The Fact-Checking on Vance’s Claim About Abortion Seems Strained

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During last night’s debate, JD Vance made a claim about a law which Tim Walz signed in Minnesota regarding abortion. “The Minnesota law that you signed into law, the statute that you signed into law, it says that a doctor who presides over an abortion where the baby survives, the doctor is under no obligation to provide lifesaving care to a baby who survives a botched late-term abortion,” he said.

News outlets were quick to fact-check that claim and to uniformly say it was false but the reasoning employed seems a bit strained to me. On closer inspection I think they got this wrong. Let’s look at some examples. First up, here’s the NY Times’ take.

Mr. Vance is distorting Mr. Walz’s repeal of a so-called born alive law that had been in effect in Minnesota since the 1970s. That law required doctors to report when a “live child” was “born as the result of an abortion,” and to provide “all reasonable measures consistent with good medical practice” to care for that infant.

So there was a law in Minnesota which Walz helped repeal. But the Times’ fact-check then takes a sudden turn.

Doctors have argued to get rid of these laws because there are already laws requiring them to provide appropriate medical care to any human. And the extremely rare cases of infants who have been “born alive” were infants who were close to death. Doctors said the law took decision-making away from families, and forced them to do invasive procedures at the end of infants’ lives, taking them away from their parents in their dying moments.

So doctors were against these laws. Which doctors? Were any of them pro-life? Were they all Planned Parenthood supporters? More on that in a moment. But we get this block of anonymous arguments in favor of Walz’ position. Even so, the argument being offered is curious. The prior law “took decision-making away from families.” Decisions about what, exactly? In context this seems to mean decisions about whether to provide lifesaving treatment to a living infant. The next paragraph seems to agree with that interpretation.

In the five years that Mr. Walz has been governor, there have been eight recorded infants “born alive”: three were classified as “previable,” meaning they were unable to survive outside the uterus; two had fetal anomalies and died shortly after birth, and three were provided “comfort care as planned” and died shortly after birth. Comfort care is a kind of hospice care, which suggests that those infants were not expected to survive, and that doctors did, in fact, provide care they believed to be good medical practice.

Hospice care for newborns. We’re supposed to gloss right over that as normal I guess. The Times says this “suggests” those infants weren’t expected to survive. The Daily Signal has more details on these individual cases.

…between Jan. 1, 2021, and Dec. 31, 2021, physicians performed five abortions that resulted in a baby’s live birth.

No measures were taken to help the first baby, who reportedly had “fetal anomalies” that resulted “in death shortly after delivery.” Two of the babies were given “comfort care measures” as they died. No measures were taken to “preserve life” of the last two babies, who were previable…

But between Jan. 1, 2019, and Dec. 31, 2019, three abortions resulted in born-alive babies who were then allowed to die. The first baby reportedly had “fetal anomalies” but also had “residual cardiac activity” for two minutes, yet no efforts were taken to preserve that baby’s life, and “the infant did not survive.”

The second baby died while “comfort care measures” were provided. The third baby was previable and did not receive any attempts to preserve his or her life.

But here we get into a bit of circular reasoning. The doctor and the parent planned to kill the baby in an abortion. The baby survived somehow. The doctor (or the parents) determined the baby would not survive and gave the baby end of life care instead of lifesaving measures. But of course that was their goal all along. We don’t know if these babies could have survived, we only know that no adult in the room wanted them to survive and they didn’t. The CBS fact-check has more on how Walz changed the law to streamline this process.

Previously, the law required medical professionals to take all reasonable measures to “preserve the life and health of the born alive infant.” After the update, medical personnel are required to take all reasonable measures “to care for the infant who is born alive” —  a change advocates say allows parents of infants not expected to survive to forgo extraordinary and futile interventions. 

Notice the difference? The old law required doctors to “preserve the life and health” of the infant. The new law signed by Walz requires “care.” But as we’ve just seen, a doctor can decide to provide hospice care and that’s considered care even though it’s not an effort to preserve life. In an editorial supporting this new law, the Minnesota Star Tribune said as much about the requirement to preserve life. [emphasis added]

The updated law still says that any infant born alive shall be fully recognized as a human person and accorded immediate protection under the law. The key difference is the care requirement. The language about preserving the infant’s life and health is gone. The law now requires “all reasonable measures consistent with good medical practice … shall be taken by the responsible medical personnel to care for the infant who is born alive.”

What that means, as Liebling noted, is that families and physicians decide together how best to proceed when a termination past the point of viability is tragically required.

This same article finally gives us a hint about the doctors who supported this change. The article quotes Dr. Erin Stevens, a Minnesota OB-GYN. Dr. Stevens had previously written to the Star Tribune about her outrage over the Supreme Court’s leaked draft overturning Roe.

Many people who are anti-abortion hold their beliefs with some misconstrued notion that they’re “saving babies,” and they see pregnancy through a lens solely crafted by their own experiences or perceptions…

I am enraged that my daughters face the possibility of growing up with fewer rights than I have now. I won’t stand for it. None of us should stand for it. We must all urge our lawmakers to pass the Women’s Health Protection Act and to fight against this blatant disregard for humanity.

She’s entitled to her opinion but she pretty clearly is not a politically disinterested party. She’s a partisan using her position to push for a specific political outcome. No wonder the Times didn’t use her name in that paragraph about doctors’ views.

With all this in mind, look at what Vance said again during the debate. “The Minnesota law that you signed into law, the statute that you signed into law, it says that a doctor who presides over an abortion where the baby survives, the doctor is under no obligation to provide lifesaving care to a baby who survives a botched late-term abortion,” he said.

That’s exactly what the law Walz signed did. Quoting the Star Tribune, “The language about preserving the infant’s life and health is gone.” In other words, the physician is under no obligation to provide “lifesaviing care,” only “care” which can mean end of life care. J.D. Vance was arguably right in what he said and the fact-checkers who rated this false are wrong.