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Following the lead of Republicans in Congress, Texas lawmakers are looking to enact civil penalties for doctors who don’t provide medical care in cases where a baby is born alive after an attempted abortion.
Lawmakers in the statehouse gave initial approval to the legislation on Wednesday by a vote of 93-1, with 50 Democrats registered as "present, not voting" in protest of the bill. The Texas Senate approved a similar bill last week.
Rep. Donna Howard, D-Austin, criticized what she called a "blatantly false, inflammatory and dangerous bill."
"There have been zero reported instances of any child born alive after an abortion in Texas," she said from the House floor.
Supporters of the proposal argue that it is necessary and that, in rare cases, infants do survive abortion attempts. So is Howard right?
State data supports Howard
Jacob Cottingham, Howard’s chief of staff, said her statement is based on data available through the Texas Health and Human Services Commission, which tracks different abortion statistics.
Health care providers who perform abortions have been required since 2013 to submit data about complications to the commission, which includes data about infants born alive following an attempted abortion.
There were no reported instances of this happening in Texas between 2013 and 2016, the most recent year with publicly available data.
The data includes information about complications during abortion procedures performed on Texas residents, including those that happened out of state. However, these complications are not identified individually, only in bulk.
From 2013 to 2016, the number of unspecified complications experienced by Texas residents during abortions in other states ranged from 417 to 1,347 each year.
Howard’s claim was about reported cases of infants born alive after attempted abortions within the state of Texas, so we did not dig deeper into these numbers.
How can a baby be born alive after an abortion?
Texas law currently details the "rights of a living child after an abortion or premature birth" in statute, stating that any child in this category is "entitled to the same rights, powers, and privileges as are granted by the laws of this state to any other child born alive after the normal gestation period."
Under the law, a baby is considered "born alive" if it is removed from its mother following an attempted abortion and then breathes or shows other signs of life, including having a heartbeat, pulsation of the umbilical cord or "definite movement of voluntary muscles."
The legislation Howard spoke against would establish a "physician-patient relationship" between the baby and the doctor who performed the attempted abortion and would allow parents to file suit against the doctor.
In a letter voicing opposition to the bill, Dr. Karen Swenson, a doctor in Austin representing the Texas District of the American College of Obstetricians and Gynecologists, said these cases are "exceedingly rare."
"Furthermore, the idea that physicians deliver, and then kill or neglect treating, a viable fetus is unfounded and dangerous misinformation," she wrote.
The proposed bill does not limit protections based on the gestational age of the baby at the time of the abortion, and it requires doctors to offer the same care they would to "any other child born alive at the same gestational age."
Most abortions in Texas are performed before a fetus is considered viable, or able to survive outside the womb.
There are different medical opinions about when a fetus reaches this critical threshold ranging from 24 to 28 weeks post-fertilization. Texas bans abortions after 20 weeks, unless a mother’s life is in danger or there is a severe fetal abnormality.
Nationwide, less than 1.3 percent of the 638,169 abortion procedures performed in 2015 occurred after 21 weeks, according to the CDC.
Little nationwide data exists
Nationally, there is little anecdotal evidence of a live birth occurring after an attempted abortion and there is no consistent national data about this situation.
A report from the Centers for Disease Control and Prevention looked at infant death certificates from between 2003 and 2014 and identified 143 infants who were born alive after an attempted abortion and died shortly thereafter.
This is not a complete count of infants who were born after an attempted abortion, just those who died after birth.
The CDC suggests that this number could be an underestimate, given that the agency was attempting to identify deaths that occurred after an induced termination (abortion) versus a spontaneous termination (miscarriage) and in some cases the language describing the situation was unclear.
Of those 143 cases, 97 involved a "maternal complication or, one or more congenital anomalies."
To put this number into context: During the same 12-year period, there were more than 9.3 million abortion procedures performed in the United States in total.
Howard said, "There have been zero reported instances of any child born alive after an abortion in Texas."
Health care providers had to start reporting complications from abortion procedures to the state in 2013. We can’t know for certain whether any infants were born alive following an abortion before 2013, but Howard’s claim is limited to those cases that were reported.
Since providers had to start reporting this occurance, there have been zero cases.
We rate this claim True.
TRUE – The statement is accurate and there’s nothing significant missing.
Texas House of Representatives, 86th Legislative Session,1:08:30, April 16, 2019
Texas Legislature Online, House Bill 16, accessed April 17, 2019
Email interview with Jacob Cottingham, chief of staff for Rep. Donna Howard, April 17, 2019
Texas Health and Human Services Commission, Induced Terminations of Pregnancy Statistics, accessed April 17, 2019
Austin American-Statesman, Divided House backs ‘born-alive’ abortion bill, April 16, 2019
Austin American-Statesman, Senate backs ‘born alive’ abortion bill, April 8, 2019
Washington Post, Senate blocks bill on medical care for children born alive after attempted abortion, Feb. 25, 2019
Centers for Disease Control and Prevention, Mortality Records with Mention of Termination of Pregnancy, accessed April 17, 2019
Texas Health and Safety Code, Public Health Provisions Chapter 171, accessed April 17, 2019
Centers for Disease Control and Prevention, Abortion Surveillance -- United States, 2015, Nov. 23, 2018
Texas Family Code, The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship Chapter 151, accessed April 17, 2019
American College of Obstetricians and Gynecologists, Texas ACOG Opposes HB 16 by Rep. Leach, March 12, 2019
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