Agenda Item No. 7
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: mond A. Casey, City Manager
Shane Massoud, Public Information Officer/Grant Coordinator FOR: City Council Meeting of April 25, 2022
SUBJECT: Assembly Bill 2223 (Wicks) — Reproductive Health RECOMMENDATION:
That City Council review and approve a letter of opposition for Assembly Bill 2223 (Wicks) which seeks to change the way a coroner certificates a fetal death.
BACKGROUND:
In February 2022, Assemblymember Buffy Wicks, who represents California's 15th Assembly District, introduced Assembly Bill (AB) 2223 which seeks to change the way a coroner certificates a fetal death.
Current California law requires a coroner to inquire into and determine the circumstances, manner, and cause of all specified types of death, including but not limited to violent, sudden, or unusual deaths; and deaths related to or following known or suspected self-induced or criminal abortion. The law specifies that such an inquiry does not include those investigative functions usually performed by other law enforcement agencies.
Additionally, the law requires a coroner, within three days after examination of a fetus, to state on the certificate of fetal death the time of fetal death, the direct causes of the fetal death, the conditions, if any, that gave rise to these causes, and other medical and health section data as may be required on the certificate, and to sign the certificate to attest to these facts. The law requires a coroner, within three days after examining the body, to deliver the death certificate to the attending funeral director.
DISCUSSION:
City Staff is recommending that City Council approve a letter of opposition for Assembly Bill 2223 (Wicks) which seeks to change the way a coroner certificates a fetal death.
This proposed bill would delete the requirement that a coroner hold inquests for deaths related to or following known or suspected self-induced or criminal abortion and the requirement that an unattended fetal death be treated as a death without medical attendance. The current bill prohibits 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. In addition, the bill -138-
prohibits a person from being subject to civil or criminal liability 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.
AB 2223 clarifies 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 authorizes an individual aggrieved by a violation of the Reproductive Privacy Act to bring a civil action against an offending state actor, and requires a court, upon a motion, to award reasonable attorneys' fees and costs to a prevailing plaintiff.
According to the author, a critical part of realizing reproductive justice for people in California is clarifying that nobody will be investigated, prosecuted, or incarcerated for their actual, potential, or alleged pregnancy outcomes. In California, the misuse of state power to prosecute people for their 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 who have just given birth, had an abortion, or experienced a pregnancy loss to police, triggering harmful investigations and even unlawful prosecutions, and this threat of criminal prosecution has a harmful effect on individual and public health.
The author states that this bill protects reproductive freedom by clarifying that the Reproductive Privacy Act prohibits pregnancy criminalization and creates a private right of action for people whose rights have been violated to seek accountability using civil courts. It would also remove outdated provisions and ensure that information collected about pregnancy loss is not used to target people through criminal or civil legal systems. The author concludes that as other states that are hostile to abortion rights are attempting to impose criminal or civil penalties on people who assist others in obtaining an abortion, California must be able to support friends, community members, and loved ones with their abortion without being investigated, arrested, or prosecuted.
If not amended, the bill will specifically:
1) Delete the requirement for a coroner, under existing law, to inquire into and determine the circumstances, manner, and cause of all deaths related to or following known or suspected self-induced or criminal abortion.
2) Repeal a provision of existing law requiring certain fetal deaths registered by a coroner to be handled as deaths without medical attendance. 3) Clarify that existing law requiring a coroner to examine a fetus and state on the certificate of fetal death, among other things, the direct causes of the fetal death and the conditions, if any, that gave rise to the cause or causes, is prohibited from being used to establish, bring, or support a criminal prosecution or civil cause of action seeking damages against any person, whether or not they were the person who was pregnant with the fetus. 4) Revise the Reproductive Privacy Act to state that the Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, which entails the right to make and effectuate decisions about all -139-
matters relating to pregnancy, including prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care. 5) Prohibit regardless of any other law, a person from being 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 due to a pregnancy -related cause. 6) Prohibit a person who aids or assists a pregnant person in exercising their rights as described in 5) above, from being subject to civil or criminal liability or penalty, or otherwise be deprived of their rights, based solely on their actions to aid or assist a pregnant person in exercising their rights, with the pregnant person's voluntary consent. 7) Clarify that an abortion is unauthorized if it meets the criteria specified in 4) in existing law below, and it is performed by someone other than the pregnant person. 8) Allow a party aggrieved by conduct or regulation in violation of the Reproductive Privacy Act to bring a civil action against an offending state actor in a state superior court. 9) State that whoever denies the right protected by this bill, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
a) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages; and
b) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right protected by this bill. Requires an action to be commenced within three years of the alleged practice in violation of this bill; and, c) Preventive relief, including permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this bill. 10) Require a court, upon a motion, to award reasonable attorney's fees and costs, including expert witness fees and other litigation expenses, to a plaintiff who is a prevailing party in an action brought pursuant to 8), above.
