AB 923 creates a statutory framework that directs courts to presume against detention and incarceration of anyone who is pregnant or within one year postpartum, provided the defendant notifies the court and the district attorney of that status. The presumption is rebuttable; if a court nevertheless orders detention or incarceration, it must put specific findings on the record that substantial public safety risks or other required considerations outweigh the risks of incarceration.
Beyond the court presumption, the bill requires county jails to provide pregnancy tests on request (within 24 hours), treat test results as confidential medical information, and keep detailed records about incarcerated pregnant people and pregnancy outcomes. It also establishes a mechanism allowing detained pregnant or postpartum defendants to seek a stay of execution of their sentence through the end of pregnancy or the postpartum period, subject to hearings and evidentiary rules.
At a Glance
What It Does
The bill creates a rebuttable presumption against detention and incarceration for defendants who identify as pregnant or within one year postpartum, requires jails to provide pregnancy tests on request and retain specified pregnancy-related records, and authorizes courts to grant stays of execution through the pregnancy or postpartum period.
Who It Affects
Directly affects judges deciding bail, diversion, deferred entry of judgment, sentencing, and stays; county jails (testing, confidentiality, and recordkeeping duties); prosecutors who must respond to notices and contest status; and defense counsel who must raise and prove pregnancy-related claims.
Why It Matters
This changes the decisionmaking baseline in criminal proceedings by inserting maternal and newborn health considerations into custody decisions and sentencing timing, creates new operational obligations and data flows for jails, and formalizes a procedure for delaying incarceration to protect perinatal outcomes.
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What This Bill Actually Does
AB 923 adds a new chapter to the Penal Code that centers perinatal health in criminal-court discretion. At every point where a judge exercises discretion—bail and release decisions, diversion or deferred entry agreements, sentencing, and granting a stay of execution—the bill requires the court to apply a rebuttable presumption against detention for a defendant who provides notice that they are pregnant or in the postpartum period.
The presumption shifts the baseline: detention becomes the exception that must be justified on the record.
The bill builds procedural detail around that baseline shift. A defendant who raises pregnancy or postpartum status must provide evidence (a positive pregnancy test, medical record, or newborn birth certificate) and, if the prosecution disputes the claim, the court must hold a determination hearing promptly—no later than 14 days unless delayed at the defendant’s request.
The defendant bears the burden to prove pregnancy or postpartum status by a preponderance of the evidence. When a court decides to detain despite the presumption, it must explain, with specific findings, why public safety risks or other statutory factors outweigh the harms of incarceration.AB 923 also addresses detection and operational response inside county jails.
People who may be pregnant and are arrested or in custody can request a pregnancy test at admission or thereafter; the jail must provide the test and allow the person to take it within 24 hours of request. Test requests and results are treated as confidential medical information, disclosure is limited to what’s necessary for care, and jails must notify a defendant’s attorney within 48 hours if the defendant has signed a medical release.
The bill requires jails to maintain a defined set of data points—such as counts of incarcerated pregnant people, births (live or stillbirth), miscarriages, complications, gestational age, birth weights, and demographic details—creating a new data collection and reporting burden.Finally, the statute creates a stay-of-execution process: a pregnant or postpartum defendant detained in a county jail may file a written request for a stay of execution through the end of pregnancy or the postpartum period. The court must hold a hearing within 14 days (or later if requested), apply the rebuttable presumption, and may order the stay for any period through the pregnancy or one-year postpartum period.
The stay is unavailable for defendants ineligible for bail and can be terminated if the defendant is charged with a new violation or is shown, at a hearing, to present a substantial public-safety risk while on stay. The court must also set a date, time, and place for the defendant to begin serving the sentence after the stay ends and keep bail conditions in place during the stay if bail was set.
The Five Things You Need to Know
A county jail must provide a pregnancy test upon request and allow the person to take it within 24 hours after the request.
If a court orders detention or incarceration of a notified pregnant or postpartum defendant, the court must make specific on-the-record findings that the danger to public safety or other required factors substantially outweigh the risks of incarceration.
Jails must keep detailed records including: total number of incarcerated pregnant people, births while incarcerated (live birth or stillbirth), gestational age and infant birth weight, complications and miscarriages, instances of declined deferred/alternative sentencing, age, ethnicity, and the type of crimes.
A pregnant or postpartum defendant detained in a county jail can request a stay of execution of sentence; the court must hold a hearing within 14 days (unless delayed by the defendant) and the defendant must prove pregnancy/postpartum status by a preponderance of the evidence.
The statute limits disclosure of pregnancy-test requests and results to what is necessary for medical care and requires notice to defense counsel within 48 hours to the extent the defendant provided a medical release.
Section-by-Section Breakdown
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Why perinatal considerations belong in criminal decisions
The bill opens with findings that frame pregnancy and the postpartum period as time-sensitive medical conditions with downstream effects on families and communities. Those findings are not operative law but set legislative intent that courts should treat alternatives to incarceration as part of public health and safety decisionmaking. For practitioners, these findings will inform statutory interpretation and can be cited when advocating for noncustodial outcomes.
