AMENDED IN SENATE JUNE 20, 2022
AMENDED IN ASSEMBLY MAY 19, 2022
AMENDED IN ASSEMBLY APRIL 6, 2022
AMENDED IN ASSEMBLY MARCH 17, 2022
california legislature—2021–22 regular session
ASSEMBLY BILL No. 2223
Introduced by Assembly Member Wicks
(Principal coauthor: Assembly Member Mullin)
(Coauthors: Assembly Members Bauer-Kahan, Bennett, Berman, Cristina Garcia, Haney, Jones-Sawyer, and Kalra)
(Coauthors: Senators Gonzalez and Wiener)
February 15, 2022
An act to amend Section 27491 of the Go vernment 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. legislative counsel’s digest
AB 2223, as amended, Wicks. Reproductive health.
(1) Existing law requires a county coroner to hold inquests to inquire into and determine the circumstances, manner , and cause of violent, sudden, or unusual deaths, including deaths related to or follo wing known or suspected self-induced or criminal abortion. Existing la w requires a coroner to register a fetal death after 20 weeks of gestation, unless it is the result of a le gal abortion. If a ph ysician w as not in attendance at the deli very of the fetus, e xisting law requires the fetal death to be handled as a death without medical attendance. Existing
95 law requires the coroner to state on the certificate of fetal death the time of fetal death, the direct causes of the fetal death, and the conditions, if any, that gave rise to these causes.
This bill would delete the requirement that a coroner hold inquests for deaths related to or follo wing known or suspected self-induced or criminal abortion, and would delete the requirement that an unattended fetal death be handled as a death without medical attendance. The bill would prohibit using the coroner’s statements on the certificate of fetal death to establish, bring, or support a criminal prosecution or civil cause of damages against any person. a person who is immune from liability based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, or who aids a pregnant person in exercising their rights under the Repr oductive Privacy Act, as specified.
(2) Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to their personal reproductive decisions. Existing law prohibits the state from interfering with a pregnant person’s right to choose or obtain an abortion before the fetus is viable or when it is necessary to protect the life and health of the pre gnant person. Under e xisting la w, an abortion is unauthorized if either the person performing the abortion is not a health care provider that is authorized to perform an abortion or the fetus is viable.
Existing law, the Tom Bane Civil Rights Act, authorizes an individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, to institute or prosecute in their own name and on their own behalf an action for damages, as prescribed.
This bill w ould prohibit a person from being subject to ci vil or criminal liability, or otherwise deprived of their rights, based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome or based solely on their actions to aid or assist a pregnant person who is exercising their reproductive rights. The bill would clarify that an abortion is unauthorized if performed by a person other than the pregnant person and either the person performing the abortion is not a health care provider that is authorized to perform an abortion or the fetus is viable. The bill w ould authorize a party aggrieved by a violation of whose rights ar e pr otected by the Reproductive Privacy Act to bring a ci vil action against an offending 95 — 2 — AB 2223
state actor, actor when those rights ar e interfered with by conduct or by statute , or dinance, or other state or local rule , r egulation, or enactment in violation of the act, as specified, and would require a court, upon a motion, to a ward reasonable attorne ys’ fees and costs to a prevailing plaintiff. The bill would also authorize a person aggrie ved by a violation of the Reproducti ve Privacy Act to bring a ci vil action pursuant to the Tom Bane Civil Rights Act. The bill would provide for the indemnification of emplo yees or former emplo yees of public agencies who were acting within the scope of their employment.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Le gislature finds and declares all of the line 2 following:
line 3 (a) Reproductive justice is a framework created by Black women line 4 in 1994 to address the intersectional and multifactored issues that line 5 women of color and their families face in society. line 6 (b) Reproductive justice is the human right to control our bodies, line 7 sexuality, gender, work, and reproduction. That right can only be line 8 achieved when all people, particularly women and girls, have the line 9 complete economic, social, and political po wer and resources to line 10 make health y decisions about their bodies, f amilies, and line 11 communities in all areas of their lives. At the core of reproductive line 12 justice is the belief in the right to bodily autonomy , the right to line 13 have children, the right to not have children, and the right to parent line 14 the children we ha ve with dignity and respect in safe and line 15 sustainable communities.
