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Roe v. Wade Out…Infanticide In?

Are states like California and Maryland really getting ready to make it legal to kill babies after they're born? Or is the infanticide outcry overblown?

Although the idea that infanticide could happen and is happening in America is new to many people, it’s not new to me. As Special Counsel to the Thomas More Society, I represented David Daleiden and the Center for Medical Progress in litigation against Planned Parenthood and the National Abortion Federation (NAF). Planned Parenthood and NAF sued David after he published a large-scale undercover investigation revealing that Planned Parenthood had been selling aborted baby body parts for profit and was regularly performing illegal partial-birth abortions to get more “intact specimens.” During the federal litigation, my partner Chuck LiMandri and I deposed the key abortionists involved and cross-examined them at trial. We’ve come face-to-face with the people who admit that babies are born alive in America and harvested for their tissue and organs.

The promotion of legalized infanticide is not unheard of in America. Ethicist Peter Singer, for instance, promotes the idea that for twenty-eight days after birth, it’s morally acceptable in certain circumstances to kill the child. In 2019, Virginia’s Democrat governor, Ralph Northam, made headlines when he suggested that doctors could have a “conversation” with parents of a newborn to decide whether that child should live.

Now the state of California is on the verge of passing Assembly Bill 2223, which will expressly make such conversations legal. Sponsors and supporters claim that the bill is intended only to ensure that women who’ve had miscarriages and abortions are not criminally prosecuted. But that is already the law. So what is really going on here? I’ve looked into the proposed legislation and have concluded that there is cause for alarm.

It’s important to consider the legislative context. Why was this bill proposed, and who proposed it? In September 2021, Governor Gavin Newsom helped form the California Future of Abortion Council, whose stated mission was to make California an abortion “sanctuary state” if Roe v. Wade were overturned (which now appears certain). The Council released a document listing “legislative, executive, and administrative actions for state policymakers to implement in order to meet the needs of people seeking abortions.” In line with these goals, on April 20, 2022, the California Assembly Health Committee passed AB-2223.

According to its proponents, including its sponsor, Buffy Wicks, AB-2223 is merely intended to ensure that women will not be “criminally prosecuted for having miscarriages or stillbirths or for self-managing an abortion.” Wicks advocates expanding abortion in California and making it available to women from out of state: “We may have 1.4 million women from out of state showing up on our doorstep seeking care. And if we do, how are we going to handle that? . . . I’m very excited that we’re even engaging in this conversation.”

But Wicks is just the public face of AB-2223, which is really the product of a host of large and powerful organizations pushing for universal abortion on demand: 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.

A close look at this bill reveals that it has nothing to do with protecting innocent mothers from being prosecuted for a miscarriage or a botched abortion. Rather, the bill aims to weaponize the Golden State with radically expanded abortion access in response to recent pro-life legislative victories in other states and the Supreme Court’s anticipated dismantling of Roe v. Wade in the pending Dobbs case.

AB-2223 is part of a national movement to de-criminalize perinatal or infant death. Maryland recently proposed a similar bill. Make no mistake about it: AB-2223 intentionally opens the door to infanticide. Its key provision, §123457, immunizes both the mother and anyone who “aids or assists a pregnant person in excising their rights under this article” if there is a “perinatal death due to a pregnancy-related cause.”

What is “perinatal death,” and what is a “pregnancy-related cause”? AB-2223 is conspicuously silent on these questions. But California law makes clear elsewhere that the perinatal period includes the time after birth.

AB-2223 is open to a host of interpretations that would allow “perinatal death” due to a “pregnancy-related cause.” For example, as noted by Dr. Vansen Huang, an OB-GYN with thirty-one years’ experience who publicly and powerfully opposed AB-2223, “the most obvious pregnancy related issue is that there’s a baby. . . the pregnancy related cause was that there’s a baby.” Dr. Huang further notes that the bill’s vague language could also provide immunity to a father who intentionally causes a perinatal death.

If the bill were not intended to legalize infanticide, the legislators could have made that clear, but they chose not to.

