No legal protections for ‘born alive’ babies in some states? Experts say that’s wrong

During the Sept. 10 presidential debate in Philadelphia, former President Donald Trump falsely claimed his Democratic opponent Kamala Harris’ running mate, Minnesota Gov. Tim Walz, supports "execution after birth."

ABC News moderator Linsey Davis rebutted Trump’s statement, saying, "There is no state in this country where it is legal to kill a baby after it’s born."

The day after the debate, some social media posts said the moderator was wrong.

In a Sept. 11 Facebook post, Tony Perkins, president of the anti-abortion Family Research Council, wrote, "In 12 states, children born alive after a failed abortion have no legal protection, and in three more states children born alive after an abortion had legal rights that governors — like Tim Walz — repealed."

The post linked to the Family Research Council’s website and included a U.S. map color-coded according to what the activist organization describes as the states’ "born alive protections."

(Screengrab from Facebook)

Perkins said in the post that this lack of protections means babies are "being left to die or gruesomely killed after being born alive following a failed 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 false news and misinformation on its News Feed. (Read more about our partnership with Meta, which owns Facebook, Instagram and Threads.)

Infanticide, the crime of killing a child within a year of its birth, is illegal in all states, and every person who is born has legal protections under federal and state laws.

The Born-Alive Infants Protection Act of 2002, which both chambers of Congress passed and then-President George W. Bush signed, established that federal legal protections that applied to "persons" also covered children born at any stage of development, including after an abortion.

But homicide laws in every state already make it illegal to kill a baby, regardless of whether the baby was just born or is a few months old, said Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale University’s Law School.

The vast majority of abortions in the U.S., more than 90%, occur in the first trimester, or before 13 weeks. About 1% take place after 21 weeks, and far less than 1% occur in the third trimester.

Experts said cases in which babies are born following an abortion attempt are rare.

The Family Research Council’s website argues the 2002 federal law does not "include any legal enforcement." So, the organization advocates for additional requirements for health care providers, such as the ones included in the Born-Alive Abortion Survivors Protection Act, legislation that has been introduced and reintroduced in Congress for years. Democrats have largely opposed the bills, saying current law renders them redundant.

The legislation would require health care practitioners to give the same care to "infants born alive after an abortion or attempted abortion" as "any other child born alive at the same gestational age" and "ensure 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 map of "born alive protections by state" shows which states have adopted some of the proposed federal legislation’s provisions. The organization labeled states without these provisions as having "no protection." And states, such as Minnesota in 2023 under Walz, that have repealed any of the provisions were labeled as "removed protection."

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stated on September 11, 2024 in an Instagram post

"Debate moderators made the false claim to Donald Trump that there is nowhere in the United States where abortion is legal up until birth."

Mary Szoch, director of the Family Research Council’s Center for Human Dignity, said in a statement to PolitiFact, "If federal law was sufficient to protect these babies, why would 35 states, including several pro-abortion ones, have laws protecting babies born alive following abortions?"

But legal experts dispute the idea that the federal law, and by extension some states, lack legal protections for babies "born alive." 

The Born-Alive Infants Protection Act amended the federal definition of a person so that "any federal prohibition on any form of violence, including homicide, would be extended to an infant born alive after abortion," said Mary Ziegler, a University of California, Davis law professor and abortion historian.

David Cohen, a Drexel University law professor who specializes in the intersection of constitutional law and gender, said once born, "you have all the protections of every criminal law, every civil law, including laws against murder, including laws against assault, including medical malpractice laws, etc."

In May 2023, the Minnesota Legislature passed and Walz signed an update to a state law for "infants who are born alive." Previously, state law said, "All reasonable measures consistent with good medical practice, including the compilation of appropriate medical records, shall be taken by the responsible medical personnel to preserve the life and health of the born alive infant."

The law was updated to instead say medical personnel must "care for the infant who is born alive."

The law’s updated version, however, kept the provision that said, "An infant who is born alive shall be fully recognized as a human person, and accorded immediate protection under the law."

Laura Hermer, a professor at Mitchell Hamline School of Law in Minnesota, told PolitiFact that Perkins’ claim misconstrues the Minnesota law passed under Walz’s governorship.

What the update did, Hermer said, was remove parts of the previous version of the law "that made it sound as if multiple infants were being born alive following attempted abortions."

"Post-viability abortions are very uncommon in Minnesota, as elsewhere, though they do occasionally occur. Abortions resulting in live births, while hypothetically possible, are vanishingly rare," Hermer said, citing data from the Minnesota Department of Health.

Democratic Minnesota state Sen. Erin Maye Quade said in some cases when there are lethal fetal anomalies that make it likely the fetus will die before or soon after birth, parents decide to terminate the pregnancy by inducing childbirth.

"In those circumstances, the children, the babies that are born are meant to be alive because their parents want to hold them before they die. That is not a failed abortion. Childbirth was the method of abortion in that circumstance," Maye Quade said.

The previous version of Minnesota’s law was "requiring these unnecessary and harmful medical interventions for infants that were going to die," Maye Quade said. "And because of that, parents weren't often able to decide to deliver their children alive."

This update to the law means infants who are "born alive" receive appropriate medical care dependent on the pregnancy’s circumstances, Maye Quade said.

In January 2023, Walz also signed into law a measure codifying abortion access protections.

Perkins said, "In 12 states, children born alive after a failed abortion have no legal protection, and in three more states children born alive after an abortion had legal rights that governors — like Tim Walz — repealed."

Legal experts said this is wrong. Every person who is born has protections under federal and state laws. It’s illegal in every state to kill a baby after it’s born.

In Minnesota, Walz approved a state law that updated language related to infants "born alive." This change did not remove the protections every person who is born has under Minnesota and federal laws.

We rate this claim False.