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Killing an infant after birth is infanticide and is illegal in all 50 states.
Situations that result in a fetal death in the third trimester are exceedingly rare, reproductive health experts said, and usually involve emergencies such as fatal anomalies or life-threatening complications affecting the mother.
In life-threatening cases, an expecting mother may be induced into labor. If the newborn has a very short life-expectancy, a family may opt for palliative care, which aims to provide comfort to an infant near death. These cases typically involve medical conditions that result in a baby surviving minutes or days after delivery, experts said.
Republican presidential candidate Florida Gov. Ron DeSantis said in a recent interview that some states allow abortion after an infant has already been born.
CNN host Jake Tapper asked DeSantis whether he would support a federal abortion ban as president. DeSantis, who signed Florida’s contested six-week abortion ban in April, said he would be a "pro-life president," but gave no direct answer.
"In some liberal states," he said, "you actually have post-birth abortions and I think that’s wrong."
Some on social media thought DeSantis misspoke, but the post-birth abortion claim is something that Republicans and anti-abortion activists have repeated for years, before the U.S. Supreme Court overturned Roe v. Wade in June 2022.
The claim was wrong then, and it is wrong now: Willfully terminating a newborn’s life is not legal in any state.
Gretchen Ely, a professor at the University of Tennessee, Knoxville's, college of social work who studies reproductive health, said the claim "couldn’t be more wrong."
She said these types of claims misleadingly try to equate an intervention that might take place in the third trimester when there’s a fetal anomaly with an elective abortion where someone can just decide after birth that they don’t want a baby.
When asked for evidence to support his claim, a DeSantis campaign aide pointed us to two resources, neither of which established that states sanction killing newborns.
One was a press release outlining Republican support for a bill advocates say would require infants get medical care after attempted abortions. Opponents say the new bill is redundant under the "Born-Alive Infants Protection Act of 2002."
The other was a webpage from the Charlotte Lozier Institute, an anti-abortion organization, that explored cases in which it said abortion attempts failed and babies were born. But it contained a number of irrelevant or erroneous citations. For example, one 2018 study that it cited referred to second-trimester abortions in Europe, not the U.S., and found that half resulted in live births, with most babies dying within minutes. The study’s authors said the abortions were sought because of anomalies or genetic abnormalities. The gestational age represents a range when many fetuses cannot yet survive independently.
A recent California law aims to protect parents from prosecution when they lose a baby after delivery because of a pregnancy-related complication. But no U.S. state permits infants to be killed after birth.
"No state allows post-birth abortions," said Lois Shepard, a University of Virginia law and biomedical ethics professor who has authored several books about end of life care. "First, an abortion refers to terminating a pregnancy, and a pregnancy does not continue after birth. But second, that would be killing a born human being, who is a person entitled to the equal protection of the laws, including prohibitions against murder. No state permits infanticide."
Ely said that some states will assist with later termination because of fetal anomalies, "but there is not a state, or probably any place in the world, that would allow someone to murder an infant after they were born."
The American College of Obstetricians and Gynecologists also rebutted the statement and said that "there is no such thing." Kelly Baden, vice president of policy at the Guttmacher Institute, an abortion-rights research group, called the claim "outrageous and false" and said the rhetoric has "no basis in evidence, facts or medical standards of care and serves only to place abortion providers and patients at risk."
Legal experts have also pointed to specific federal laws that apply to newborns:
The Child Abuse Prevention and Treatment Act, passed in 1974 and since revised. The relevant portion makes certain types of federal funding for states conditional on their adopting policies to prevent withholding of treatment from newborns, including those with disabilities.
The Born-Alive Infants Protection Act of 2002 established that federal legal protections that applied to "persons" also covered children born at any stage of development, including after an abortion.
Conservative claims about "post-birth" abortions or abortions "up to the moment of birth" appear to misinterpret what happens when a mother grappling with a life-threatening diagnosis is induced into labor and gives birth to a baby with a short life expectancy.
