Unborn babies do survive attempted abortions.  And, tragically, some of these children die from lack of appropriate medical care and treatment or at the hands of abortion providers like Kermit Gosnell.  The problem of unborn babies surviving abortions only to die alone on a cold, steel table, in a biohazard bag, or under other unthinkable circumstances is real and not the “hypothetical” problem that abortion advocates callously claim.

In response to this stark reality, each year a number of states consider common-sense and humane legislation mandating that infants who survive attempted abortions be given appropriate medical care and treatment.  Florida is among those states considering such legislation this year, seeking to join 29 other states that have enacted such protections.[1]

Cases in Florida of Infants Surviving Attempted Abortions

Florida’s consideration of born-alive infant protection legislation is a much-needed response to reported incidents both in Florida and nationwide of born-alive infants dying following attempted abortions or being injured or disabled as a result of those abortions.

For example, in February 2009, Dr. Pierre Renelique had his Florida medical license revoked in the case of Sycloria Williams, a teenager who, in July 2006, had planned to have an abortion but instead gave birth to a baby girl.  Ms. Williams claimed that her newborn daughter was denied medical care and instead placed in a biohazard bag by the owner of the GYN Diagnostic Center abortion facility in Hialeah.[2] The child died.

Renelique’s defense was that he was not at the clinic when the baby was born, and that he did not even realize that the child had been born until he attempted to perform an abortion on Ms. Williams.[3] However, Renelique made false entries in Ms. Williams’ medical record indicated that he had, in fact, performed the abortion.[4]

The Florida Department of Health determined that he had inappropriately delegated tasks to non-licensed personnel, falsified medical records in the case, and committed malpractice.[5]

Renelique moved his practice to New York.  In response to the Florida revocation, the New York Department of Health held a hearing and determined that Renelique had engaged in “professional misconduct,” including abandonment of a patient.[6] However, the administrative review board chose to place his license on probation instead of revoking it.[7]

In July 2011, a jury of six found abortionist James Scott Pendergraft IV liable for injuries sustained by an infant during a 2001 failed abortion at the Orlando Women’s Center. The jury ordered Pendergraft to pay $36,737,660.16 in compensatory and punitive damages.[8]

Testimony in the case revealed that, on November 15, 2001, C.H. entered the Orlando Women’s Center for a late-term abortion.  At approximately 1:30 PM that day, unlicensed workers administered Cytotec, a drug meant to treat ulcers that can also cause uterine contractions, and RU-486, an abortion-inducing drug not approved for use after the seventh week of pregnancy. Later, Pendergraft’s unlicensed staff, following Pendergraft’s protocols, administered twelve 200 mg doses of Cytotec over an 11-hour period, which vastly exceeded any recommended dosages and put C.H. at risk for uterine rupture.

At about 1:00 AM on November 16, 2001, C.H. was suffering excruciating pain.  She later decided to leave the clinic.  Eventually, she was rushed to a local hospital where she delivered by caesarean section a viable baby girl weighing 1 pound, 3 ½ ounces.  The baby survived but suffered catastrophic disabilities. [9]

And there are cases beyond Florida.  Over the past five weeks, the testimony in the criminal trial of notorious late-term abortionist Kermit Gosnell underscores (yet again) that unborn children do survive attempted abortions.  The grand jury report in the Gosnell case opens:  “This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable babies in the third trimester of pregnancy – and then murdered these newborns by severing their spinal cords with scissors.”[10]

The trial testimony has been gruesome and has provided further proof that infants survive abortions only to sometimes die at the hands of an abortion provider or abortion clinic staff.  Last week, Ashley Baldwin, who began working at Gosnell’s “House of Horrors” abortion clinic when she was 15 years old, testified to “seeing at least five aborted babies moving, breathing, and, in one case, ‘screeching’ after late-term (abortion) procedures” at Gosnell’s clinic.  She also testified that Gosnell used scissors to “snip” the neck of newborns who were moving after the abortion procedure.[11]

Centers for Disease Control Statistics

Statistics from the U.S. Centers for Disease Control (CDC) document the fact that infants die after being born-alive following attempted abortions.  Each year, the CDC puts out reports on deaths, including infant deaths.[12] In its report entitled “Deaths:  Preliminary Data for 2011,” Table 5 of this vital statistics report compiles data on reported causes of infant deaths in both 2010 and 2011.

Included as a cause of death for infants is a category entitled “[o]ther perinatal conditions (P29, P70.3–P76, P78–P81, P83.0–P83.1, P83.3–P96)” which provide data on a number of conditions/circumstances leading to infant deaths.  The designations in parentheses correspond with international medical codes for causes of death.  Overall, this “other perinatal conditions” category captures data from a number of causes of infant death – and the coding schema includes infants who are born-alive following an attempted abortion and who later die.

In 2011, there were 1,298 deaths in the “other perinatal conditions” category, and in 2010 there were 1,270.  These numbers include various causes of death which are designated with a “P” code.  It is important to clarify that, in its report, the CDC data aggregates the “P” codes and does not further break down this data into subcategories to allow us to determine accurately how many of the deaths included in this “other perinatal conditions” category involved infants who were born-alive following attempted abortions.

Specifically, P96.4 – one of the data sets included in the “other perinatal conditions” category – applies to infant deaths not caused directly by the abortion procedure itself, but associated with “[t]ermination of pregnancy, affecting fetus and newborn.”  P96.4 does not include deaths associated with “termination of pregnancy (affecting mother)” or “complications of intrauterine procedures, not elsewhere classified” (which are separately coded).  Nor does it include the number of completed or successful abortions which are separately tracked by the CDC.