11) Allow a party aggrieved by conduct or regulation in violation of this bill to also bring a civil action pursuant to the Bane Civil Rights Act.
12) Change gendered terminology in relevant code sections and eliminates the term "crime against nature" from existing law.
On Wednesday, April 20, AB 2223 passed out of the Assembly Committee on Health (Ayes 11.
Noes 3.). The bill will now move forward to the Assembly Appropriations Committee.
Attachments: Letter of Opposition
Assembly Committee on Health Analysis
-140-
CITY OF
April 25, 2022
Assemblymember Buffy Wick,
California 15"' Assembly District
1515 Clay Street, Suite 2201
Oakland, CA 94612
RE: Assembly Bill 2223: Reproductive Health
Dear Assemblymember Buffy Wick:
The City of Yucaipa opposes Assembly Bill 2223 and its efforts to change the way a coroner certificates a fetal death. This bill imposes harmful restrictions on a coroner's ability to inquire into and determine the circumstances, manner, and cause of all specified types of death, especially as it relates to known or suspected self-induced or criminal abortion. If passed, this bill would certainty have unintentional consequences that negatively impact those who you are trying to protect. The City of Yucaipa believes that the information provided by a coroner's investigation is essential to creating a clear sequence of events.
The City encourages you to pull this bill from its respective committee or floor hearing.
Sincerely,
David Avila
Mayor
Greg Bogh
Councilmember
cc:
Bobby Duncan
Councilmember
City of Yucaipa
34272 Yucaipa Blvd, Yucaipa, CA 92399
909_17�17_ 2489
Justin Beaver
Mayor Pro Tern
Jon Thorp
Councilmember
4/19/22, 8:58 AM
Assembly Bill Policy Committee Analysis
AB 2223
Date of Hearing: April 19, 2022
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
AB 2223 (Wicks) — As Amended April 6, 2022
SUBJECT: Reproductive health.
SUMMARY: Deletes the requirement that a coroner hold inquests for deaths related to or following known or suspected self-induced or criminal abortion and the requirement that an unattended fetal death be treated as a death without medical attendance. Prohibits 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. Prohibits a person from being subject to civil or criminal liability 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. Clarifies 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. Authorizes an individual aggrieved by a violation of the Reproductive Privacy Act to bring a civil action against an offending state actor, and requires a court, upon a motion, to award reasonable attorneys' fees and costs to a prevailing plaintiff.
Specifically, this bill:
1) Deletes the requirement for a coroner, under existing law, to inquire into and determine the circumstances, manner, and cause of all deaths related to or following known or suspected self-induced or criminal abortion. 2) Repeals a provision of existing law requiring certain fetal deaths registered by a coroner to be handled as are deaths without medical attendance.
3) Clarifies that existing law requiring a coroner to examine a fetus and state on the certificate of fetal death, among other things, the direct causes of the fetal death, the conditions, if any, that gave rise to the cause or causes, is prohibited from being used to establish, bring, or support a criminal prosecution or civil cause of action seeking damages against any person, whether or not they were the person who was pregnant with the fetus.
4) Revises the Reproductive Privacy Act to state that the Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.
5) Prohibits regardless of any other law, a person from being 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 due to a pregnancy -related cause.
6) Prohibits a person who aids or assists a pregnant person in exercising their rights as described in 5) above, from being subject to civil or criminal liability or penalty, or otherwise be deprived of their rights, based solely on their actions to aid or assist a pregnant person in exercising their rights, with the pregnant person's voluntary consent.
7) Clarifies that an abortion is unauthorized if it meets the criteria specified in 4) in existing law below, and it is performed by someone other than the pregnant person.
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Assembly Bill Policy Committee Analysis
b) The abortion is performed on a viable fetus, and both of the following are established:
i) In the good faith medical judgment of the physician, the fetus was viable; and, ii) In the good faith medical judgment of the physician, continuation of the pregnancy posed no risk to life or health of the pregnant woman.
5) Prohibits the State of California from denying or interfering with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.
6) Establishes the Bane Civil Rights Act which allows any 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 California, have been interfered with, or attempted to be interfered with by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, to institute and prosecute in their own name and on their own behalf a civil action for damages, including, but not limited to, damages, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including appropriate equitable and declaratory relief to eliminate a pattern or practice of conduct.
FISCAL EFFECT: Unknown. This bill has not been analyzed by a fiscal Committee.
COMMENTS:
1) PURPOSE OF THIS BILL. According to the author, a critical part of realizing reproductive justice for people in California is clarifying that nobody will be investigated, prosecuted, or incarcerated for their actual, potential, or alleged pregnancy outcomes. In California, the misuse of state power to prosecute people for their 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 who have just given birth, had an abortion, or experienced a pregnancy loss to police, triggering harmful investigations and even unlawful prosecutions, and this threat of criminal prosecution has a harmful effect on individual and public health.
