The Legal Battle Over Newborn Abortion

The topic of abortion is a highly debated and sensitive issue, with varying legal and ethical perspectives across different regions. In the context of newborn abortion, it is essential to distinguish between abortion and infanticide, which refers to the killing of a child within a year of their birth. While abortion laws and restrictions differ by jurisdiction, it is important to note that infanticide is illegal in all states and countries. Existing homicide laws apply to cases of intentional killing of a newborn, and there are additional laws and provisions in place to protect newborns, such as the Born-Alive Infants Protection Act in the United States. This act ensures that federal legal protections are extended to children born at any stage of development, including after an abortion. Furthermore, in the Netherlands, the law permits physicians to terminate the lives of newborn infants only under specific due care criteria, such as unbearable suffering with no prospect of improvement.

The legality of partial-birth abortion

Partial-birth abortion (PBA) is a term used by the US Congress to describe a procedure that crosses the line from abortion to infanticide. PBA involves the partial delivery of a living fetus, which is then killed by an overt act such as crushing the skull or suctioning the brain. The procedure is typically performed during the second and third trimesters of pregnancy, when dismembering the fetus becomes more difficult due to stronger bones and ligaments.

The Supreme Court initially struck down a Nebraska law banning partial-birth abortions in 2000, citing the lack of a health exception and an undue burden on a woman's right to choose. However, in 2007, the Supreme Court upheld the federal ban on partial-birth abortions, marking a significant shift in its stance. This decision was met with strong opposition from several organizations, including the American College of Obstetricians and Gynecologists, Planned Parenthood, and the American Civil Liberties Union, who argued that it was a step towards prohibiting abortion altogether.

While the federal ban on partial-birth abortion remains in place, the landscape of abortion access in the United States has shifted significantly following the Supreme Court's 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. This ruling eliminated the federal constitutional right to abortion, leading many states to create new abortion restrictions and bans, further complicating the legality of abortion procedures, including partial-birth abortions.

Existing homicide laws

Homicide is the unlawful killing of a human being. Existing homicide laws would indeed apply to a case of a baby being intentionally killed.

The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law that recognizes an embryo or fetus in utero as a legal victim if they are injured or killed during the commission of any of the over 60 listed federal crimes of violence. The law defines a "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."

The federal law applies only to certain offenses over which the United States government has jurisdiction, including certain crimes committed on federal properties, against certain federal officials and employees, and by members of the military. In addition, it covers certain crimes that are defined by statute as federal offenses wherever they occur, such as certain crimes of terrorism.

As of April 2018, 38 states recognize the unlawful killing of an unborn child as homicide in at least some circumstances. These states have enacted homicide laws that recognize unborn children as victims either throughout the period of prenatal development or during part of it.

For example, in Alabama, legislation that took effect in July 2006 amended Section 13A-6-1 of the Code of Alabama to include "an unborn child in utero at any stage of development, regardless of viability" as a "person" and "human being" for purposes of the state laws dealing with murder, manslaughter, criminally negligent homicide, and assault.

In Arkansas, effective August 2013, the killing of an "unborn child" is capital murder, murder in the first degree, murder in the second degree, manslaughter, or negligent homicide. The definition of "unborn child" was changed in 2013 from a fetus of 12 weeks or older to "offspring of human beings from conception until birth."

In California, the killing of a "fetus" after the "embryonic stage of seven to eight weeks" is considered murder under the state's Penal Code.

These examples demonstrate how existing homicide laws in the United States address the unlawful killing of unborn children and recognize them as victims, with varying definitions of "unborn child" and "fetus" across different states.

State abortion restrictions

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which for nearly 50 years protected the federal constitutional right to abortion. The decision has given states total leeway to restrict abortion or prohibit it altogether. As of October 2024, 41 states have abortion bans in effect, with only limited exceptions. 13 states have a total abortion ban, 28 states have abortion bans based on gestational duration, and 14 states have made abortion illegal.