In addition to legalizing infanticide, there are at least six other dangerous aspects of the bill:

  1. The bill provides immunity to the mother and anyone who assists her in the death of her child at any stage of pregnancy, apparently for any reason.
  1. It legalizes self-induced abortions without restriction, even after twenty weeks gestation.
  1. Coroners will no longer have the duty to inquire into and determine the circumstances, manner, and cause of self-induced or criminal abortion.
  1. Fetal deaths in general will no longer be handled like other deaths without medical attendance—thus providing a legal shroud covering up infanticide.
  1. Anyone who denies or interferes with the “rights” created by AB-2223 may be sued for damages. Even threatening someone with criminal prosecution for causing the death of a child in the womb or “perinatally” can be construed as a hate crime.
  1. The bill replaces the term “woman” with “individual” or “pregnant person” to conform to the new woke gender-neutral ideology.

Are the concerns of the pro-life community unfounded? Absolutely not. Infanticide is currently happening in America. Most recently, in March 2022, the fully intact bodies of five babies were discovered at an abortion facility in Washington, D.C. Based on expert review of photographs of the bodies, it appears these babies were killed by infanticide or illegal late-term abortion. Nor can we forget Dr. Kermit Gosnell, the butcher who was convicted of first-degree murder of three born-alive infants at his abortion mill in Philadelphia.

As noted above, David Daleiden and CMP’s investigation documented that Planned Parenthood facilities across the U.S., including California, regularly engage in illegal partial-birth abortions to sell intact fetal tissue. For example, during CMP’s interview of Dr. DeShawn Taylor, a former Planned Parenthood medical director in Arizona, Taylor candidly discussed the performance of late-term abortions at twenty-four weeks to procure marketable fetal tissue. As Taylor explained: “We have the people who do our paperwork for the fetal death certificates, they email us calling them ‘babies.’ Baby this, baby that, baby so-and-so, and I’m like, that’s creepy!” She continued: “In Arizona, if the fetus comes out with any signs of life, we’re supposed to transport it to the hospital.” But in making that assessment, she admitted that “the key is, you need to pay attention to who’s in the room, right?”

CMP’s investigation also revealed that Planned Parenthood doctors try to get around the federal law banning partial-birth abortions by simply checking the right boxes on clinical documentation. As Planned Parenthood abortionist Dr. Suzie Prabhakaran explains, “you know, to comply with the Partial-Birth Abortion Ban, you basically have to say: ‘I intend to utilize dismemberment techniques for this procedure. So, every time you do a procedure, that’s how you document.” CMP investigators also found evidence that Planned Parenthood in Orange County would illegally tailor the abortion procedure in order to procure intact, marketable fetuses.

After the draft opinion reversing Roe was leaked to the public, President Biden told reporters, “Roe says what all basic, mainstream religions have historically concluded, that . . . the existence of a human life and being is a question. . . . Is it at the moment of conception? Is it six months? Is it six weeks? Is it ‘quickening’ like Aquinas argued?” In fact, it’s not an open question. Science is unmistakably clear that life begins at conception—and abortion in the womb is just as evil as the infanticide that AB-2223 seeks to legalize. But pro-abortion activists no longer justify their position by trying to argue that an unborn baby is not a human being; they think they have the right to kill that child anyway—which is why infanticide is their logical next step.

Once Roe is overruled, the battle will shift to the states—and many of them will try to pass bills like AB-2223. These efforts must be vigorously opposed. AB-2233 undeniably opens the door to violation of the U.S. and California Constitutions as well as the Federal Born-Alive Infants Protection Act, which extends legal protection to an infant born alive after a botched abortion. Nonetheless, it’s proceeding to the Appropriations Committee and then the Assembly floor for a vote.

Very soon, this bill could become law in California. It employs the veil of ambiguity to sanction the killing of born-alive infants. Its proponents claim we’re crazy for saying they need only amend the bill to state expressly that infanticide is still, and always will be, illegal. If that does not happen, the true legislative intent will be exposed, and AB-2223 will be challenged—and soundly defeated—in court.

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