The author states that this bill protects reproductive freedom by clarifying that the Reproductive Privacy Act prohibits pregnancy criminalization and creates a private right of action for people whose rights have been violated to seek accountability using civil courts. It would also remove outdated provisions and ensure that information collected about pregnancy loss is not used to target people through criminal or civil legal systems. The author concludes that as other states that are hostile to abortion rights are attempting to impose criminal or civil penalties on people who assist others in obtaining an abortion, California must be able to support friends, community members, and loved ones with their abortion without being investigated, arrested, or prosecuted.
2) BACKGROUND. The U.S. Supreme Court recognized the constitutional right to abortion in 1973 in Roe u Wade, and subsequent decisions have reaffirmed that right. The Court has held that a state cannot ban abortion before viability (the point at which a fetus can survive outside the uterus), and that any restriction on abortion after viability must contain exceptions to protect the life and health of the pregnant person. Any pre -viability abortion restriction cannot create an "undue burden" by placing a substantial obstacle in the path of a person seeking an abortion.
In 2021, the State of Texas enacted a civilly enforced abortion restriction that prohibited any person from performing, or aiding and abetting, a person in obtaining an abortion after the detection of a "fetal heartbeat." That law prohibited state enforcement, and instead allows third parties to file lawsuits to enforce the law, regardless of the plaintiff's relationship to the defendant. The Texas law does not require the plaintiff to live in the state or suffer any actual harm. On Thursday April 7, 2022, a Texas woman was arrested and charged with murder after she allegedly terminated her own pregnancy. Police said she "intentionally and knowingly caused the death of an individual by self-induced abortion." The charges were subsequently https://ctweb.capitoltrack.com/Bills/21 Bills/asm/ab_2201-2250/ab_2223_cfa1344,6657_asm_comm.html 3/8
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Assembly Bill Policy Committee Analysis
literature demonstrating that reproductive -age women can self -screen for hormonal contraception and suggests that similar self -screening for medication abortion could be accomplished without a provider. d) Safety of self -managed abortion: Before Roe a Wade legalized abortion in the United States, pregnant people were often compelled to pursue dangerous methods to terminate a pregnancy. Although the harms of "pre -Roe" clandestine abortions were of great public health concern, applying past experiences to 2022 and beyond ignores the highly safe and effective models for self -managed abortion that exist today.
A 2018 study in the journal Contraception, "Exploring the feasibility of obtaining mifepristone and misoprostol from the internet," evaluated the quality of mifepristone and misoprostol obtained from 18 different online vendors without a prescription and showed that all of the pills were of high quality and contained an appropriate and expected amount of the active ingredients.
Opponents may argue that some people use less efficacious self -managed abortion methods, such as objects and herbs, that could cause the pregnant person more harm and delay care. However, according to the American Public Health Association (APHA), decriminalizing all forms of self -managed abortion would ensure that those with complications or incomplete abortions could access care without fear of legal repercussions. As noted by ACOG, such fears may result in negative health outcomes by eroding trust in the medical system and deterring people from seeking care when needed. e) Access to abortion. According to APHA, in the past decade, U.S. abortion access has become increasingly restricted. Since 2011, nearly 500 abortion restrictions have been enacted, including laws banning abortion in certain circumstances and laws that impose medically unnecessary requirements on abortion care. Studies of multiple states have demonstrated adverse impacts of restrictive state laws, including delays in accessing care due to increased travel distance; economic burdens from lost wages, childcare, and travel costs; increased stigma; and reduced abortion rates. These barriers disproportionately impact racial and ethnic minority individuals, people with lower incomes, immigrants, people with disabilities, LGBTQ (lesbian, gay, bisexual, transgender, queer or questioning) communities, and people living in rural and medically underserved areas.
