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Fact-checking claims about abortion and the ‘born alive’ bill

Anti-abortion activists protest outside of the U.S. Supreme Court during the March for Life in Washington, D.C., on Jan. 18, 2019. (AP) Anti-abortion activists protest outside of the U.S. Supreme Court during the March for Life in Washington, D.C., on Jan. 18, 2019. (AP)

Anti-abortion activists protest outside of the U.S. Supreme Court during the March for Life in Washington, D.C., on Jan. 18, 2019. (AP)

Louis Jacobson
By Louis Jacobson April 19, 2019
Paul Specht
By Paul Specht April 19, 2019

North Carolina lawmakers this week approved a controversial abortion bill, which means you likely heard some misleading information about it.

Gov. Roy Cooper vetoed Senate Bill 359, also known as the "Born Alive Abortion Survivors Protection Act," on Thursday, setting up the potential for an attempt to override his veto in the legislature. The bill aims to bring new punishments against medical providers who don’t care for newborns that survive an abortion procedure.

The proposal is as controversial as you might expect and largely passed along partisan lines. Republicans have said protections are needed, while Democrats have said the bill is an attempt to discourage abortions.

Some have taken the rhetoric even farther than that, so we found it necessary to sort fact from fiction and explain the bill.

Laws already protect infants that survive an abortion, despite the claims of one of the bill’s authors.

Sen. Joyce Krawiec, a Republican from Kernersville and one of the bill sponsors, contended that "No, we do not have laws in place protecting babies who are born alive as the result of an abortion," during a floor Senate debate on April 15, according to WRAL.

But she’s wrong. Legal experts say there are multiple laws, state and federal, that cover infants regardless of their birth circumstances.

"There is no lack of statutory or constitutional law that would protect babies through a live birth or a failed abortion," said Neil Siegel, an attorney and professor at Duke Law School.

PolitiFact also addressed this topic in an in-depth story after the U.S. Senate took up a bill with the same name.

The bill doesn’t directly affect mothers seeking an abortion, either, despite what some opponents have suggested.

Sen. Erica Smith, a Democrat from Northampton County, said during the Senate floor debate that the bill "seeks to demonize and criminalize women and doctors when they are most vulnerable." WRAL reported her comments.

The proposal includes new punishments for physicians and nurses. Those who don’t comply with the law or report noncompliance could face felony charges, active prison time and up to $250,000 in fines.

But it doesn’t directly affect mothers. In fact, the bill specifically says:

"The mother of a child born alive may not be prosecuted for a violation of, or attempt to or conspiracy to commit a violation of (general statutes) involving the child who was born alive."

The bill doesn’t "criminalize" women. But the American Civil Liberties Union of NC believes it would affect them indirectly.

"It would harm doctors’ ability to provide — and patients’ ability to access — appropriate, compassionate, evidence-based care," said Molly Rivera, an ACLU spokeswoman.

The bill also doesn’t directly restrict abortion access.

Planned Parenthood and the ACLU claimed on their websites that lawmakers "are trying to restrict access to safe and legal abortion yet again."

State lawmakers put stricter limits on abortion access in 2015, but a federal court recently found their changes to be unconstitutional.

While this bill requires medical care providers to report more information and would enact tough penalties for noncompliance, it doesn’t change when, where, how or why abortions can be performed.

So why do people oppose the bill? Democrats and abortion-rights advocates say it leaves unclear what evidence would be required for enforcement. They also predict the new penalties might discourage doctors and nurses from participating in legal abortions.

Opponents "think it’ll have a chilling effect on doctors who perform later abortions," said Mary Ziegler, an attorney and professor at Florida State University College of Law.

She said Republicans support the bill not only because they want harsher penalties on abortion doctors, but also because it’s a wedge issue.

"It’s an easy way to put lawmakers on the other side of the aisle on the record, making it easy to paint them as extremists," Ziegler said. "And Democrats will often vote against it even though its not about abortion, per se."