The abortion restrictions in place vary from state to state. Some states have pre-viability gestational bans, which prohibit abortion before the point of viability, generally considered to be between 24 and 26 weeks. Other states have laws that prohibit specific methods of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures. Some states also have laws that prohibit abortion if sought for a particular reason, such as the sex, race, or genetic anomaly of the fetus.

In addition to these bans, many states have enacted other restrictions that limit access to abortion care. These include targeted regulation of abortion providers (TRAP) laws, which impose burdensome legal requirements on physicians who provide abortion care. Parental involvement laws require providers to notify or obtain consent from parents or legal guardians before a young person can access abortion care. Some states also require pregnant people to receive biased counseling or an ultrasound and to wait a specified amount of time before receiving abortion care.

The impact of these abortion restrictions falls disproportionately on people in marginalized groups, including those facing systemic racism and other forms of oppression. While some states have expanded access to abortion and protected the right to abortion under state law, the reversal of Roe v. Wade has left millions of people in "abortion deserts," where they are forced to travel to access legal abortion care.

Late-term abortion laws

Late-term abortions are uncommon and represent only 1% of all abortions in the US. They are expensive and often require travel and lost wages. They are also time-intensive, requiring treatment over multiple days.

Abortions at or after 21 weeks are rare and only performed by a small subset of abortion providers. They are subject to the same regulations that apply to abortions earlier in pregnancy, including mandatory waiting periods and physician and hospital requirements.

In the US, 14 states ban abortion and 11 have gestational bans that restrict abortion at a certain point in pregnancy. A further 16 states ban abortion at or near "viability", the point where a foetus can survive outside the womb. This is generally considered to be between 24 and 28 weeks after a patient's last menstrual period.

In June 2022, the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This gave states the power to individually regulate abortion or even ban it completely before viability.

State laws surrounding abortion have been in flux since the Supreme Court overturned Roe v. Wade. Many state legislatures have created new abortion restrictions and bans, and some have begun enforcing existing ones.

Some states have passed laws banning clinicians from performing certain abortion procedures commonly used in later abortions. Almost all abortions performed at or after 21 weeks are dilation and evacuation (D&E) procedures, which involve dilating the cervix and evacuating the pregnancy tissue using forceps, with or without suction.

There are several reasons why individuals seek abortions later in pregnancy. These include medical concerns such as fetal anomalies or maternal life endangerment, as well as barriers to care that cause delays in obtaining an abortion.

People who tend to have abortions later in a pregnancy do so because of medical concerns, such as fetal anomalies or maternal life endangerment, as well as barriers to care that cause delays in obtaining an abortion.

Abortions occurring at or after 21 weeks gestation are rare and often difficult to obtain. They are only available in a handful of states and performed by a small subset of abortion providers. They are also typically costly and time-intensive.

Infanticide laws

In the 18th century, infanticide was often carried out due to poverty, shame, despair, and the preservation of honour. Additionally, severely malformed infants were often killed, and the lung flotation test, although unreliable, was used to save the mother from the death penalty. As the motives for infanticide became understood, the image of the 'child murderess' changed, and the act was no longer punished as severely. Illegitimate pregnancies were no longer penalised, and lying-in hospitals for pregnant unmarried women and foundling hospitals for their children were established.

Specific infanticide laws were issued in Prussia in 1756, Britain in 1803, and France in 1811. When psychosis and denial of pregnancy became understood, severe penalties were no longer issued. The justifications for lenient legislation included social circumstances, difficult proof, and curtailed protection of the newborn due to its illegitimacy, helplessness, and diminished awareness.

In modern times, infanticide is considered a homicide and is illegal in every state. Killing a baby is punishable under existing homicide laws, and medical practitioners are required to provide certain medical care to newborns to preserve their life and health. However, there have been recent debates and legislative proposals, such as California's Assembly Bill 2223, that have sparked controversy and raised questions about the legal and ethical boundaries of abortion and infanticide.

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