Approximately 7% of U.S. women reported having attempted to self -manage abortion in their lifetime. A cross -sectional study of requests from U.S. residents for self -managed medication abortion through the online service Aid Access between March 2018 and March 2020 identified 57,506 requests from individuals in all 50 states. Barriers to accessing abortion during the COVID-19 pandemic have led to further increases in demand. Aid Access reported an increase of 27% in the rate of requests for self - managed medication abortion from March 20 to April 11, 2020, relative to before the pandemic. 3) SUPPORT. This bill is co -sponsored by ACLU California Action, Black Women for Wellness, California Latinas for Reproductive Justice, If/When/How: Lawyering for Reproductive Justice, NARAL Pro -Choice California, and Planned Parenthood Affiliates of California. The co-sponsors state that it is not a crime to have an abortion, miscarriage, or experience pregnancy loss. Nevertheless, despite clear law forbidding these charges and protecting the right to make decisions about pregnancy, Californians have been charged with homicide offenses for pregnancy losses. Worse, there is frequently no recourse for people who have been harmed by the legal system as a result of their pregnancy loss or self -managed abortion. A critical part of realizing reproductive justice for all Californians is to ensure that this never happens again. The co-sponsors note that the threat of criminal prosecution has a harmful effect on individual and public health, because people who fear prosecution due to their health issues are deterred from seeking care. This is a critical issue for Black, Indigenous, and other people of color, who are more likely to experience adverse pregnancy outcomes as a result of systemic racial inequities and also more likely to be under scrutiny of punitive state systems. It is also a concern for immigrants, queer and trans people, young people, and others who may self - manage abortions because care in formal medical systems is inaccessible. The co-sponsors conclude that states hostile to abortion rights are attempting to impose criminal or civil penalties on people who assist others in obtaining an abortion. Californians must be able to support friends, community members, and loved ones with their abortion without being investigated, arrested, or prosecuted. https://ctweb.capitoltrack.com/Bills/21 Bills/asm/ab_2201-2250/ab_2223_cfa}444657_asm_comm.html 5/8
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Assembly Bill Policy Committee Analysis
6) PREVIOUS LEGISLATION. SB 1301 (Sheila Kuehl), Chapter 385, Statutes of 2002, enacts the Reproductive Privacy Act, which provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions, including the fundamental right to choose or refuse birth control, and the fundamental right to choose to bear a child or obtain an abortion. 7) DOUBLE REFERRAL. This bill has been double referred. It passed the Assembly Committee on Judiciary with a vote of 7-2 on April 5, 2022.
REGISTERED SUPPORT / OPPOSITION:
Support
ACLU California Action (co-sponsor)
Black Women for Wellness (co-sponsor)
California Latinas for Reproductive Justice (co-sponsor) If/When/How: Lawyering for Reproductive Justice (co-sponsor) NARAL Pro -Choice California (co-sponsor)
Planned Parenthood Affiliates of California (co-sponsor) Access Reproductive Justice
American College of Obstetricians and Gynecologists District IX Asian Americans Advancing Justice - California
California Coalition for Women Prisoners
California for Safety and Justice
California Medical Association
California Nurse Midwives Association
Californians United for a Responsible Budget
Citizens for Choice
Courage California
Disability Rights California
Ella Baker Center for Human Rights
Initiate Justice
National Center for Youth Law
National Health Law Program
Survived & Punished
Tides Advocacy
Urge: Unite for Reproductive & Gender Equity
Women's Foundation California
Opposition
Americans United for Life
California Capitol Connection
California Family Council
Californians for Life
Calvary Chapel of Placerville
Catholic Families 4 Freedom CA
Children's Health Defense California Chapter
Concerned Women for America
Eagle Forum of California
Faith Baptist Church of Wheatland
Frederick Douglass Foundation of California
Liberty Baptist Church of Norwalk, CA
Life Legal Defense Foundation
National Center for Law & Policy
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Assembly Bill Policy Committee Analysis
AB 2223
Date of Hearing: April 19, 2022
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
AB 2223 (Wicks) — As Amended April 6, 2022
SUBJECT: Reproductive health.
SUMMARY: Deletes the requirement that a coroner hold inquests for deaths related to or following known or suspected self-induced or criminal abortion and the requirement that an unattended fetal death be treated as a death without medical attendance. Prohibits 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. Prohibits a person from being subject to civil or criminal liability 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. Clarifies 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. Authorizes an individual aggrieved by a violation of the Reproductive Privacy Act to bring a civil action against an offending state actor, and requires a court, upon a motion, to award reasonable attorneys' fees and costs to a prevailing plaintiff.
Specifically, this bill:
1) Deletes the requirement for a coroner, under existing law, to inquire into and determine the circumstances, manner, and cause of all deaths related to or following known or suspected self-induced or criminal abortion. 2) Repeals a provision of existing law requiring certain fetal deaths registered by a coroner to be handled as are deaths without medical attendance.
3) Clarifies that existing law requiring a coroner to examine a fetus and state on the certificate of fetal death, among other things, the direct causes of the fetal death, the conditions, if any, that gave rise to the cause or causes, is prohibited from being used to establish, bring, or support a criminal prosecution or civil cause of action seeking damages against any person, whether or not they were the person who was pregnant with the fetus.
4) Revises the Reproductive Privacy Act to state that the Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.
5) Prohibits regardless of any other law, a person from being 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 due to a pregnancy -related cause.
6) Prohibits a person who aids or assists a pregnant person in exercising their rights as described in 5) above, from being subject to civil or criminal liability or penalty, or otherwise be deprived of their rights, based solely on their actions to aid or assist a pregnant person in exercising their rights, with the pregnant person's voluntary consent.
