What criminal statutes in California define homicide and infanticide and how do they interact with reproductive‑health laws?
Executive summary
California’s core homicide statute criminalizes unlawful killing with malice aforethought and, by longstanding construction, applies only to a “human being” post‑live birth; separate statutory and common‑law strands address fetal death (feticide) and historic infanticide doctrines, and recent reproductive‑health legislation like AB 2223 was designed to prevent pregnancy‑loss prosecutions, not to decriminalize homicide or lawful postnatal killing [1] [2] [3] [4].
1. What California criminal law names “homicide” and who counts as a victim
California’s murder provision in Penal Code 187 criminalizes the unlawful killing of a “human being” with malice aforethought, and official guidance and case law make clear that the statute contemplates a born‑alive person rather than a fetus in utero — the Attorney General’s office has issued statutory construction guidance tied to PC 187 language [1], and the California Supreme Court has traced the requirement of live birth for homicide liability through decisions such as Keeler [2].
2. Feticide and gaps: how the law treats killings of fetuses
Because traditional homicide law was tied to live birth, California and other states developed separate approaches to fetal death; academic and federal reviews have documented that California’s statutory scheme historically left gaps — nonconsensual fetal killing has at times fallen outside manslaughter and homicide formulations, prompting proposals and discussion of discrete feticide statutes to cover intentional or reckless killing of an unborn child [5] [6].
3. “Infanticide” as a doctrinal and statutory concept in California
“Infanticide” in historical common law related to killings of newborns and has been treated separately in some jurisdictions, but California’s modern criminal law does not create a statutory safe harbor for killing a newborn — courts have asked whether breathing, heartbeat, severing the cord, or other signs establish the “human being” for homicide purposes, and those questions informed case law rather than a legislative license to kill infants [2].
4. AB 2223 and the reproductive‑health legal interaction
AB 2223, the 2022–23 Reproductive Health bill, was framed to reaffirm reproductive privacy and to prevent investigations and prosecutions for pregnancy losses or self‑managed care; its text and sponsors emphasize shielding people from being criminalized for miscarriages, stillbirths, or pregnancy‑related perinatal deaths, not to relieve criminal liability for a homicide of a born infant [3] [7].
5. How fact‑checkers and legal experts read the bill versus online claims
Multiple fact‑checks and reporting found claims that AB 2223 “legalizes infanticide” to be false or misleading: Reuters and AP reported that law professors and advocates explained the bill does not decriminalize infanticide or murder of newborns, and FactCheck.org likewise noted amendments explicitly limiting investigations of stillbirths and reinforcing that evidence of foul play would still lead to investigation and prosecution [4] [8] [9] [10].
6. Practical interaction: investigations, perinatal language, and prosecutorial thresholds
The bill’s language as amended uses terms like “perinatal death due to a pregnancy‑related cause” to draw a line between pregnancy‑related losses and suspicious circumstances that would warrant criminal inquiry, meaning that while the statute seeks to bar routine investigations/prosecutions based solely on pregnancy outcomes, it does not prevent prosecutors from pursuing homicide or infanticide charges where independent evidence of criminal conduct exists [9] [3].
7. Remaining ambiguities, agendas, and the political context
Ambiguities in early drafts and the emotive charge of words like “infanticide” fed political attacks and disinformation campaigns; opponents framed the bill as permitting murder while sponsors and reproductive‑rights advocates framed it as corrective to pregnancy criminalization—both narratives carry implicit agendas: political framing seizes on worst‑case interpretations, while advocates emphasize curing prosecutorial overreach [11] [7] [8].
8. Bottom line for law and practice
California criminal statutes continue to make homicide illegal and require a born‑alive victim for classic murder charges under established construction, feticide issues are handled through separate statutory and prosecutorial mechanisms, and AB 2223 functions as a protective measure against prosecutions based solely on pregnancy outcomes rather than a repeal or exemption from homicide or infanticide liability where independent evidence supports criminal charges [1] [5] [3] [4].