line 16 (c) A critical part of realizing reproductive justice for people in line 17 California is clarifying that there shall be no ci vil and criminal line 18 penalties for people’ s actual, potential, or alle ged pre gnancy line 19 outcomes.
line 20 (d) Across the country, people have been criminally prosecuted line 21 for ha ving miscarriages or stillbirths or for self-managing an line 22 abortion. California has not been e xempt. Despite clear la w that line 23 ending or losing a pre gnancy is not a crime, police ha ve line 24 investigated and prosecutors have charged people with homicide line 25 for pregnancy losses. For example, the District Attorney in the 95 AB 2223 — 3 —
line 1 County of Kings pr osecuted two women for mur der after the y line 2 suffered stillbirths.
line 3 (e) Also across the country, pregnant people are under threat of line 4 civil penalties for their actual, potential, or alle ged pre gnancy line 5 outcomes and civil penalties have been threatened against people line 6 who aid or assist pregnant people in exercising their rights. line 7 (f) Pregnancies can end in a range of outcomes. Nationwide, as line 8 many as one in fiv e known pregnancies end in miscarriage. In line 9 California, as many as 2,365 pregnancies per year end in stillbirth, line 10 meaning perinatal loss after 20 weeks gestation. Many pregnancy line 11 losses have no known explanation.
line 12 (g) People also need to end pregnancies by abortion, including line 13 self-managed abortion, which means ending one’s own pregnancy line 14 outside of the medical system.
line 15 (h) Every Californian should have the right to feel secure that line 16 they can seek medical assistance during pre gnancy without fear line 17 of civil or criminal liability.
line 18 (i) The threat of criminal prosecution of pre gnancy outcomes line 19 is partly traceable to out-of-date pro visions that gi ve coroners a line 20 duty to investigate certain abortions and pregnancy losses. Based line 21 on these provisions, health care pro viders and institutions report line 22 people to law enforcement for pregnancy losses, leading to harmful line 23 investigations and even unlawful prosecutions.
line 24 (j) Civil and criminal penalties imposed on pre gnant people is line 25 a critical issue for Black, Indigenous, and other people of color , line 26 who experience adverse pregnancy outcomes as a result of systemic line 27 racial inequities and are more likely to be under scrutiny of state line 28 systems like child welfare or immigration.
line 29 (k) The threat of criminal prosecutions or ci vil penalties on line 30 pregnant people through child welf are, immigration, housing, or line 31 other legal systems has a harmful effect on individual and public line 32 health. When a person fears state action being taken against them line 33 related to their pregnancy, they are less likely to seek medical care line 34 when they need it. If they do seek care, punishing them for actual, line 35 potential, or alle ged pre gnancy outcomes interferes with line 36 professional care and endangers the relationship between providers line 37 and patients. Existing law pr ohibits a positive toxicolo gy screen line 38 at the time of delivery of an infant fr om being, in and of itself , a line 39 sufficient basis for reporting child abuse or neglect. 95 — 4 — AB 2223
line 1 (l) That is why major medical groups like the American Medical line 2 Association, the American Colle ge of Obstetricians and line 3 Gynecologists, and the American Public Health Association oppose line 4 civil and criminal penalties for actual, potential, or alle ged line 5 pregnancy outcomes.
line 6 SEC. 2. Section 27491 of the Government Code is amended line 7 to read:
line 8 27491. It shall be the duty of the coroner to inquire into and line 9 determine the circumstances, manner , and cause of all violent, line 10 sudden, or unusual deaths; unattended deaths; deaths where the line 11 deceased has not been attended by either a physician or a registered line 12 nurse, who is a member of a hospice care interdisciplinary team, line 13 as defined by subdi vision (g) of Section 1746 of the Health and line 14 Safety Code in the 20 days before death; kno wn or suspected line 15 homicide, suicide, or accidental poisoning; deaths kno wn or line 16 suspected as resulting in whole or in part from or related to accident line 17 or injury either old or recent; deaths due to drowning, fire, hanging, line 18 gunshot, stabbing, cutting, exposure, starvation, acute alcoholism, line 19 drug addiction, strangulation, aspiration, or where the suspected line 20 cause of death is sudden infant death syndrome; death in whole or line 21 in part occasioned by criminal means; deaths associated with a line 22 known or alleged rape; deaths in prison or while under sentence; line 23 deaths kno wn or suspected as due to contagious disease and line 24 constituting a public hazard; deaths from occupational diseases or line 25 occupational hazards; deaths of patients in state hospitals serving line 26 the mentally disordered and operated by the State Department of line 27 State Hospitals; deaths of patients in state hospitals serving the line 28 developmentally disabled and operated by the State Department line 29 of Developmental Services; deaths under circumstances that afford line 30 a reasonable ground to suspect that the death w as caused by the line 31 criminal act of another; and any deaths reported by physicians or line 32 other persons having knowledge of death for inquiry by coroner . line 33 Inquiry pursuant to this section does not include those investigative line 34 functions usually performed by other law enforcement agencies. line 35 (a) If the coroner conducts an inquiry pursuant to this section, line 36 the coroner or a deputy shall personally sign the certificate of line 37 death. If the death occurred in a state hospital, the coroner shall line 38 forward a copy of the report to the state agency responsible for the line 39 state hospital.