7) Clarifies that an abortion is unauthorized if it meets the criteria specified in 4) in existing law below, and it is performed by someone other than the pregnant person.
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Assembly Bill Policy Committee Analysis
8) Allows a party aggrieved by conduct or regulation in violation of the Reproductive Privacy Act to bring a civil action against an offending state actor in a state superior court. 9) States that whoever denies the right protected by this bill, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
a) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages; b) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right protected by this bill. Requires an action to be commenced within three years of the alleged practice in violation of this bill; and,
c) Preventive relief, including permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this bill.
10) Requires a court, upon a motion, to award reasonable attorney's fees and costs, including expert witness fees and other litigation expenses, to a plaintiff who is a prevailing party in an action brought pursuant to 8), above.
11) Allows a party aggrieved by conduct or regulation in violation of this bill to also bring a civil action pursuant to the Bane Civil Rights Act.
12) Changes gendered terminology in relevant code sections and eliminates the term "crime against nature" from existing law.
EXISTING LAW:
1) Requires a coroner to inquire into and determine the circumstances, manner, and cause of all specified types of death, including but not limited to violent, sudden, or unusual deaths; and deaths related to or following known or suspected self-induced or criminal abortion. Specifies that such an inquiry does not include those investigative functions usually performed by other law enforcement agencies. 2) Requires a coroner, within three days after examination of a fetus, to state on the certificate of fetal death the time of fetal death, the direct causes of the fetal death, the conditions, if any, that gave rise to these causes, and other medical and health section data as may be required on the certificate, and to sign the certificate to attest to these facts. Requires a coroner, within three days after examining the body, to deliver the death certificate to the attending funeral director.
3) Establishes, in the Reproductive Privacy Act, that the Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, and that it is the public policy of the State of California that:
a) Every individual has the fundamental right to choose or refuse birth control; b) Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, except as specifically limited by law; and,
c) That the state cannot deny or interfere with a woman's fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically permitted. 4) States that the performance of an abortion is unauthorized if either of the following is true:
a) The person performing the abortion is not a health care provider authorized to perform an abortion pursuant to existing law; or,
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Assembly Bill Policy Committee Analysis
b) The abortion is performed on a viable fetus, and both of the following are established:
i) In the good faith medical judgment of the physician, the fetus was viable; and, ii) In the good faith medical judgment of the physician, continuation of the pregnancy posed no risk to life or health of the pregnant woman.
5) Prohibits the State of California from denying or interfering with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.
6) Establishes the Bane Civil Rights Act which allows any 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 California, have been interfered with, or attempted to be interfered with by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, to institute and prosecute in their own name and on their own behalf a civil action for damages, including, but not limited to, damages, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including appropriate equitable and declaratory relief to eliminate a pattern or practice of conduct.
FISCAL EFFECT: Unknown. This bill has not been analyzed by a fiscal Committee.
COMMENTS:
1) PURPOSE OF THIS BILL. According to the author, a critical part of realizing reproductive justice for people in California is clarifying that nobody will be investigated, prosecuted, or incarcerated for their actual, potential, or alleged pregnancy outcomes. In California, the misuse of state power to prosecute people for their 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 who have just given birth, had an abortion, or experienced a pregnancy loss to police, triggering harmful investigations and even unlawful prosecutions, and this threat of criminal prosecution has a harmful effect on individual and public health.
The author states that this bill protects reproductive freedom by clarifying that the Reproductive Privacy Act prohibits pregnancy criminalization and creates a private right of action for people whose rights have been violated to seek accountability using civil courts. It would also remove outdated provisions and ensure that information collected about pregnancy loss is not used to target people through criminal or civil legal systems. The author concludes that as other states that are hostile to abortion rights are attempting to impose criminal or civil penalties on people who assist others in obtaining an abortion, California must be able to support friends, community members, and loved ones with their abortion without being investigated, arrested, or prosecuted.
2) BACKGROUND. The U.S. Supreme Court recognized the constitutional right to abortion in 1973 in Roe u Wade, and subsequent decisions have reaffirmed that right. The Court has held that a state cannot ban abortion before viability (the point at which a fetus can survive outside the uterus), and that any restriction on abortion after viability must contain exceptions to protect the life and health of the pregnant person. Any pre -viability abortion restriction cannot create an "undue burden" by placing a substantial obstacle in the path of a person seeking an abortion.
