specifically defined in this bill, perinatal death IS already defined in California law in the Welfare Code to include the period from birth through the first month of life. Fact-checkers agree on that definition of perinatal, too.

But, rather than specifically explaining how the legal experts are wrong, the fact-checkers simply quote one-liners from Buffy Wicks and a few pro-abortion academics, with absolutely no explanation as to “why” the legal scholars are wrong. The pundits and professors quoted by the “fact checkers”do not explain HOW or WHY the interpretation the pro-life analysis of the proposed statutory language is flawed.  It just *IS.* Without analysis, the fact checkers parrot the abortion-industry’s talking points.

Fact-checking “Pregnancy Loss”

Fact checkers accept Wicks’ claim that the bill precludes accountability for intentional perinatal deaths at face value.  Sadly, Wicks incorrectly asserts that adding the language “due to pregnancy related cause” narrows the bill’s scope to perinatal deaths due to “pregnancy loss”. 

There are at least two major problems with Ms. Wicks’ claim. First, the bill does not define “pregnancy-related cause”. Second, AB 2223 does not use the term “pregnancy loss.”  Instead, the bill uses the term “pregnancy outcome”, another vague, undefined term. Unfortunately, the fact checkers accept her claim without further examination.

What does AB 2223 actually say?

So, what does AB 2223 actually say? The current version of the bill calls out four categories of pregnancy “outcomes”: 1) miscarriage; 2) stillbirth, 3) abortion and 4) “perinatal death due to a pregnancy related cause.”

It will add the following new language to the state’s Health and Safety Code as Section 123467:

 (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. (emphasis added)

The first three categories describe prenatal death of the baby in the womb and before birth.  The fourth category — perinatal death — describes death AFTER THE BABY IS BORN AND ALIVE outside the womb, for up to one month after birth

To reiterate, the term “perinatal death” is defined in California statutory law to be from birth through the 28 days of  life.  Read California’s Article 4. The Medi-Cal Benefits Program § 14134.5(b), effective date January 2020.  It is set forth in the California Welfare and Institutions Code here.

Notwithstanding Ms. Wicks’ woefully ignorant spin, AB 2223 lumps prenatal and perinatal death together so that the cause of ANY fetal death — before birth or after birth — cannot be used to investigate the mother or anyone who assisted in causing that death, which the bill euphemistically refers to as the “pregnancy outcome.”

When is it OK to kill a One Month Old Baby?

When is the killing of a one month old baby “pregnancy related?” Neither the indolent media nor the bill’s author will say. There is no legal definition given in the bill, which is deliberate. That is because the phrase “due to a pregnancy-related cause” is so overbroad as to mean virtually anything.

So, the question becomes:  Exactly WHEN is it ok to kill a one month old baby?  Neither the bill’s authors nor the fact checkers answer that question.  They refuse to explain WHY the bill expressly allows for the killing of a born, breathing, living month-old baby such that the mother or anyone else involved cannot be prosecuted.

Rather than confront the shocking drafting issues in AB 2223, the fact checkers simply ignore it.

The announced purpose behind AB 2223 is to protect mothers from prosecution for miscarriages, stillbirths or abortions. But, by definition, a perinatal death does not include miscarriage, stillbirth or abortion.  It goes well beyond the pretext of protecting mothers who choose to have abortions or those who suffer stillbirths or miscarriages. It means the death/killing of a live baby up to one month old.

AB 2223 protects those who assist in abortions and perinatal deaths.

AB 2223 proposes to protect mothers from all civil or criminal liability “based on their actions or omissions with respect to their pregnancy or …  alleged pregnancy outcome”.

Here are some sad and shocking examples of how that might work: A mother who strangles her newborn (an act) or fails to feed her newborn (an omission), is shielded from all liability under AB 2223 if the baby dies. She can assert the death was “due to a pregnancy-related cause” and she’s protected from civil or criminal liability.

But wait. There’s more.  AB 2223 also shields ANYONE who assists a mother in obtaining her desired pregnancy outcome under that new amendment to Health and Safety Code Section 123467:

(b) A person who aids or assists a pregnant person in exercising their rights under this article shall not be subject to civil or criminal liability or penalty, or otherwise be deprived of their rights, based solely on their actions to aid or assist a pregnant person in exercising their rights under this article with the pregnant person’s voluntary consent. (emphasis added)

For example, under AB 2223, an abortionist who botches an abortion and delivers a living breathing baby would have up to one month to kill the baby and dispose of the corpse as “medical waste”, so long as it is done with the mother’s consent.  Why?  Because it is a perinatal death “due to a pregnancy related cause”.  AB 2223 would shield both the mother and abortionist, not just from prosecution but also, shockingly, from any investigation of the death.