Families and doctors may choose to provide palliative care, a plan in obstetric and newborn care that aims to provide comfort to a baby when there is little or no prospect of long-term survival.
Some families choose this route when they learn during pregnancy that the baby has a genetic or structural condition that could mean the baby survives only minutes or days after delivery. These problems can sometimes surface by the end of the first trimester, but may not until halfway through the pregnancy, or later.
"In these cases, patients may decide to end their pregnancies through abortion, or to choose to give birth with options for palliative care. If patients choose the latter, the American Academy of Pediatrics has stated that (patients) should also be allowed to choose palliative care or attempted resuscitation in light of the high likelihood of death and significant degree of neurodevelopmental impairment that may result from birth," The American College of Obstetricians and Gynecologists says on its website.
The vast majority of abortions in the U.S., about 91%, occur in the first trimester. Only about 1% take place after 21 weeks, and far less than 1% occur in the third trimester.
Dr. Nisha Verma, an OB-GYN who provides full-spectrum reproductive health care, including abortions, reiterated the rarity of abortions late in a pregnancy. But she said she’s had patients who received terrible fetal diagnoses and needed abortions in the third trimester. She gave an example of a baby who didn’t develop a brain and wouldn’t survive after birth.
"I have also had patients diagnosed with life-threatening medical conditions during the third trimester that require delivery," Verma said. "In these situations, I counsel my patients about the options, and in many situations, based on my patient's wishes, proceed with an induction of labor or C-section that aims to protect both the patient and the baby."
Overall, reproductive health experts said the language many politicians are using around abortion spreads false information that risks the lives and wellbeing of physicians and patients.
"It's purposely misrepresenting medical terms that are understood differently by the lay public," Ely, from the University of Tennessee, said. "Like ‘late term abortion,’ which is not a real medical term that’s been crafted carefully to try to make people think that you could have an abortion in some liberal state like New York all the way up to, and after, a baby’s been born. But that is completely counter to the laws of the land and our moral compass as humans."
DeSantis claimed that "some liberal states" have post-birth abortions.
There is no evidence to support this.
Killing an infant after birth is infanticide and is illegal in all 50 states. Situations resulting in a fetal death in the third trimester are exceedingly rare, and involve emergencies such as fetal anomalies or life-threatening medical emergencies affecting the mother.
Sometimes, labor is induced, followed by palliative care, for babies with very short life-expectancies. Some families choose this option when faced with life-threatening diagnoses that often limit their babies’ post-birth survival to just minutes or days after delivery, experts said.
We rate DeSantis’ claim False.
YouTube, DeSantis responds to Republicans losing faith in his electability, July 18, 2023
The American College of Obstetricians and Gynecologists, Facts Are Important: Understanding and Navigating Viability, Accessed July 20, 2023
The American College of Obstetricians and Gynecologists, Perinatal Palliative Care, September 2019
Guttmacher Institute, State Bans on Abortion Throughout Pregnancy, Updated July 1, 2023
The U.S. Centers for Disease Control and Prevention, Abortion Surveillance — United States, 2019, Accessed July 20, 2023
PolitiFact, Fact-checking Donald Trump's tweet saying Democrats 'don’t mind executing' babies after birth, Feb. 28, 2019
PolitiFact, No, this California bill wouldn't allow mothers to kill their children after they're born, April 6, 2022
Phone interview, Gretchen Ely, a professor at the University of Tennessee, Knoxville’s, College of Social Work, July 19, 2023
Email interview, Lois Shepherd, professor of law and biomedical ethics at the University of Virginia and author of the books "Rationing Health Care at the End of Life" and "If That Ever Happens to Me: Making Life and Death Decisions After Terri Schiavo," July 19, 2023
Email interview, The American College of Obstetricians and Gynecologists press team, July 20, 2023
Email interview, Kelsey Rhodes, interim director of voice and communications at Physicians for Reproductive Health, July 19, 2023
Email interview, DeSantis campaign press team, July 19-20, 2023
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