Commentary Abortion

Disproven: The Myth of Infants ‘Born Alive’ After Abortions

Andrea Grimes & Sharona Coutts

Based on the evidence provided by states themselves, it is more than a little misleading for the House Judiciary Committee to suggest that newborn children are being murdered by abortion providers with regularity and abandon; it is myth-making and fear-mongering.

See other pieces from Rewire‘s State of Abortion series here.

Review the database of state documents collected and analyzed by Rewire here.

Are states harboring untold scores of Kermit Gosnell clones that are murdering aborted, but still living, fetuses in clinics across the country? In its letter to state attorneys general nationwide, the House Judiciary Committee seems to think so, taking at face value the anti-choice bogeyman of the soulless abortion doctor, slaughtering newborns in clinics across the country with nary a second thought.

The committee sent letters to all 50 state attorneys general, inquiring about criminal prosecutions related to abortion. The letters specifically cite the Born-Alive Infants Protection Act, a 2002 federal law “which provides that all federal protections for persons apply to every infant born alive.” It asked state attorneys general whether “prosecutors in your state treat the deliberate killing of newborns, including those newborns who were delivered alive in the process of abortions, as a criminal offense?” and requested that state officials provide a log of cases for the years 2008 to 2013 in which the act has been used in prosecutions.

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The answers provided by states show that Gosnell was, in fact, a rogue provider, and that there is no evidence of a pattern of infants being “born alive” after an abortion, much less of doctors killing infants in those circumstances. (Pennsylvania’s attorney general told Rewire that it did not have a copy of what it had sent to the House Judiciary Committee, or whether it had in fact replied to the committee’s inquiry.)

In responses from 38 attorneys general to date, not one AG office provided evidence that it has ever had cause to prosecute a physician for delivering and then killing a viable fetus, indicating that this notion—that there are multiple cases of fetuses surviving an abortion, only to be killed by a doctor—is a confection of the anti-choice camp, designed to replace fact-based arguments with the lowest form of fear-mongering.

Many of the responses from the attorneys general sound much like this one, from the Utah attorney general:

We did not find any cases in which a person was prosecuted for the deliberate killing of a newborn who was delivered alive in the process of an abortion. Similarly, prosecutors did not indicate that they had prosecuted any cases because a woman died or suffered serious complications as a result of an abortion. Finally, we did not find any cases in which a person was prosecuted for performing abortions after the statutory period.

Rewire has posted the responses from the attorneys general as part of our State of Abortion series. Our analysis of those responses shows that abortion is highly regulated and overwhelmingly safe. These findings hammer home the point that Pennsylvania’s Kermit Gosnell was an outlier. He has been convicted of first-degree murder and involuntary manslaughter, and has pleaded guilty to federal drug charges. He has been sentenced to life in prison without parole.

The uniformity of responses from state attorneys general on the question of so-called born-alive infants reflects the reality of the practice of legal abortion in the United States: 88 percent of legal abortions performed happen before 12 weeks’ gestation, according to the Guttmacher Institute, and well over 90 percent in the first 14 weeks. That reality is nothing like the nightmarish hyperbole put forward by the anti-choice movement.

When later abortions do occur, they can hardly be called “elective.” As Willie Parker, a Washington, D.C.-based doctor who provides later abortions, told the Washington Post last year, his patients come to him under “difficult circumstances,” with fetal genetic anomalies or in extreme poverty.

Vicki Saporta, president of the National Abortion Federation, a professional organization of voluntarily self-regulating abortion providers nationwide, told Rewire that evidence of “born-alive” infants killed by abortion providers is “not what anybody’s going to find.”

“This is not the standard of care or practice,” she said. “This is not what takes place at abortion clinics throughout the country.”

In fact, when individuals are prosecuted for the killing of newborns under the Born-Alive Infants Protection Act and state laws that mirror it, attorneys general report that they are parents, not physicians.

Michigan, for example, cited four cases of criminal prosecutions in the murder of a newborn child, all of which involved women who had recently given birth and asphyxiated, suffocated, or drowned a newborn..

In its response, the Idaho attorney general cites the tragic case of Jennie Linn McCormack, a woman who ordered medical abortion pills online in 2011 because she could not access or afford safe, legal abortion near her home, then used the pills to abort a non-viable fetus. Her case was ultimately dismissed.

But this question of “born-alive” infants after abortion has become a particular favorite among right-wing lawmakers looking to trap reproductive rights activists into advocating for murder.

During a state committee hearing in Florida earlier this year, anti-choice legislators ambushed a Planned Parenthood lobbyist with a “born alive” inquiry. Lawmakers asked her to consider a situation that is very real in terms of the crimes committed by Kermit Gosnell, but wildly hypothetical in the typical day-to-day practice of safe, legal abortion care as it is currently practiced in the United States. Flummoxed, the lobbyist struggled to answer questions that were largely based on a myth.

Responses both from states that heavily regulate abortion providers and abortion as a procedure—as South Dakota does—and states that place very few restrictions on either—as is the case in Vermont—are very much the same: They do not have cause to believe that their abortion providers are committing Gosnell-like atrocities, either rarely or with frequency.

Of course, as we receive more responses from state attorneys general, additional cases may come to light. For instance, a Florida doctor, James Scott Pendergraft IV, was subject to a $37 million judgment after one of his patients went into labor and delivered a daughter, in November 2001. The child survived, but “suffered catastrophic and permanent bodily injuries, impairment, disability, [and] disfigurement,” according to news accounts of the court documents. Many of these injuries were a result of her being born prematurely, at around 23.3 weeks. A pregnancy is generally considered full-term at 37 weeks.

Neither Pendergraft nor the other physician at the clinic had personally examined or assessed the patient, according to court documents, and her pregnancy was several weeks more advanced than she reportedly knew.

The Florida Board of Medicine has disciplined Pendergraft on numerous occasions. In 2007, it suspended Pendergraft’s medical license, and fined him $10,000 for allegedly performing an illegal third-trimester abortion. We are awaiting a copy of the Florida attorney general’s response to the committee, and will post it when it is received.

But even this case underscores the point: Instances of illegal providers can be found, but they are extraordinarily rare. And horrific as those cases may be, these two examples do not support any claims of a pattern of such cases throughout the United States.

Based on the evidence provided by states themselves, it is more than a little misleading for the House Judiciary Committee to suggest that newborn children are being murdered by abortion providers with regularity and abandon; it is the very myth-making and fear-mongering on which they increasingly rely in their push to eliminate safe abortion care.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.