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California Passes Bill With Loophole That Permits Infanticide

The law includes language which is often hard to define, giving individuals and providers immunity if a child dies after it is born

On Tuesday, California’s state assembly passed a bill that allows for a child’s life to be taken by a parent after birth without facing any criminal charges. 

The lawmakers passed Assembly Bill 2223 (AB2223) in a vote of 11-3. 

The intention of the bill, according to proponents, was to protect a mother’s right to her own health care decisions regarding pregnancy. It was also designed to protect women against criminal charges in stillborn or pre-term births, often caused by substance abuse or other factors. The example case behind the bill’s creation was Adora Perez, who spent four years in prison for the death of her stillborn baby due to her use of drugs during pregnancy.

The bill had already faced some scrutiny as activists spoke out against the its broad support of abortion. As a result, an amendment was added that has now raised additional concerns. 

Under the revision, the phrase “perinatal death due to pregnancy-related cause” was included.  

Previously the bill stated, “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.”

However, the phrase added to the definition leaves open a loophole that the law does not clearly define. The term perinatal is most often defined as the period from conception until one year after giving birth. 

Without a distinct definition of terms, the newly passed bill supports the concept of infanticide. As the legislation states, the mother is protected from criminal charges in the death of a born child up to one year after giving birth.

The term “pregnancy-related” is not defined under the new bill. There is no clear understanding of how an investigator or provider would determine if the cause of death would be related to any pregnancy complication. In fact, “pregnancy-related,” in a broad sense, could be defined as a child or fetus that was subjected to being part of pregnancy. 

Technically, this could mean that a mother or healthcare provider would have the right to allow a born child to be left without care until death and would not face criminal charges. 

Additionally, under the new bill, women can sue prosecutors for charging them with a crime related to their child’s deaths if the death was deemed “pregnancy-related.” The law allows a woman to seek up to $25,000 in damages from such instances.

In essence, this would end the investigations and any legal action in the instances of partial-birth abortions, a practice that is banned by federal laws nationwide. However, because the bill includes the phrase “notwithstanding any other laws,” if the bill becomes law, the federal restrictions on late-term and partial-birth abortion would not have any effect in the State of California. 

There has been fierce opposition and staunch support for this bill. 

Attorney and President of the National Center for Law and Policy Dean Broyles said: 

“AB 2223 seeks to legalize the killing of babies in California after birth. Depending on how the term ‘perinatal’ is interpreted by the courts, this bill legalizes the infanticide of children several weeks after their birth and possibly as late as their first birthday. If this barbaric bill is enacted, there will be no criminal or civil liability for the mother or those who assist her with killing her baby post-birth.”

However, Jessica Pinckney, the executive director for Access Reproductive Justice, said, “The fundamental right to make decisions about our bodies, lives, and futures is essential to the pursuit of health equity and racial, reproductive, and economic justice – California has the unique opportunity to make that right more tangible for millions of people.”

The bill must now go to the state Senate chamber for consideration. If passed in the Senate, it will be handed to Governor Gavin Newsom to be signed into law. 

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