Definitions (pregnant, postpartum, newborn, stay of execution)
This section borrows federal public-health definitions: postpartum period is defined as one year after the end of pregnancy regardless of outcome, and ‘newborn’ covers infants under one year. Defining the postpartum period as a full year broadens eligibility for protections and is consequential for the timing of stays, hearings, and the evidentiary window for claiming protected status.
Rebuttable presumption against detention and limits on using pregnancy to increase restrictions
The statute requires courts to apply a rebuttable presumption against detention at every discretionary decision point (bail, diversion, deferred entry, sentencing, stays). It also bars courts from using pregnancy or postpartum status as a basis to impose greater restrictions than on similarly situated non-pregnant defendants, including when substance use disorders are present. If a court nevertheless detains, it must state on the record why public-safety risks or other required considerations outweigh the harms of incarceration—raising the evidentiary bar for custodial orders.
Pregnancy testing, confidentiality, counsel notice, and jail recordkeeping
County jails must provide pregnancy tests on request and permit testing within 24 hours; test requests and results are defined as confidential medical information with limited disclosure. The jail must notify a defendant’s attorney within 48 hours when the defendant has signed a medical release. The statute lists specific data jails must track (counts of incarcerated pregnant people, births and outcomes, complications, miscarriages, demographics, and crime types), creating a new operational and documentation duty for local corrections systems.
Raising pregnancy/postpartum status in proceedings and evidentiary procedures
A defendant may raise pregnancy or postpartum status at any time; presenting a positive test, medical record, or birth certificate constitutes prima facie evidence. If the prosecution contests the claim, the court must hold a hearing promptly—no later than 14 days unless delayed by the defendant—and the defendant must prove status by a preponderance. The court must treat medical evidence as confidential and limits the waiver of privilege to information relevant to establishing pregnancy or its end.
Stay of execution: request, hearing timeline, limits, and terms
A detained pregnant or postpartum defendant in a county jail can file a written request for a stay of execution through the pregnancy or postpartum period. The court must hold a hearing within 14 days (or later if the defendant requests), apply the rebuttable presumption, and may grant a stay for any period through the end of pregnancy or the postpartum year. The stay is unavailable to defendants ineligible for bail; prosecutors may move to end a stay if they establish a prima facie violation that presents a substantial public-safety risk.
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Explore Criminal Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Pregnant and postpartum defendants — The presumption against detention and the stay-of-execution mechanism increase the likelihood of noncustodial outcomes and delayed incarceration to protect prenatal and postpartum health.
- Newborns and infants under one year — The policy aims to preserve bonding time and breastfeeding/chestfeeding opportunities by enabling parents to avoid or delay incarceration during perinatal windows.
- Defense attorneys and public defenders — The statute provides a concrete procedural vehicle (notice, hearings, evidentiary rules) to seek alternatives to incarceration and to argue for stays tied to medical evidence.
Who Bears the Cost
- County jails and local correctional health systems — Jails must supply pregnancy testing within 24 hours on request, protect confidential medical data, notify counsel where applicable, and maintain the detailed records the bill requires, creating staff, training, and recordkeeping expenses.
- Courts — Judges and court administrators must schedule and conduct potentially numerous 14-day hearings, produce specific on-the-record findings when overruling the presumption, and manage additional confidentiality protections.
- District attorneys/prosecutors — Prosecutors must respond to more notices, litigate contested pregnancy determinations and stay hearings, and may need to marshal evidence to rebut the presumption in each contested case.
Key Issues
The Core Tension
The central dilemma is balancing maternal and infant health—time-sensitive, medically driven harms from incarceration and separation—against public safety and the criminal process’s need for consistent pretrial and sentencing rules; protecting perinatal health requires procedural exceptions and local operational capacity, but those accommodations may strain court calendars, jail resources, and prosecutorial efforts without clear funding or uniform implementation.
The bill's protective baseline—an evidentiary presumption against detention—relies on procedural safeguards that create significant operational workstreams. Counties will need protocols to deliver pregnancy tests within 24 hours, preserve confidentiality while allowing necessary medical disclosure, and compile the enumerated data fields.
Those duties will vary in cost by county size and existing correctional-health capacity, and the statute contemplates Commission on State Mandates review for reimbursement but does not itself fund implementation. Practitioners should expect variation in how quickly and uniformly jails implement testing and recordkeeping.
Several implementation tensions could shape outcomes. The requirement that defendants prove pregnancy or postpartum status by a preponderance and the 14-day hearing clock create a trade-off between swift resolution and evidentiary accuracy—courts may grant continuances at a defendant’s request, but resource constraints could delay determinations.
Confidentiality rules limit disclosure, yet defense counsel and prosecutors will need access in order to litigate contested claims, creating potential discovery battles about the scope of medical evidence. The one-year postpartum definition expands eligibility for protections but also lengthens the window during which courts must evaluate and potentially defer sentencing, raising questions about fairness across offense types and long-term management of stays.
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