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line 1 (b) The coroner shall have discretion to determine the extent of line 2 inquiry to be made into an y death occurring under natural line 3 circumstances and falling within the provisions of this section, and line 4 if inquiry determines that the ph ysician of record has sufficient line 5 knowledge to reasonably state the cause of a death occurring under line 6 natural circumstances, the coroner may authorize that ph ysician line 7 to sign the certificate of death.
line 8 (c) For the purpose of inquiry, the coroner shall have the right line 9 to e xhume the body of a deceased person when necessary to line 10 discharge the responsibilities set forth in this section. line 11 (d) A funeral director, physician, or other person who has charge line 12 of a deceased person’ s body, when death occurred as a result of line 13 any of the causes or circumstances described in this section, shall line 14 immediately notify the coroner. A person who does not notify the line 15 coroner as required by this section is guilty of a misdemeanor. line 16 SEC. 3. Section 103000 of the Health and Safety Code is line 17 repealed.
line 18 SEC. 4. Section 103005 of the Health and Safety Code is line 19 amended to read:
line 20 103005. (a) The coroner shall, within three days after line 21 examination of the fetus, state on the certificate of fetal death the line 22 time of fetal death, the direct causes of the fetal death, the line 23 conditions, if any, that gave rise to these causes, and other medical line 24 and health section data as may be required on the certificate, and line 25 shall sign the certificate in attest to these facts. The coroner shall, line 26 within three days after e xamining the body , deli ver the death line 27 certificate to the attending funeral director.
line 28 (b) This section shall not be used to establish, bring, or support line 29 a criminal prosecution or ci vil cause of action seeking damages line 30 against any person, whether or not they were the person who was line 31 pregnant with the fetus. person who is immune from liability under line 32 Section 123467. Through its courts and statutes and under its line 33 Constitution, California protects the right to reproductive privacy, line 34 and it is the intent of the Legislature to reaffirm these protections. line 35 SEC. 5. Section 123462 of the Health and Safety Code is line 36 amended to read:
line 37 123462. The Le gislature finds and declares that e very line 38 individual possesses a fundamental right of pri vacy with respect line 39 to personal reproductive decisions, which entails the right to make line 40 and effectuate decisions about all matters relating to pre gnancy, 95 — 6 — AB 2223
line 1 including prenatal care, childbirth, postpartum care, contraception, line 2 sterilization, abortion care, miscarriage management, and infertility line 3 care. Accordingly, it is the public policy of the State of California line 4 that:
line 5 (a) Every individual has the fundamental right to choose or line 6 refuse birth control.
line 7 (b) Every pregnant individual or individual who may become line 8 pregnant has the fundamental right to choose to bear a child or to line 9 choose to ha ve and to obtain an abortion, e xcept as specifically line 10 limited by this article.
line 11 (c) The state shall not den y or interfere with an indi vidual’s line 12 the fundamental right of a pr egnant individual or an individual line 13 who may become pregnant to choose to bear a child or to choose line 14 to have and to obtain an abortion, except as specifically permitted line 15 by this article.
line 16 SEC. 6. Section 123466 of the Health and Safety Code is line 17 amended to read:
line 18 123466. The state shall not den y or interfere with a pre gnant line 19 person’s right to choose or obtain an abortion prior to viability of line 20 the fetus, or when the abortion is necessary to protect the life or line 21 health of the pregnant person.