In 2021, the State of Texas enacted a civilly enforced abortion restriction that prohibited any person from performing, or aiding and abetting, a person in obtaining an abortion after the detection of a "fetal heartbeat." That law prohibited state enforcement, and instead allows third parties to file lawsuits to enforce the law, regardless of the plaintiff's relationship to the defendant. The Texas law does not require the plaintiff to live in the state or suffer any actual harm. On Thursday April 7, 2022, a Texas woman was arrested and charged with murder after she allegedly terminated her own pregnancy. Police said she "intentionally and knowingly caused the death of an individual by self-induced abortion." The charges were subsequently https:Hctweb.capitoltrack.com/Bills/21 Bills/asm/ab_2201-2250/ab_2223_cfa}4V657_asm_comm.html 3/8
4/19/22, 8:58 AM Assembly Bill Policy Committee Analysis dismissed by the District Attorney.
In California, Adora Perez was charged with murder in 2018 after she delivered a stillborn baby at a hospital in California's Central Valley, with authorities alleging that methamphetamine use while pregnant was responsible. Faced with the possibility of life in prison, Perez accepted a plea deal, then lost an appeal and was sentenced to I 1 years in prison. The 32-year-old inmate is now at the center of a legal battle between a team of lawyers who believe she was unjustly convicted and a district attorney who believes Perez is a criminal. If the prosecutor prevails, women's rights advocates say, it will open the door to charges against any woman who suffers a miscarriage or stillbirth. Perez was granted transfer from prison to county jail with the release conditions that Perez take part in a drug treatment program, as the case moves forward.
On December 1, 2021, the U.S. Supreme Court heard oral arguments in Dobbs a Jackson Women's Health Organization, a case regarding a Mississippi law that would ban abortion after 15 weeks of pregnancy. This case is a direct challenge to Roe a Wade. Dobbs a Jackson Women's Health Organization marks the first time the Supreme Court will rule on the constitutionality of a pre -viability abortion ban since Roe a Wade.
The Court's ruling in Roe recognized that the decision whether to continue a pregnancy or have an abortion, which impacts a person's body, health, family and future, belongs to the individual, not the government. The state of Mississippi has asked the Court not only to uphold its abortion ban, but to also overrule Roe and find there is no constitutional right to abortion. A decision is expected by the end of the Supreme Court's term in June 2022.
a) Abortion. According to the Centers for Disease Control and Prevention (CDC), a legal induced abortion is defined as an intervention performed by a licensed clinician that is intended to terminate an ongoing pregnancy. The CDC reports that in 2019, 629,898 legal induced abortions were reported to CDC from 49 reporting areas. Among 48 reporting areas with data each year during 2010 to 2019, in 2019, a total of 625,346 abortions were reported, the abortion rate was 11.4 abortions per 1,000 women aged 15 to 44 years, and the abortion ratio was 195 abortions per 1,000 live births.
From 2010 to 2019, the number, rate, and ratio of reported abortions decreased 18%, 21 %, and 13%, respectively. However, compared with 2018, in 2019, the total number increased 2%, the rate of reported abortions increased by 0.9%, and the abortion ratio increased by 3%. b) Fetal assault laws. According to the American College of Obstetricians and Gynecologists (AGOG) policy statement, "Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period," as of 2018, 38 states had laws in which the "victim" of a crime can include a fetus, generally called "fetal assault," "fetal homicide," or "fetal protection" laws. Twenty-nine states apply these laws at any stage of gestation during pregnancy. Although the majority of these states prohibit charging pregnant people with crimes for the outcomes of their own pregnancies, fetal assault laws and similar statutes have been adopted across the United States as a way to limit behaviors during pregnancy that legislators deem harmful to the fetus. Often these laws are passed under the guise of protecting pregnant people, but instead they are being used to punish individuals for a wide range of actions. For example, pregnant people have been charged with committing crimes for attempting suicide, substance use disorder, and suspicion of self -managed abortion. ACOG notes that these laws increase the risk of prosecution, especially for those from marginalized communities, establishing a form of criminal liability that applies only to pregnant people. For example, most of the people arrested for self -managed abortion came to the attention of law enforcement when they sought emergency medical care. The fear of interrogation, arrest, and prosecution while seeking health care services and medical treatment creates a barrier to accessing care.
c) Self -managed medication abortion. The mifepristone and misoprostol or misoprostol-only regimens for medication abortion are supported by U.S. and international medical organizations, including the World Health Organization. The medication abortion regimen, approved by the U.S. Food and Drug Administration, is 200 mg of mifepristone taken orally, followed by 800 mcg of misoprostol taken buccally, (or vaginally) 24 to 48 hours later. ACOG Committee Opinion 788 details the strong body of https://ctweb.capitoltrack.com/Bills/2lBills/asm/ab 2201-2250/ab 222Lcf"V957 asm comm.html 4/8
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Assembly Bill Policy Committee Analysis
literature demonstrating that reproductive -age women can self -screen for hormonal contraception and suggests that similar self -screening for medication abortion could be accomplished without a provider. d) Safety of self -managed abortion: Before Roe a Wade legalized abortion in the United States, pregnant people were often compelled to pursue dangerous methods to terminate a pregnancy. Although the harms of "pre -Roe" clandestine abortions were of great public health concern, applying past experiences to 2022 and beyond ignores the highly safe and effective models for self -managed abortion that exist today.
