A Democratic bill would no longer treat stillbirths as “unattended deaths,” investigated by coroners. But anti-abortion activists fear the change would legalize “infanticide” after babies are born.
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UPDATE: Gov. Gavin Newsom signed Assembly Bill 2223 into law on Sept. 27, 2022.
A bill that would abolish the requirement that coroners investigate stillbirths passed the Assembly Health Committee on an 11-3 vote late Tuesday, while hundreds of anti-abortion activists protested against the proposed change on the Capitol steps.
Under current law, all fetal deaths at or after 20 weeks, with the exception of abortions, are treated as “unattended deaths” in California, requiring a coroner to investigate.
In 48 of 58 California counties, the sheriff is also the coroner, which means that law enforcement becomes involved and the person who is pregnant could face potential prosecution. That, say groups representing obstetricians and gynecologists, is dangerous and could make pregnant people less likely to seek medical care. (A bill that would have separated the offices of sheriff and coroner failed to clear the Assembly in August.)
“Fear of jail or fear of having their child removed leads people to physically avoid and emotionally disengage from prenatal care,” said Sarah Roberts, a researcher at the University of California, San Francisco, testifying Tuesday in favor of the bill.
She said the application of the law is unequal. Roberts said her research shows that while white and Black people use alcohol and drugs at about the same rate during pregnancy, pregnant Black people are four to five times more likely to be reported to authorities.
Between 2017 and 2019, two Kings County women were charged with murder and imprisoned after they delivered stillbirths and tested positive for methamphetamine. Both have since been released from prison, and one woman had her charges dismissed last year.
The other, Adora Perez, was interviewed by a Kings County sheriff’s deputy serving as a coroner 90 minutes after her stillbirth in December 2017, according to medical records shared by her legal team with CalMatters. Her case was referred to the local police department one hour later. She was arrested as she was being discharged from the hospital.
In January, Attorney General Rob Bonta issued a legal alert instructing prosecutors and police not to pursue charges against people who miscarry or deliver stillbirths, calling out the Perez case by name.
Fetal deaths after 20 weeks are called stillbirths. Before 20 weeks, they are referred to as miscarriages, according to the Centers for Disease Control and Prevention.
“The loss of a pregnancy at any stage is a physically and emotionally traumatic experience that should not be exacerbated by the threat of being charged with murder,” Bonta said in January.
Kings County District Attorney Keith Fagundes, who prosecuted both Kings County women, has told CalMatters that he will continue to file murder charges against people who miscarry or deliver stillbirths and test positive for drugs if he feels the cases warrant prosecution.
Abortion rights advocates believe the Kings County cases have broad implications for abortion access in California, potentially opening the door to criminal prosecutions of people seeking to terminate pregnancies.
One aspect of the proposed Assembly Bill 2223 that is being challenged by anti-abortion activists is its treatment of perinatal infant deaths.
The Right to Life League and the California Family Council define the perinatal period as a month or more after delivery. The National Center on Health Statistics defines the perinatal period as between 28 weeks of gestation and seven days after birth.
The Right to Life League contends that one section of the bill, which exempts mothers from civil and criminal liability if an infant dies during the perinatal period “due to a pregnancy-related cause,” would essentially legalize the killing of newborn babies.
“A mother, her boyfriend or, for that matter, the babysitter, can starve or beat or shake a 3-week-old baby to death and no one can investigate because under AB 2223 it is a ‘perinatal death,’” wrote vice president of legal affairs Susan Arnall on the Right to Life League website.
It’s unclear whether any of the causes of death Arnall mentioned would be classified as “pregnancy-related.”
Assemblymember Buffy Wicks, D-Oakland, called this argument “disinformation.”
“These same groups that are trying to ban abortion across this country and imprison people for stillbirths have manufactured a disinformation campaign using disturbing and violent imagery that is not grounded in medical science or the actual text of the bill,” Wicks said.
Learn more about legislators mentioned in this story
State Assembly, District 14 (Oakland)
State Assembly, District 14 (Oakland)
Time in office
Asm. Buffy Wicks has taken at least $742,000 from the Labor sector since she was elected to the legislature. That represents 24% of her total campaign contributions.
Arnall argues that the bill would effectively nullify a 1995 law that mandates that infants born prematurely in the course of an abortion must be treated the same as infants delivered in a live birth.
She also criticized the bill’s proposed $25,000 fine for a person who violates the proposed law, or “aids, incites, or conspires in that denial,” saying that instruction would have a chilling effect on investigations of fetal deaths.
“This is a hill for moral people to die on,” said Jack Hibbs, pastor of Calvary Chapel Chino Hills, testifying against the bill on Tuesday. “As citizens, we must hold you accountable.”
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