A California bill would do away with mandatory investigations of stillbirths. Opponents misleadingly claim it would “legalize infanticide.” The bill would prevent prosecution in cases of “perinatal death due to a pregnancy-related cause.” But authorities would investigate if there were evidence of foul play leading to an infant’s death.
A California bill that would protect parents from investigation and prosecution if they lose or choose to end a pregnancy has been spun into a falsehood that the state is set to “legalize infanticide.”
Other opponents have been posting similar claims, including Jenna Ellis — a member of former President Donald Trump’s campaign legal team — who wrote on Facebook, “This is INSANELY evil. California Democrats are trying to legalize killing children up to the age of 28 days.”
But there is no bill in the California state legislature that would make it legal to kill a person of any age. What these posts are referring to is Assembly Bill 2223, which is part of a slate of legislation supported by the Planned Parenthood Affiliates of California and the California Future of Abortion Council that aim to strengthen protection of abortion rights in California as some other states have reduced access.
The bill states:
Assembly Bill 2223, as amended April 6: Pregnancies can end in a range of outcomes. Nationwide, as many as one in five known pregnancies end in miscarriage. In California, as many as 2,365 pregnancies per year end in stillbirth, meaning perinatal loss after 20 weeks gestation. Many pregnancy losses have no known explanation.
People also need to end pregnancies by abortion, including self-managed abortion, which means ending one’s own pregnancy outside of the medical system.
Every Californian should have the right to feel secure that they can seek medical assistance during pregnancy without fear of civil or criminal liability.
The threat of criminal prosecution of pregnancy outcomes is partly traceable to out-of-date provisions that give coroners a duty to investigate certain abortions and pregnancy losses. Based on these provisions, health care providers and institutions report people to law enforcement for pregnancy losses, leading to harmful investigations and even unlawful prosecutions.
Civil and criminal penalties imposed on pregnant people is a critical issue for Black, Indigenous, and other people of color, who experience adverse pregnancy outcomes as a result of systemic racial inequities and are more likely to be under scrutiny of state systems like child welfare or immigration.
The threat of criminal prosecutions or civil penalties on pregnant people through child welfare, immigration, housing, or other legal systems has a harmful effect on individual and public health. When a person fears state action being taken against them related to their pregnancy, they are less likely to seek medical care when they need it. If they do seek care, punishing them for actual, potential, or alleged pregnancy outcomes interferes with professional care and endangers the relationship between providers and patients.
So, that describes the general intent of the bill. The confusion that it might somehow “legalize infanticide” appears to have come from an early version of the bill, which was introduced in February.
In that version, a portion of the bill said (emphasis ours), “Notwithstanding any other law, a person shall not be subject to civil or criminal liability or penalty, or otherwise deprived of their rights, 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.”
The term “perinatal death” can include both fetal death and death that occurs within days or weeks of birth.
An analysis from the Assembly Judiciary Committee prepared for an April 5 hearing on the bill suggested clarifying that section since, the report said, that “language could lead to an unintended and undesirable conclusion.”
The report continued: “As currently in print, it may not be sufficiently clear that ‘perinatal death’ is intended to be the consequence of a pregnancy complication. Thus, 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, which clearly is not the author’s intent.”
The bill’s language was then amended to say, “perinatal death due to a pregnancy-related cause.” The bill’s sponsor, Assemblywoman Buffy Wicks, took to Twitter the same day as the committee hearing to address the claims of legalized infanticide.
“Let me be clear: #AB2223 doesn’t prevent the state from keeping children safe. This isn’t a bill about infanticide. This is about protecting Californians who suffer pregnancy loss from being unjustly investigated, prosecuted or incarcerated. Full stop,” she wrote, before going on to highlight the change to the language.
Still, the claims have persisted, as shown by the examples above.
We asked Khiara Bridges, a professor at the University of California Berkeley School of Law, to explain whether or not there would be any risk that the law would allow for the killing of infants or children.
“Even before adding that language — it’s absurd to think it would legalize infanticide,” Bridges said.
“No judge in the world would understand the killing of a baby that’s born and outside of the uterus as a pregnancy outcome,” which is what the bill is focused on — making sure that parents aren’t criminalized for the outcome of a pregnancy.
If there’s evidence of foul play leading to the death of an infant or child, authorities will investigate as usual, she said.
“This bill does not immunize that behavior at all. It will be investigated,” Bridges said.
So, claims that California is poised to “legalize infanticide” or “legalize killing children” are false.
Editor’s note: FactCheck.org is one of several organizations working with Facebook to debunk misinformation shared on social media. Our previous stories can be found here. Facebook has no control over our editorial content.
California State Assembly. “AB-2223 An act to amend Section 27491 of the Government Code, and to amend Sections 103005, 123462, 123466, and 123468 of, to add Sections 123467 and 123469 to, and to repeal Section 103000 of, the Health and Safety Code, relating to reproductive health.” As amended 6 Apr 2022.
Gonzalez, Oriana. “Red states race to enact new abortion restrictions.” Axios. 19 Apr 2022.
American Academy of Pediatrics. “Standard Terminology for Fetal, Infant, and Perinatal Deaths.” Accessed 22 Apr 2022.
Assembly Committee on Judiciary. AB 2223 (Wicks) – As Amended March 17, 2022. 3 Apr 2022.
Wicks, Buffy (@BuffyWicks). Thread. Twitter. 5 Apr 2022.
Bridges, Khiara. Professor, University of California Berkeley School of Law. Telephone interview with FactCheck.org. 21 Apr 2022.