Protections for babies who survive abortions are inconsistent across the United States, with fewer than half the states maintaining sufficient protections for babies who are born alive during abortion procedures.[1] Information on abortion survivors is limited, as currently, just eight states report information on babies born alive during abortions (Arizona, Arkansas, Florida, Indiana, Michigan, Minnesota, Oklahoma, and Texas).[2] In late 2020 and early 2021, several states released new data or changed their protections for born-alive babies.

 

For the first time, Texas reported that babies had been born alive during abortions in the state. Texas’ 2018 and 2019 abortion reports, both released in December 2020, show that over a two-year period, 11 babies survived abortions in Texas, the first-ever reported since Texas began reporting abortion complications (including live births) in 2013.[3] This sudden appearance of born-alive babies is likely attributable to two new laws intended to protect such children: new complication reporting requirements for health care facilities that went into effect in 2018 and stronger protections for born-alive babies that became effective in 2019. In 2018, five born-alive babies were reported, one using Texas’ standard abortion reporting form and four using the new complication reporting form. The Texas Department of Health confirmed for the Charlotte Lozier Institute that these were five separate events. In 2019, six born-alive babies were reported using the complication reporting form. The reports did not include information about what happened to the babies following their birth during a failed abortion; however, the state’s Office of the Attorney General has announced that it will investigate the circumstances surrounding these live births.[4]

 

Meanwhile, Florida released its latest preliminary report of 2020 data in early 2021, showing that thus far, seven babies had been reported to have been born alive during abortions in 2020, up from two babies in 2019.[5] Florida first enacted protections for babies who survive abortions in 2013. Since then, 30 babies have been reported to have been born alive during abortions in Florida. Unlike many of its neighboring states, Florida permits elective abortion past 20 weeks. It reports a large volume of late-term abortions every year, which may partially account for the number of born-alive babies who have been reported in the state.[6]

 

In January 2021, Montana began considering a bill that would protect babies born alive during abortions. In a previous session, this bill was passed by both chambers of the state legislature but was vetoed by Governor Steve Bullock. This year, Montana’s newly elected Governor Greg Gianforte was a cosponsor of a similar federal bill during his time in the U.S. Congress and has publicly stated he will sign the bill into law if it passes.[7] Montana has a space on its abortion reporting form to collect information on babies born alive, but the Montana Department of Public Health and Human Services (DPPHS) has not stored this data or included it in Montana’s abortion reports. The current bill contains no requirements that data be shared with DPPHS, but it does establish that medical staff who are aware of violations must report them to law enforcement. Also, in January 2021, the Kentucky legislature passed a born-alive bill by a veto-proof majority.[8] Kentucky’s Governor Andy Beshear chose to allow the bill to pass into law without his signature. The law requires that any baby who survives an abortion must be provided appropriate medical care and given a birth certificate.  

 

Unlike Texas, Florida, Montana, and Kentucky, Massachusetts did not release new data or strengthen protections for babies who survive abortions. Instead, this past December, the Massachusetts legislature passed the ROE Act over the governor's veto.[9] In addition to permitting secret abortions for teenagers and expanding late-term abortion, the ROE Act quietly eliminated the state’s existing protections for babies who survive abortions. Massachusetts has never reported any abortion survivors – the state did not collect this data on its abortion reporting form – and there is no information on babies who survived under the old law or what will happen to abortion survivors now that their legal protections have been removed.

 

Despite polling showing that 77 percent of Americans, including 70 percent of Democrats, support protections for babies who survive abortions, Congress has been unable to strengthen born-alive regulations at the federal level.[10] Due to the patchwork nature of abortion reporting in the United States, no comprehensive national data is available on the number of babies born alive during abortions. It falls to state legislatures to protect born-alive babies and ensure that these little abortion survivors are reflected in state data. While some states like Massachusetts have chosen to roll back born-alive protection, a growing number of states have pursued expanded safeguards for born-alive babies in recent years. With a new pro-abortion administration working on expanding abortion at the federal level, pro-life activity in the states – including protections for born-alive babies – is more impactful than ever.

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[1] Family Research Council map of state born-alive protections

[2] See Charlotte Lozier Institute State Abortion Reporting

[3] Texas Health and Human Services, 2018 and 2019 ITOP Statistics

[4] See Texas Attorney General tweet, December 23, 2020

[5] Florida Agency for Health Care Administration. (2021, January 8). ITOP Report of Infants Born Alive

[6] See Abortion Reporting: Florida (2019), Charlotte Lozier Institute

[7] See Michel, H. (2021, January 28). Gianforte focuses on “resiliency,” says he’ll sign abortion bills. Independent Record.

[8] See Kentucky SB9

[9] See Harned, M.J. (2019). Massachusetts’ draconian abortion proposal. Charlotte Lozier Institute. On Point 31. Also see Donovan, C. (2021, January 20). In abortion limbo, foes of even modest curbs show how low a society can go. Daily Signal.

[10] SBA List/McLaughlin & Associates poll, February 2019