By Mary Szoch

This week, PolitiFact, a purportedly independent fact-checking outlet, slapped a tag of “false information” on Family Research Council President Tony Perkins’s Facebook post stating: “In 12 states, children born alive after a failed abortion have no legal protection, and in three more states children born alive after an abortion had legal rights that governors — like Tim Walz — repealed.”

This post was in response to claims made during the presidential debate by ABC News moderator Linsey Davis that “there is no state in this country where it is legal to kill a baby after it’s born,” and Kamala Harris’s reply, “As I said, you’re going to hear a bunch of lies.”

Sadly, for all Americans, but especially for newborns who survive abortions, PolitiFact, Linsey Davis, and Kamala Harris are all wrong.

Here is our fact check of the “fact check.”

1. The Claim: “The Born-Alive Infants Protection Act amended the federal definition of a person so that ‘any federal prohibition on any form of violence, including homicide, would be extended to an infant born alive after abortion,’ said Mary Ziegler.”

The Truth: Yes, the Born-Alive Infants Protection Act of 2002 defined babies born after an abortion as “persons,” but that is all it did. Since the law’s passage, despite state records indicating that at least 277 infants have survived abortions, there have been no federal prosecutions against abortionists.

Congress introduced the Born-Alive Abortion Survivors Protection Act in every congress since 2015, and on September 18, 2024, Senator James Lankford (R-Okla.) brought the bill to the floor of the Senate for unanimous consent. The law would provide federal protections for abortion survivors and remove gaps in state laws currently allowing an abortionist to refuse to provide life-saving care simply because the baby was intended to be aborted.

At present, if an infant is actively killed after birth, it would be a crime of homicide or infanticide. However, if the abortionist, or any health care practitioner with the mother’s acquiescence, fails to render care to an infant abortion survivor and that infant dies as a result, federal law and many state laws do not provide for charges to be brought.

2. The Claim:“Perkins’ claim [that Governor Tim Walz repealed protections for abortion survivors] misconstrues the Minnesota law passed under Walz’s governorship. What the update did, …was remove parts of the previous version of the law ‘that made it sound as if multiple infants were being born alive following attempted abortions.’”

The Truth: Minnesota Department of Health data confirms, “For the calendar year January 1, 2021 through December 31, 2021, 5 abortion procedures resulting in an infant born alive were reported.” Typically, FIVE means multiple. Walz signed a law that deleted the words “to preserve the life and health of the born alive infant” from Subdivision 1 of MN statute 145.423.

As Roger Severino, former Director of the HHS Office for Civil Rights notes, in Minnesota, other laws do not require the treatment of viable baby abortion survivors — first because “criminal neglect requires a duty and breach of that duty,” and second because the “rule of lenity” “provides criminal defendants with the benefit of the doubt when statutes are ambiguous or conflict.” And third, “Walz’s amendments relieved doctors of any duty to give life-saving care to infants after botched abortion[s] (at least when the mother doesn’t want the child to live). This means abortionists can and do get away with letting the cuts, poisons, and early delivery they inflict on babies in botched late-term abortions finish the job after birth.”

3. The Claim:“Abortions resulting in live births, while hypothetically possible, are vanishingly rare.”

The Truth: First, the statement “abortions resulting in live births are vanishingly rare” is an admission that babies survive abortions. Second, it is speculation that these cases are “vanishingly rare.” While previously 10 states (Arizona, Arkansas, Florida, Indiana, Ohio, Oklahoma, South Dakota, Texas, Michigan, and Minnesota) required reporting of infants born alive following an abortion, today, only eight states require reporting after Michigan and Minnesota (under Tim Walz) removed their requirements. With just 10 states ever reporting, there have been 277 reports of babies surviving abortions. To be clear, these reports rely on the good faith of an abortionist who was moments ago trying to take the life of an unborn child and has every incentive not to report a baby’s live birth.

It’s not “live births” that are “vanishingly rare,” it’s the reporting.

Our Ruling: PolitiFact ignored the readily available facts in favor of promoting a pro-abortion agenda.

Every legal expert consulted by PolitiFact was pro-abortion: Mary Zeigler, whose op-eds include “Abortion Restrictions Targeted at Minors Never End There” and “When Fetal Rights Are More Important Than Democracy”; Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale University’s Law School; and David Cohen, a Drexel University law professor who “specializes in the intersection of constitutional law and gender.” So what PolitiFact meant to say was, people okay with killing babies say Tony Perkins is wrong.

The Born-Alive Infants Protection Act of 2002 is definitional only and lacks any enforcement or reporting mechanisms. While it may be illegal to actively kill a baby after she is born, with the mother’s consent, it is not illegal in every state to leave a baby born after an abortion to die from her wounds or early delivery. If no one is required to preserve the life of the child or report on this horrifying reality — or, as is the case in Minnesota thanks to Tim Walz, no one is any longer required to preserve the life of the child or report it — who would know if the abortionist, who was being paid to produce a dead unborn child, ended that child’s life a few minutes after birth?

Overall, PolitiFact was political and ignored the facts.

Mary Szoch is the Director of the Center for Human Dignity at Family Research Council.