Fact Checkers Fail to Take the Text of AB-2223 Into Account, Ignoring Infanticide Concerns

Thousands Rally Opposing AB-2223 at the California Capitol on April 19, 2022

We should be able to expect that fact checkers are more committed to the objective truth than to personal political biases and social agendas. Sadly, that is not the case when it comes to assessments of the impact of California’s latest abortion legislation. Some progressive-left media outlets are claiming to have fact checked the informed legal opinions of civil rights attorneys, including mine, after we carefully confirmed that Buffy Wicks’ (D-Oakland) barbaric bill, AB-2223, will legalize infanticide in California. These “fact checkers” include among others, Reuters, AP, PolitiFact, FactCheck.org, and even the Sacramento Bee. The problem with their “analysis” is that they are checking precisely the wrong facts. Rather than focusing on the bad bill’s objective text, as informed by a plain reading of the English language, they have rather deferred to the subjective feelings and self-serving public statements of their social justice ally Buffy Wicks, who is a staunch pro-abortion advocate and who is not a lawyer.  But, merely repeating a lie does not make it true.  Actually, that is just propaganda. 

While it is true that AB-2223 does not include the word “infanticide,” per se, the tragic result of the bill’s current sweeping, vague and overbroad language, will nonetheless legitimize infant homicides, if enacted.  For her part, Wicks counters that her bill “does not legalize infanticide,” but only “protects parents who are experiencing extremely tragic pregnancy outcomes.” That statement is either objectively true or it is not.  It is not.  That’s because truth is that which actually conforms to objective reality. 

In confirmation of what is really real here, let us briefly examine the relevant portion of Buffy’s bill text, something the purported fact checkers seem to be largely avoiding:

“[A] person shall not be subject to civil or criminal liability or penalty, or otherwise deprived of their rights, 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. death due to a pregnancy-related cause (emphasis added).”

The term “perinatal,” which is not defined in this bill, includes the period of time of several weeks, or perhaps even a month or more, after a baby’s live birth. Traditionally, most medical dictionaries define the perinatal periods as up to a few weeks after birth. The California Welfare and Institution’s Code, for example, defines it as one month after birth. However, some groups are even pushing for a definition of perinatal as including up to a year after a baby’s birth. When pressed, Wicks’ spokesperson Erin Ivie admitted this significant problem. She recently informed PolitiFact that “the perinatal stage is the period following pregnancy, and it is currently undefined when it comes to duration.” And that is precisely the problem here. We know it is after birth.  But how long?  Two weeks?  One month?  One year? To her credit, Berkeley School of Law Professor Khiara M. Bridges stated that it would be helpful for lawmakers to define “perinatal” for purposes of this bill. But it is actually much more than helpful, it is essential if we value human life and human rights. 

Baby deaths from stillbirths, miscarriages, abortions and other pregnancy outcomes are already covered by the explicit language of AB 2223 (see above). This raises an obvious question. What exactly does “perinatal death” add to the equation here that is not already covered in the Wicks’ bill? Though difficult to fathom, if Buffy Wicks intends to protect women from legal jeopardy for botched abortions where the baby is born alive and later dies, although macabre, she should be honest and explicitly say so in the text. However, I suspect that Wicks’ persistent refusal to define or limit “perinatal” stems from the fact that she does not want to actually admit out loud publicly how truly barbaric and horrific the violence is which this bad bill will wreak on vulnerable and innocent babies post-birth.  Also, she and her death merchant allies clearly want to leave the barn door wide open for judges to later liberally interpret the “perinatal” period as expansively as possible. Here, death and destruction are tragically cloaked in darkness and confusion. 

As currently written, AB-2223 neither defines nor in any way limits the term “perinatal.” But if Wicks truly does not intend to legalize infanticide, why is she using the term the dangerous term “perinatal” at all?  And, why when pressed, is she refusing to define how long the perinatal period is in the bill’s text? These are very important questions she refuses to adequately address or answer. Therefore, based on the even conservative medical definitions of perinatal, Buffy Wicks cannot state with any veracity or certainly that AB-2223 conclusively excludes legal protection for infant homicides, days, weeks or even a month post-birth. The fact checkers have utterly failed. They should be fired.

Still, in a weak attempt to assuage legitimate concerns about her bill raised before the California Assembly Judiciary Committee, Wicks added the phrase “due to pregnancy-related cause” after “perinatal death.”  However, just as the bill does not precisely define or limit “perinatal death,” it similarly does not precisely define or limit the phrase “due to pregnancy related cause.” The obvious problem here with such consistent legislative vagaries is that, unless carefully defined, a post-birth infant death “due to a pregnancy related cause” will very likely be judicially interpreted as being just about anything, including a mother’s postpartum depression or a baby’s undesirable birth defects, including Down Syndrome or Autism, among a myriad of other things.  As this bill is written, a “pregnancy related cause” could shield almost any death, including homicides, after the baby’s birth. 

The bottom line is this: If we strip out the inapplicable, unclear or confusing parts of the above-quoted bill text and focus on the portions relevant to perinatal death (a.k.a. infanticide), we are left with the following translation into understandable English:

“No one in California will not be held legally responsible (criminally or civilly) for what they did or failed to do regarding the death of their baby, including deaths occurring after the birth (for an undefined period of days, weeks or months), if the death results from a pregnancy related cause (undefined, possibly including mom’s postpartum depression, baby’s unwanted birth defects, etc.).”

If enacted, AB 2223 will be interpreted by judges, not the media. These “fact checkers” need to learn legislative interpretation 101. The objective text of the legislation is far more determinative of its future judicial interpretation and application than the subjective intent of the author.  When interpreting a statute, judges first look at the text.  Legislative intent is one of the last things judges consider. At its root, AB-2223 is a rancid recipe for disaster and death! Thankfully, AB-2223 will not likely survive judicial scrutiny at the U.S. Supreme Court. That’s because Dr. Seuss was right. A person is a person, no matter how small. And persons, even tiny ones, have rights.

The truth is that, as currently formulated, AB-2223 will legalize infanticide.  As a result, not only will persons who negligently or intentionally kill infants possess a “get out of jail free card,” but law enforcement will have no appetite to investigate suspicious cases of baby deaths.  That’s because this bad bill gives even homicidal baby killers the right to sue and obtain civil damages from coroners, police detectives and prosecutors who dare question, investigate or prosecute such infant deaths.  Law enforcement will not want to touch these cases with a ten-foot pole.  AB-2223 is precisely how you legalize infanticide without actually explicitly calling it infanticide. Born alive babies are full persons possessing full civil rights, for constitutional and legal purposes. They deserve to have their murders investigated and, if necessary, prosecuted. 

I close this article by briefly noting my credentials. I do so not out of hubris, but just to assure you that, unlike Buffy Wicks, I know what I am talking about. I am a constitutional attorney with more than 27 years of litigation and public policy experience in the courts and culture. I am licensed to practice before the Supreme Court of the United States. I have more than 20 years analyzing bills, submitting legal opinion analysis and personally testifying for and against proposed bills before legislative bodies. I have served as co-counsel in federal cases successfully challenging unconstitutional state legislation. Currently, I serve as president and chief counsel of the National Center for Law & Policy.  But do not just take my word for it. Unlike the lazy media “fact checkers,” please read the text of AB-2223, use your reason and logic and decide for yourself. 

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