Last week’s vice-presidential debate once again elevated the very controversial abortion law that Gov. Tim Walz signed in 2023, which many pro-life advocates claim now allows a doctor to let an infant die after a failed abortion.
Even before the debate, several articles purporting to “fact check” the claim concluded that it was false. These include fact checks from Snopes and Politifact. Now, after the debate, national new outlets including PBS and NBC as well as MPR and the Star Tribune locally concluded this is false. CBS stopped short of a false conclusion and labeled it “misleading.”
Fact checks fail to report opposing views
These fact checks share a couple key shortcomings which reveal the authors really had no interest in the facts. The first, and most telling of the reporter’s own intent to persuade versus inform, is the complete absence of any opposing view on how to read the amendment to the statute. I can tell you there are plenty of folks, including actual attorneys, in Minnesota with an opposing interpretation of the statute who could have been quoted and sourced. Rather, to the extent an attorney is sourced, they are strident pro-choice advocates like Mitchell Hamline School of Law professor Laura Hermer whose “current research focuses on reproductive rights”, according to her law school bio.
Similarly, these fact checks only cite the views of the Democrats who sponsored the legislation and ignored the Republican legislators who vocally opposed the change. If they had, then they might have had to stop short of calling the claim false and instead, CBS did, opt for misleading.
The most thorough analysis of how this change in law involves infanticide from both a legal and historical perspective was written by Charles Camosy and published in First Things last August. He’s a professor of medical humanities at the Creighton University School of Medicine and a moral theology fellow at St. Joseph Seminary in New York. He clearly sits on the pro-life side and makes the case that the “intentional non-treatment of newborns so they die is now routine in our culture.” His views would have been a nice contrast to Prof. Hermer’s.
Fact checks repeat advocates talking points without context
The fact checks also unequivocally repeat pro-choice advocates talking points as fact without further context. They repeat infanticide is illegal in every state as if that ends the debate. Of course, killing an infant who is clearly healthy and full of possibility is illegal. But we are operating in the gray space where a baby was either born during an abortion or born with severe disabilities that will make their life and their parents’ much more challenging than planned. Camosy’s article is the only one I’ve found that takes an honest effort to discuss this gray area.
Another oft repeated talking point argues that late-term abortions are exceedingly rare as if that might mitigate the potential to take advantage of the availability of abortions for any reason so late in pregnancy. Fortunately, abortions late in pregnancy are exceedingly rare and they do usually involve serious complications. But that is not relevant to reading the statute.
Changes clearly remove legal protections
At this point, a look at the statute will be helpful. Some fact checkers do acknowledge the changes to the statutory text suggest opponents of the law might be right. Snopes admits the change “might appear damning in a vacuum ….” Below is how the law amending the text reads. Thankfully, in Minnesota, our laws clearly strike the text being removed and underline the new text, which makes the change easy to identify.
Sec. 56. Minnesota Statutes 2022, section 145.423, subdivision 1, is amended to read:
Subdivision 1. Recognition;
medicalcare.A born aliveinfantas a result of an abortionshall be fully recognized as a human person, and accorded immediate protection under the law. All reasonable measures consistent with good medical practice, including the compilation of appropriate medical records, shall be taken by the responsible medical personnel topreserve the life and health of the born alive infant.
Opponents of the law focus on how it deletes the requirement on medical personnel to “preserve the life and health of the born alive infant” and to instead “care for the infant who is born alive.” Deleting the requirement to preserve the life and health of the infant does look rather damning, to say the least. The change unambiguously removes language intended to ensure that medical personnel preserve the life of infants born alive by taking all reasonable measures consistent with good medical practice. The removal of this text provides a sound basis to conclude that this change in law removes a legal protection to preserve the life of an infant and, without this protection, allows for situations where medical personnel could let an infant die. This is the intentional non-treatment that Camosy discusses in his First Things article.
“Context” goes both ways
Nonetheless, fact checkers, to the extent they even acknowledge this damning text, take pains to brush aside what our lying eyes see with “additional context.” To be sure, judging a statute requires reading a state statute within the broader context of state and federal law. Proponents claim that the new law can’t change how medical personnel treat infants. They argue the sentence preceding the change still states an infant born alive must still be recognized as fully human and accorded immediate protection under the law followed by the rejoinder that infanticide is illegal in every state. Federal law also protects infants born alive. Thus, medical personnel must still keep an infant alive, despite the change in law.
These arguments make clear statements of law—infanticide is illegal—when the legal context around situations involving infants born alive during an abortion or during a birth with severe complications are anything but clear. These are incredibly difficult situations for medical personnel and parents to navigate. Camosy contends that “withholding life-sustaining treatment because the baby is ‘too disabled and we want them to die now’ is fairly common in today’s neonatal intensive care units.” I have no basis to know whether this is as common as Camosy claims, but he identifies a gray area that exists in both law and ethics around preserving the life of an infant. Fact checkers universally ignore this context.
Fact checkers fail to fact check defenders of the law
If the new law did not change legal protections for infants, then why did the law need to change in the first place?
The only reason we are given rests on the claim that the law required doctors to prolong an infant’s life when the infant was going to die. In this case, defenders of the new law claim parents were not allowed to hold their infant before they died. Not one fact checker bothered to fact check this claim. Yet anyone taking a fair look at the statute would need to ask a simple question: Was the previous law “requiring these unnecessary and harmful medical interventions for infants that were going to die” as Sen. Erin Maye Quade, the author of the law, claims?
The text of the previous law requires medical personnel to take “[a]ll reasonable measures consistent with good medical practice.” It would not be reasonable or good medical practice to withhold a dying infant from being held by their parents. Therefore, the previous law already required medical personnel to provide appropriate care in this circumstance. That seems rather obvious and then begs the question: Was a parent ever denied the opportunity to hold their infant? Reporters never asked that follow-up question.
As far as I can see, the defenders of the law never actually offer any concrete examples of a parent not being allowed to hold their infant. If it has happened, it must be rarer than the “exceedingly rare” situation where an infant is born alive after an abortion attempt. Another obvious point that fact checkers missed.
Courts must give meaning to the change in the law
Ultimately, the law removed language intended to ensure medical personnel took appropriate steps to preserve the life and health of an infant born alive. Courts must give meaning to this change. Regardless of the exact contours of how a court might give meaning to this change, the change does lower the standard for preserving the life and health of a born alive infant. There is a clear shift in language that cannot be ignored.
Defenders of the law might argue the change simply offered a clarification. But, if the law intended to just clarify things, the law would have retained the language on preserving the life of the infant and introduced additional language clarifying what reasonable and good medical practice means in these difficult situations. Removing the language does lower the standard.
New law applies to all infants born alive
The law made one more major change to the statute which nearly everyone misses. As the text of the law copied previously clearly shows, the new law no longer just applies to situations where an infant is born alive as a result of an abortion. The reference to abortion is deleted from the text. Therefore, whatever lower standard for preserving the life and health of a born alive infant which exists in this law today now applies to all infants. Therefore, the law now moves beyond the exceedingly rare situation where a baby is born alive after an abortion.
In the end, fact checkers have not done their due diligence to assess the full contours of what this change in law really means for infants born in Minnesota. They have simply parroted what defenders of the law tell them and failed to give space to opposing views.
It would be okay if a reporter concluded the statements made by J.D. Vance last week did not fully represent the issue after a thorough vetting and reporting of the opposing views. It would even be okay to call his statements misleading if that was their honest conclusion after an honest vetting. They would be wrong, but it would be okay. Unfortunately, I guess that’s not how news outlets do business these days.