Fact check: Are “born alive” babies really unprotected in some US states? | News about the US election 2024

During the September 10 presidential debate in Philadelphia, former President Donald Trump falsely claimed that his Democratic opponent Kamala Harris's vice presidential candidate, Minnesota Governor Tim Walz, supports “postpartum execution.”

ABC News anchor Linsey Davis dismissed Trump's statement, saying: “There is no state in this country where it is legal to kill a baby after birth.”

The day after the debate, some social media posts said the moderator had made a mistake.

In a Sept. 11 Facebook post, Tony Perkins, chairman of the Family Research Council, an organization that opposes abortion rights, wrote: “In 12 states, children born alive after a botched abortion have no legal protections, and in three more states, children born alive after an abortion had legal rights that governors – like Tim Walz – have repealed.”

The post linked to the Family Research Council's website and included a map of the United States color-coded according to what the activist organization describes as “states' protections from live births.”

Perkins said in the post that this lack of protection means babies are “left for dead or cruelly killed after being born alive following a botched abortion.” The Family Research Council also posted a similar claim on its Instagram account.

These posts were flagged as part of Meta's efforts to combat fake news and misinformation in its news feed.

Infanticide, the killing of a child within one year of its birth, is a crime in all states, and every person born there enjoys legal protection under federal and state laws.

The Born-Alive Infants Protection Act of 2002, passed by both houses of Congress and signed by then-President George W. Bush, established that federal legal protections that apply to “persons” also apply to children at any stage of development, including after an abortion.

But every state's homicide laws already prohibit the killing of a baby, whether it's just born or just a few months old, says Priscilla Smith, director of the reproductive justice studies program at Yale University Law School.

The vast majority of abortions in the United States — more than 90 percent — occur in the first trimester, or before 13 weeks. About 1 percent occur after 21 weeks, and far less than 1 percent occur in the third trimester.

According to experts, it is rare for babies to be born after an attempted abortion.

The Family Research Council's website argues that the 2002 federal law “lacks legal enforcement,” so the organization advocates for additional requirements for health care providers — like those contained in the Born-Alive Abortion Survivors Protection Act, a bill that has been introduced in Congress on and off for years. Democrats have overwhelmingly opposed the bills, believing that current law makes them redundant.

The bill would require health care providers to provide “infants born alive after an abortion or attempted abortion” the same care as “any other child born alive at the same gestational age” and “to ensure that the child is immediately admitted to a hospital.” Providers who fail to do so would face criminal prosecution, as would anyone who “intentionally kills or attempts to kill a child born alive.”

The Family Research Council says its “Live Birth Protections by State” map shows which states have adopted some of the provisions of the proposed federal law. The organization referred to states without those provisions as “without protections.” And states that have repealed any of the provisions, like Minnesota in 2023 under Walz, were referred to as having “removed protections.”

Mary Szoch, director of the Family Research Council's Center for Human Dignity, told PolitiFact in a statement, “If a federal law would be enough to protect these babies, why should 35 states, including several that support abortion, have laws protecting babies born alive after abortion?”

Legal experts, however, dispute the view that federal law, and therefore some states, lack legal protection for babies born alive.

The Born-Alive Infants Protection Act changed the federal definition of a person to “extend any federal prohibition on any form of violence, including murder, to children born alive after an abortion,” says Mary Ziegler, a law professor and abortion historian at the University of California, Davis.

David Cohen, a law professor at Drexel University who specializes in the intersection of constitutional law and gender, said that once a person is born, “they enjoy the protection of every criminal and civil law, including the law against murder, the law against assault, the law against medical malpractice, etc.”

What the law passed under Walz achieved in Minnesota

In May 2023, the Minnesota Legislature passed an update to a state law on “born alive infants,” which Walz signed. Previously, the state law stated: “All reasonable measures consistent with good medical practice, including the compilation of appropriate medical records, must be taken by the responsible medical personnel to preserve the life and health of the born alive infant.”

The law has been updated to state that medical personnel “must care for the newborn who is born alive.”

However, the updated version of the law retained the provision that states: “An infant born alive is fully recognized as a human person and enjoys immediate protection under the law.”

Laura Hermer, a professor at the Mitchell Hamline School of Law in Minnesota, told PolitiFact that Perkins' claim misinterprets Minnesota state law passed during Walz's tenure as governor.

According to Hermer, the update deleted parts of the previous version of the law “that gave the impression that several children were being born alive after attempted abortions.”

“Abortions after viability are very rare in Minnesota, as elsewhere, although they do occur occasionally. Abortions that result in live births, while hypothetically possible, are vanishingly rare,” Hermer said, citing data from the Minnesota Department of Health.

Minnesota Democratic Senator Erin Maye Quade said that in some cases where fatal fetal abnormalities are present that make fetal death likely before or shortly after birth, parents choose to terminate the pregnancy through induction of labor.

“In these circumstances, the children, the babies who are born, are meant to stay alive because their parents want to hold them in their arms before they die. This is not a botched abortion. The birth of a child was the method of abortion in these cases,” said Maye Quade.

The previous version of Minnesota's law “required these unnecessary and harmful medical interventions on infants who would die,” Maye Quade said. “And because of that, parents often couldn't decide whether they wanted to bring their children into the world alive.”

This change in the law means that infants who are “born alive” will receive appropriate medical care depending on the circumstances of the pregnancy, said Maye Quade.

In January 2023, Walz also signed a law codifying protections for access to abortion.

Our verdict

Perkins said, “In 12 states, children born alive after a botched abortion have no legal protections, and in three other states, children born alive after an abortion had legal rights that governors – like Tim Walz – have repealed.”

Legal experts said that was wrong. Every human being born is protected by federal and state laws. In every state, it is illegal to kill a baby after birth.

In Minnesota, Walz passed a state law that changed the language regarding infants born alive. This change did not remove the protections that every human being born enjoys under Minnesota and federal law.

We rate this claim: False.