Here’s another consequence of this bill that the fact checkers either fail to perceive or do not acknowledge. If a mother gives birth, and the baby’s daddy is upset she did not get an abortion, if he kills the baby, he would not face criminal prosecution so long as the mother afterward consented and asserted a right to determine her pregnancy outcome within the one month perinatal period. 

AB 2223 deters Investigation of Newborn Deaths

AB 2223 creates a private, civil cause of action for violation of the bill’s privacy right.  By doing so, it effectively blocks the investigation of anyone associated with a newborn death up to one month old.

The bill’s proposed addition to the Health and Safety Code Section 123469 makes this clear:

(a) A party aggrieved by conduct or regulation in violation of this article may bring a civil action against an offending state actor in a state superior court. (emphasis added)

(d)(1) the criminal investigation, arrest, or prosecution, or threat of investigation, arrest, or prosecution, of a person with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, constitutes “threat, intimidation, or coercion” pursuant to Section 52.1 of the Civil Code. (emphasis added)

The bill would amend Section 27491 of the Government Code to eliminate a coroner’s duty to investigate a known or suspected self-induced or criminal abortion.

The bill also would amend Section 103000 of the Health and Safety Code to bar the use of the coroner’s report concerning a fetal death “to establish, bring, or support a criminal prosecution or civil cause of action seeking damages against any person, whether or not they were the person who was pregnant with the fetus.”

Remember, the phrase “perinatal death” already includes the deaths of babies born alive up to at least a month old under the Welfare Code.

So, if AB 2223 passes, the coroner will have no affirmative duty to investigate a baby’s death and could face a civil action by the mother or anyone assisting her for investigating the death.  Damages start at $25,000 and can also include lawyers’ fees.

The bill does not outlaw the investigation of the death outright, but it certainly deters a coroner from inquiry into the cause of any perinatal death, which is necessary to establish homicide, by creating a private cause of action against anyone who reports a perinatal death.  And it certainly will deter all but the most courageous good Samaritans from reporting child abuse leading to a newborn’s death lest because even the “threat of investigation” by reporting the abuse to police could constitute actionable violation of the rights of the infant’s murderers.

If mom says the baby died as a result of a “pregnancy related cause,” the coroner — a “state actor” — could face a civil lawsuit for pursuing an investigation of the circumstances surrounding the newborn’s death up to one month old.  

And the bill specifically prevents the use of that coroner’s report to establish liability against anyone who acted to kill the newborn baby with mom’s consent.

AB 2223’s Confusing Grant of Immunity

AB 2223’s final proposed amendment to Health and Safety Code Section 123469(e) recognizes qualified immunity from prosecution for government employees under existing state law: 

(e) Sections 825, 825.2, 825.4, and 825.6 of the Government Code, providing for indemnification of an employee or former employee of a public entity, apply to any cause of action brought under this section against an employee or former employee of a public entity.

This language would appear to frustrate prosecution of coroners or police detectives who investigate babies’ deaths. But, as currently written, the last clause appears to conflict with the private cause of action the bill creates to protect the right to privacy in a chosen pregnancy outcome in the sections above. 

This is yet another hopelessly confusing conflict within AB 2223. When coupled with the threat of civil lawsuits that include attorneys’ fees, this bill may deter state actors such as social workers, medical personnel, coroners and police officers from reporting or investigating newborn deaths.

AB 2223 is a Catch 22.

So, under this bill, moms, abortion providers, and anyone really, could potentially have up to one month to kill an unwanted baby regardless of its health or condition. Not only will there be no prosecution, there will be no investigation of that baby’s death because it is “pregnancy-related” and mom gave her consent.

So, now that you know how confusing, vague and overbroad the bill really says, ask yourself: Why won’t Wicks strip out the term “perinatal death” to definitively exclude legalized infanticide? If she won’t strip it, why won’t she at least define it, as other bills so clearly do? And why won’t fact checkers examine these questions?

Susan Swift Arnall, Esq.
susan@righttolifeleague.org

Civil Rights attorney for the Unborn, Wife and Mother of 7. Member California State Bar, SAG/AFTRA.