A 2018 study in the journal Contraception, "Exploring the feasibility of obtaining mifepristone and misoprostol from the internet," evaluated the quality of mifepristone and misoprostol obtained from 18 different online vendors without a prescription and showed that all of the pills were of high quality and contained an appropriate and expected amount of the active ingredients.
Opponents may argue that some people use less efficacious self -managed abortion methods, such as objects and herbs, that could cause the pregnant person more harm and delay care. However, according to the American Public Health Association (APHA), decriminalizing all forms of self -managed abortion would ensure that those with complications or incomplete abortions could access care without fear of legal repercussions. As noted by ACOG, such fears may result in negative health outcomes by eroding trust in the medical system and deterring people from seeking care when needed. e) Access to abortion. According to APHA, in the past decade, U.S. abortion access has become increasingly restricted. Since 2011, nearly 500 abortion restrictions have been enacted, including laws banning abortion in certain circumstances and laws that impose medically unnecessary requirements on abortion care. Studies of multiple states have demonstrated adverse impacts of restrictive state laws, including delays in accessing care due to increased travel distance; economic burdens from lost wages, childcare, and travel costs; increased stigma; and reduced abortion rates. These barriers disproportionately impact racial and ethnic minority individuals, people with lower incomes, immigrants, people with disabilities, LGBTQ (lesbian, gay, bisexual, transgender, queer or questioning) communities, and people living in rural and medically underserved areas.
Approximately 7% of U.S. women reported having attempted to self -manage abortion in their lifetime. A cross -sectional study of requests from U.S. residents for self -managed medication abortion through the online service Aid Access between March 2018 and March 2020 identified 57,506 requests from individuals in all 50 states. Barriers to accessing abortion during the COVID-19 pandemic have led to further increases in demand. Aid Access reported an increase of 27% in the rate of requests for self - managed medication abortion from March 20 to April 11, 2020, relative to before the pandemic. 3) SUPPORT. This bill is co -sponsored by ACLU California Action, Black Women for Wellness, California Latinas for Reproductive Justice, If/When/How: Lawyering for Reproductive Justice, NARAL Pro -Choice California, and Planned Parenthood Affiliates of California. The co-sponsors state that it is not a crime to have an abortion, miscarriage, or experience pregnancy loss. Nevertheless, despite clear law forbidding these charges and protecting the right to make decisions about pregnancy, Californians have been charged with homicide offenses for pregnancy losses. Worse, there is frequently no recourse for people who have been harmed by the legal system as a result of their pregnancy loss or self -managed abortion. A critical part of realizing reproductive justice for all Californians is to ensure that this never happens again. The co-sponsors note that the threat of criminal prosecution has a harmful effect on individual and public health, because people who fear prosecution due to their health issues are deterred from seeking care. This is a critical issue for Black, Indigenous, and other people of color, who are more likely to experience adverse pregnancy outcomes as a result of systemic racial inequities and also more likely to be under scrutiny of punitive state systems. It is also a concern for immigrants, queer and trans people, young people, and others who may self - manage abortions because care in formal medical systems is inaccessible. The co-sponsors conclude that states hostile to abortion rights are attempting to impose criminal or civil penalties on people who assist others in obtaining an abortion. Californians must be able to support friends, community members, and loved ones with their abortion without being investigated, arrested, or prosecuted. https://ctweb.capitoltrack.com/Bills/2lBills/asm/ab_2201-2250/ab_2223_cV657_asm_comm.html 5/8
4/19/22, 8:58 AM Assembly Bill Policy Committee Analysis 4) OPPOSITION. The California Family Council (CFC) is opposed to this bill and states that this bill would legalize infanticide by the mother or any accomplice. Killing or letting a newborn die will no longer have any criminal penalties associated with it if this bill passes. It is the government's job to protect vulnerable human beings from harm. Newborns are valuable human beings who should be protected and that doesn't change simply because their mother doesn't want them. California has a Safely Surrendered Baby Law that allows a mother to drop off her newborn baby at a hospital, police department, or fire station with no questions asked. CFC concludes that mothers should not be killing their newborn children when all they have to do is take them safely to a drop-off location.