The bill doesn’t appear to contradict current laws, either.

A widely-circulated tweet by an activist for abortion rights suggested infants younger than 30 days old can’t be added to a will in North Carolina. Heath Dedmond, a Raleigh-based estate law attorney, told us he’s not aware of any such law.

"I won’t swear there’s nothing, but off the top of my head, I don’t know of anything like that," Dedmond said in a phone interview. "Once you’re alive, you’re alive."

James B. McLaughlin, Jr. teaches the course on wills at Campbell Law School in downtown Raleigh. He said people may bequeath property to future generations — even if they’re not born yet.

"In fact, they may still be unborn when the testator dies," McLaughlin said in an email. "Obviously, a minor requires a guardian of his/her estate to transfer title and manage his/her property, but there are no laws in NC prohibiting a minor from benefiting from property until reaching a certain age.

It’s unclear how often newborns are being intentionally left to die.

During her floor speech, Krawiec acknowledged that there’s no way to know how common it is.

Arthur Caplan, a bioethicist at New York University Langone Medical Center, told PolitiFact he is unaware of examples of "medically active killing," and that while "allowing to die does happen," it occurs "very rarely — say, a baby born with no lungs at 20 weeks."

Bill D’Elia, a spokesman for Senate leader Phil Berger, said North Carolina does not have specific statistics about the number of newborns who are born during an abortion attempt but die due to neglect.

He pointed to a CDC study analyzing infant deaths from 2003-2013 that found 143 instances where death was induced.

And, in her floor speech, Krawiec mentioned a recently-passed law in New York as reason for concern, WRAL reported.

Claims about New York’s law have been exaggerated.

The NC House recently passed a resolution in response to a new New York law, known as the "Reproductive Health Act."

Republicans who wrote the NC resolution described the NY law as "an extreme abortion-on-demand policy that establishes an unfettered right to abortion ... the RHA authorized abortion up until the moment of birth."

A viral Facebook image made a similar claim: that, under the new NY law, it’s legal to "murder" a baby a minute before it would be born. PolitiFact rated it False.

This story was produced by the North Carolina Fact-Checking Project, a partnership of McClatchy Carolinas, the Duke University Reporters’ Lab and PolitiFact. The NC Local News Lab Fund and the International Center for Journalists provide support for the project, which shares fact-checks with newsrooms statewide. To offer ideas for fact checks, email [email protected].

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Our Sources

A digital copy of Senate Bill 359, also known as the "Born Alive Abortion Survivors Protection Act."

A digital copy of NC House Joint Resolution 627, also known as a resolution "Responding to New York’s Barbaric Abortion/Infanticide Law."

WRAL, "'Born alive' abortion bill passes Senate," published April 15, 2019.

Email correspondence with Bill D’Elia, a spokesman for Senate leader Phil Berger.

Telephone interview with Neil Siegel, an attorney and professor at Duke Law School.

Telephone interview with Mary Ziegler, an attorney and professor at Florida State University College of Law.

Telephone interview with Heath Dedmond, a Raleigh-based estate law attorney.

Email correspondence with James B. McLaughlin, Jr., a professor at Campbell Law School who teaches a course on wills.

Electronic correspondence with T. Greg Doucette, a criminal defense and business litigation attorney based in Durham.

NC § 14-23.2. Murder of an unborn child on

NC § 14-17.  Murder in the first and second degree defined on

Public law 107-207, also known as the "Born-Alive Infants Protection Act of 2002," on

Public law 108-212, also known as the "Unborn Victims of Violence Act of 2004" on, "The Facts on the Born-Alive Debate," published March 4, 2019.

North Carolina Health News, "‘Abortion Survivors’ bill gets emotional hearing at NCGA," published April 11, 2019.

PolitiFact, "No, New York abortion law doesn't let mothers abort babies a minute before they would be born," published Feb. 1, 2019; "Abortion foe makes false claim about NY law," published Feb. 22, 2019.

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