2022 State Legislative Sessions: An Overview on Born-Alive Protections

As divisive as the issue of abortion can be in our country, one would think we could at least all agree that children who are born deserve equal protection under the law. Unfortunately, that is not the case, as evidenced by congressional Democrats’ consistent refusal to consider legislation establishing basic protections for infants born alive after surviving an attempted abortion. In this session of Congress, 213 members have signed a discharge petition that, with enough signatures, would force a floor vote on the Born-Alive Abortion Survivors Protection Act. But so far, no Democrats have signed the petition, leaving it just five votes shy of the necessary threshold (219).

Thankfully, state legislators are not waiting for Congress and continue to propose bills to protect born-alive abortion survivors, perhaps spurred on by reports that abortion survivors do exist and need protection under the law. These bills have seen a large upturn in the past few years. A total of six states introduced this type of legislation this year, and another six carried over their proposal from last year.

Born-Alive Abortion Survivors Protection Acts aim to ensure that infants born alive after surviving abortion attempts receive the same standard of medical care that would be rendered to any other child born at the same gestational age. These bills typically contain some combination of the following provisions:

Provide a healthcare requirement (i.e., require that practitioners exercise professional skill, care, and diligence to preserve the life of infants who survive abortion).
State that infants who survive abortions have the same right to medical care as any infant born alive.
Provide a hospitalization requirement (i.e., providing for hospitalization of the surviving infant and/or requiring the presence of a physician dedicated to the infant’s care if born alive).
Provide a penalty for noncompliance.
Require reporting the number of infants who survive an abortion.

The abortion industry likes to argue that abortion survivors do not exist, but the small amount of available data tells a different story:

As of 2021, at least 215 infants in six states are known to have been born alive following an abortion attempt (see these numbers under “Reporting Requirement” for the following states on FRC’s Born Alive Protections map: Arizona, Florida, Indiana, Michigan, Minnesota, Texas).
Only 10 states (representing about 30 percent of the country’s population) require any sort of reporting on these cases, and not all share the collected data publicly. States with the largest populations that perform the most abortions, such as California and New York, are notably absent from this list.
Due to a lack of reporting requirements, concrete statistics are difficult to find, but anecdotal evidence (such as the trial of infamous abortionists Kermit Gosnell and Ulrich Klopfer and the undercover video exposé of Planned Parenthood) suggests that the actual number of abortion survivors in the United States is likely much higher than what has been reported.

In 2002, Congress passed the Born-Alive Infants Protection Act, which states that all infants born alive, including those who survive an attempted abortion, are full persons under the law. However, it lacks a sufficient enforcement mechanism. The state Born-Alive Abortion Survivors Protection Act would build upon this definition by providing necessary protections for abortion survivors and enforcing penalties. Currently, if an infant is killed after birth and the incident is reported, the practitioner can be found criminally liable under applicable laws. However, if the practitioner fails to administer the same degree of professional skill, care, and diligence to an infant born alive after an attempted abortion that he would to any other infant, and that infant then dies as a result of the lack of care, the practitioner is not guilty of anything in 19 states. This lack of incentive to provide care is why more states need to establish protections for abortion survivors, particularly states with little to no restrictions on abortion.

Fortunately, state legislators in several states continue to recognize this fact, some introducing basic protections for abortion survivors and others introducing legislation to strengthen the protections they already have:

Ohio S.B. 157, which passed in December 2021 and went into effect in March 2022, strengthened Ohio’s existing born-alive protections, giving the state a rating of “best protections” on FRC’s Born-Alive Protections map. Ohio S.B. 157 adds a hospitalization requirement for the surviving infant, creates a cause of action for the mother if the abortionist violates the law, and establishes reporting requirements on the number of infants born alive after a failed abortion. This law makes Ohio the tenth state to require any sort of reporting on infants born alive.
Wisconsin S.B. 16 passed the state legislature late last year for the second legislative session in a row but was unfortunately vetoed by Democratic Gov. Tony Evers. This bill would have established a healthcare requirement, a hospitalization requirement, and a criminal penalty for noncompliance. It would have moved Wisconsin from a “weak protection” rating on FRC’s map to “strong protection.”

Eleven other states (including those with carryover bills from last year) considered this type of legislation this year but unfortunately failed to pass it. These states were Hawaii, Illinois, Minnesota, Missouri, New Jersey, New York, North Carolina, Oregon, Rhode Island, Virginia, and Wisconsin.

As only 18 states currently have strong protections for abortion survivors—and some states are moving to extremes to abet abortionists and abortion in light of the U.S. Supreme Court’s overturning of Roe v. Wade—abortion survivors need protection now more than ever. State legislators would do well to point to the reports of abortion survivors from other states, invite abortion survivors to testify, and advocate for the protection of born-alive infants. Caring for and protecting children who survive an abortion attempt is common sense, and it is time that more states’ laws recognize this fact.