Traditional Values for Next Generations (TVNG) is opposed to this bill and states that California may follow the steps of former Philadelphia abortionist Kermit Gosnell, who murdered three infants born alive after botched abortions, and could not be prosecuted. This bill expressly authorizes any person to facilitate late - term abortions and infanticide without legal repercussions. That means, there is a great possibility to remove much needed civil and criminal penalties for killing babies born alive under almost any circumstances. This is the most extreme, anti -life bill in California's history. TVNG concludes that this bill legalizes infanticide and we absolutely cannot agree with the use of euphemisms like "personal reproductive decisions" and `reproductive justice' to justify and encourage the killing of babies in and outside the womb. 5) RELATED LEGISLATION.
a) AB 1918 (Petrie -Norris) establishes the California Reproductive Health Service Corps within HCAI for the purposes of recruiting, training, and retaining a diverse workforce of reproductive health care professionals who will be part of reproductive health care teams to work in underserved areas. AB 1918 is pending a hearing in the Assembly Health Committee.
b) AB 2091 (Mia Bonta) prohibits compelling a person to identify or provide information that would identify an individual who has sought or obtained an abortion in a state, county, city, or other local criminal, administrative, legislative, or other proceeding. AB 2091 is pending hearing in the Assembly Judiciary Committee.
c) AB 2134 (Akilah Weber) establishes the California Reproductive Health Equity Program within HCAI to ensure abortion and contraception services are affordable for and accessible to all patients and to provide financial support for safety net providers of these services. AB 2134 is pending hearing in the Assembly Health Committee.
d) AB 2205 (Carrillo) requires, beginning July 1, 2023, a health care service plan or health insurer offering qualified health plans, as defined, to annually report the total amount of funds in the segregated account maintained pursuant to the federal Patient Protection and Affordable Care Act. Requires the annual report to include the ending balance of the account and the total dollar amount of claims paid during a reporting year. AB 2205 is pending hearing in the Assembly Health Committee. e) AB 2320 (C. Garcia), requires, until January 1, 2028, the Department of Health Care Services, to establish and administer a pilot program to direct funds to community health clinics that provide reproductive health care services in five counties that agree to participate. AB 2320 is pending a hearing in the Assembly Health Committee.
f) SB 245 (Lena Gonzalez), Chapter 11, Statutes of 2022, eliminates cost sharing in abortion services. g) SB 1142 (Caballero and Skinner) requires the California Health and Human Services Agency (CHHSA), or an entity designated by the agency, to establish an internet website where the public can find information on abortion services in California. Requires CHHSA to also develop, implement, and update as necessary, a statewide educational and outreach campaign to inform the public on how to access abortion services in the state. SB 1142 is pending a hearing in the Senate Health Committee. https://ctweb.capitoltrack.com/Bills/2lBills/asm/ab 2201-2250/ab 2223 cfa 1657_asm_comm.html 618
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Assembly Bill Policy Committee Analysis
6) PREVIOUS LEGISLATION. SB 1301 (Sheila Kuehl), Chapter 385, Statutes of 2002, enacts the Reproductive Privacy Act, which provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions, including the fundamental right to choose or refuse birth control, and the fundamental right to choose to bear a child or obtain an abortion. 7) DOUBLE REFERRAL. This bill has been double referred. It passed the Assembly Committee on Judiciary with a vote of 7-2 on April 5, 2022.
REGISTERED SUPPORT / OPPOSITION:
Support
ACLU California Action (co-sponsor)
Black Women for Wellness (co-sponsor)
California Latinas for Reproductive Justice (co-sponsor) If/When/How: Lawyering for Reproductive Justice (co-sponsor) NARAL Pro -Choice California (co-sponsor)
Planned Parenthood Affiliates of California (co-sponsor) Access Reproductive Justice
American College of Obstetricians and Gynecologists District IX Asian Americans Advancing Justice - California
California Coalition for Women Prisoners
California for Safety and Justice
California Medical Association
California Nurse Midwives Association
Californians United for a Responsible Budget
Citizens for Choice
Courage California
Disability Rights California
Ella Baker Center for Human Rights
Initiate Justice
National Center for Youth Law
National Health Law Program
Survived & Punished
Tides Advocacy
Urge: Unite for Reproductive & Gender Equity
Women's Foundation California
Opposition
Americans United for Life
California Capitol Connection
California Family Council
Californians for Life
Calvary Chapel of Placerville
Catholic Families 4 Freedom CA
Children's Health Defense California Chapter
Concerned Women for America
Eagle Forum of California
Faith Baptist Church of Wheatland
Frederick Douglass Foundation of California
Liberty Baptist Church of Norwalk, CA
Life Legal Defense Foundation
National Center for Law & Policy
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Republican Club of Laguna Woods
Right to Life League of Southern California
Right to Life of Central California
Right to Life of Kern County
Salt and Light Council
Siskiyou Conservative Republicans
The Salt & Light Council
Traditional Values for Next Generations
Numerous individuals
Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097 https://ctweb.capitoltrack.com/Bills/21 Bills/asm/ab_2201-2250/ab_2223_cfai3R6657_asm_comm.html 8/8