line 22 SEC. 7. Section 123467 is added to the Health and Safety Code, line 23 to read:
line 24 123467. (a) Notwithstanding any other law, a person shall not line 25 be subject to ci vil or criminal liability or penalty , or otherwise line 26 deprived of their rights under this article, based on their actions line 27 or omissions with respect to their pre gnancy or actual, potential, line 28 or alleged pregnancy outcome, including miscarriage, stillbirth, line 29 or abortion, or perinatal death due to causes that occurred in utero. line 30 (b) A person who aids or assists a pregnant person in exercising line 31 their rights under this article shall not be subject to civil or criminal line 32 liability or penalty, or otherwise be deprived of their rights, based line 33 solely on their actions to aid or assist a pre gnant person in line 34 exercising their rights under this article with the pregnant person’s line 35 voluntary consent.
line 36 SEC. 8. Section 123468 of the Health and Safety Code is line 37 amended to read:
line 38 123468. The performance of an abortion is unauthorized if line 39 performed by someone other than the pregnant person and if either line 40 of the following is true:
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line 1 (a) The person performing the abortion is not a health care line 2 provider authorized to perform an abortion pursuant to Section line 3 2253 of the Business and Professions Code.
line 4 (b) The abortion is performed on a viable fetus, and both of the line 5 following are established:
line 6 (1) In the good f aith medical judgment of the ph ysician, the line 7 fetus was viable.
line 8 (2) In the good f aith medical judgment of the ph ysician, line 9 continuation of the pregnancy posed no risk to life or health of the line 10 pregnant person.
line 11 SEC. 9. Section 123469 is added to the Health and Safety Code, line 12 to read:
line 13 123469. (a) A party aggrieved by conduct or re gulation in line 14 violation of this article whose r eproductive rights ar e protected line 15 by this article and whose r eproductive rights are interfered with line 16 by conduct or by a statute, ordinance, or other state or local rule, line 17 regulation, or enactment in violation of this article may bring a line 18 civil action against an offending state actor in a state superior court. line 19 (b) Whoever denies a right protected by this article, or aids, line 20 incites, or conspires in that denial, is liable for each and e very line 21 offense for the actual damages suffered by any person denied that line 22 right and, in addition, all of the following:
line 23 (1) An amount to be determined by a jury , or a court sitting line 24 without a jury, for exemplary damages.
line 25 (2) A civil penalty of twenty-fiv e thousand dollars ($25,000), line 26 to be a warded to the person denied the right protected by this line 27 article.
line 28 (3) Preventive relief, including permanent or temporary line 29 injunction, restraining order, or other order ag ainst the person or line 30 persons responsible for the conduct, as the complainant deems line 31 necessary to ensure the full enjo yment of the rights described in line 32 this article.
line 33 (4) Upon a motion, a court shall a ward reasonable attorne y’s line 34 fees and costs, including e xpert witness fees and other litig ation line 35 expenses, to a plaintif f who is a pre vailing party in an action line 36 brought pursuant to this section. In awarding reasonable attorney’s line 37 fees, the court shall consider the degree to which the relief obtained line 38 relates to the relief sought.
line 39 (c) An action under subdivision (b) shall be commenced within line 40 three years of the alleged practice violation of this article. 95 — 8 — AB 2223
line 1 (d) (1) A party aggrieved by conduct or regulation in violation line 2 of this article may also bring a civil action pursuant to Section 52.1 line 3 of the Ci vil Code. Notwithstanding Section 821.6 of the line 4 Government Code, a ci vil action pursuant to Section 52.1 of the line 5 Civil Code may be based upon instituting or prosecuting an y line 6 judicial or administrative proceeding in violation of this article. line 7 (2) For purpose of establishing liability pursuant to this line 8 subdivision, the criminal in vestigation, arrest, or prosecution, or line 9 threat of in vestigation, arrest, or prosecution, of a person with line 10 respect to their pregnancy or actual, potential, or alleged pregnancy line 11 outcome, constitutes “threat, intimidation, or coercion” pursuant line 12 to Section 52.1 of the Civil Code.
line 13 (e) Sections 825, 825.2, 825.4, and 825.6 of the Go vernment line 14 Code, providing for indemnification of an emplo yee or former line 15 employee of a public entity, apply to any cause of action brought line 16 under this section ag ainst an employee or former emplo yee of a line 17 public entity.
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