Importantly, there are two years in which the P96.4 data has been segregated from other causes of infant death.  In 2003, the CDC reports that 40 newborns died as a result of pregnancy terminations in the United States.  In another 37 cases that year, abortion was a “secondary” cause of death.[13] In 2005, there were 45 reported born-alive deaths after abortion, with another 21 “secondary” deaths associated with abortion.[14]

It is deeply significant that international medical authorities and the CDC do indeed have a mechanism for reporting on deaths involving “[t]ermination of pregnancy, affecting fetus and newborn.”   These deaths are being officially tracked, and this tracking should underscore the fact that infants are being born-alive following attempted abortions.

This discussion of the CDC data related to infant deaths following abortion needs to be set in the larger context of serious concerns over the limitations of reporting and collecting of data related to abortion.  The data related to abortion is seriously flawed and prevents us from having more accurate data both on abortions generally and on the number of infants born alive following attempted abortions.

Data Limitations

Currently, the CDC gets its data on abortions from state public health departments; the reporting is completely voluntary.  Unfortunately, most state abortion-data collection is haphazard and relies on the willingness of abortion providers to share their records voluntarily.  In particular, California — where a quarter of all abortions performed each year in the United States is believed to occur — does not report to the CDC.[15]

Overall, the CDC’s abortion-related data is woefully inadequate, and any statistic related to born-alive infants should, therefore, be treated as an underestimate.  As Dr. Donna Harrison, an obstetrician and gynecologist, and AUL Senior Counsel Clarke Forsythe noted in 2011, the collection of abortion data is “haphazard and relies on the willingness of abortion providers to share their records voluntarily.”[16] Many abortion providers, understandably enough, are not eager to disclose such data.  Thus, while we know that infants survive attempted abortions and that some of these infants later die from lack of medical care or at the hands of abortion providers, we cannot fully appreciate the scope and extent of this tragedy.

To improve our understanding of the problem and to ensure that both women and their babies are better protected, AUL calls on the CDC to release specific data on the number of infants born alive following abortion procedures and who later die (including the data for international medical code P96.4 used in its vital statistics reports) and to improve reporting procedures related to abortion.

[1] Twenty-five states have laws creating a specific affirmative duty to provide medical care and treatment to born-live infants at any stage of development:  Alabama, Arizona, California, Delaware, Georgia, Illinois, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, New York, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Washington, and Wisconsin.  Three states have laws creating a specific affirmative duty to provide medical care and treatment to born-alive infants only after viability: Iowa, Minnesota, and North Dakota.  One state protects born-alive infants at any stage of development from “deliberate acts” undertaken by a physician that result in the death of the infant: Virginia.

[2] See “Doctor loses license in live birth abortion case,” available at http://www.cnn.com/2009/US/02/06/florida.abortion/; “Mother of Baby in Florida Botched Abortion Case Speaks Out,” available at http://www.lifenews.com/2009/02/17/state-3857/.

[3] See “Determination and Order (No. 09-186), In the Matter of Pierre Jean Jacque Renelique,” available at http://w3.health.state.ny.us/opmc/factions.nsf/58220a7f9eeaafab85256b180058c032/97c695aecdb277a2852575d6006f4365/$FILE/HRG%20181349.pdf, at pg. 8; and “Board revokes license of Fla. abortion doctor,” available at http://www.nbcnews.com/id/29053830/ns/us_news-crime_and_courts/t/board-revokes-license-fla-abortion-doctor/#.UWwX5Er2_BY.

[4] See “Determination and Order (No. 09-186), In the Matter of Pierre Jean Jacque Renelique,” available at http://w3.health.state.ny.us/opmc/factions.nsf/58220a7f9eeaafab85256b180058c032/97c695aecdb277a2852575d6006f4365/$FILE/HRG%20181349.pdf, at pg. 6.

[5] Id. at pg. 5.

[6] Id. at pg. 6.

[7] Id. at pg. 9.

[8] See “Judge denies Orlando-area abortion doctor new trial in $36 million malpractice case,” available at http://articles.orlandosentinel.com/2011-08-15/news/os-abortion-doctor-ruling-20110815_1_abortion-doctor-orlando-women-s-center-malpractice-case; and “Babies Born Alive in Toilets at Abortion Center Left to Die,” available at http://www.lifenews.com/2011/07/27/babies-born-alive-in-toilets-at-abortion-center-left-to-die/.

[9] Id.

[10] See In Re County Investigating Grand Jury XXII, MISC. NO. 0009901-2008m, dated Jan. 14, 2011, at pg. 4 (emphasis added).  The entire grand jury report is available at http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf.

[11] See, e.g., “Teen intern at Gosnell clinic recalls hearing aborted fetus ‘screeching’,” available at http://www.philly.com/philly/news/20130412_Teen_intern_at_Gosnell_clinic_recalls_hearing_one_aborted_fetus__quot_screeching_quot_.html.

[12] See, e.g., “Deaths:  Preliminary Data for 2011,”available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_06.pdf.

[13] “Multiple Causes of Death Public Use File,” available at http://wonder.cdc.gov/wonder/sci_data/mort/mcmort/type_txt/mcmort03/ControlTotalTable1.pdf, at pg. 55.

[14] “Multiple Causes of Death Public Use File,” available at http://wonder.cdc.gov/wonder/sci_data/mort/mcmort/type_txt/mcmort05/Table1.pdf, at pg. 55.

[15] See, e.g., Pazol et al., Abortion Surveillance—United States, 2009, Morbidity and Mortality Weekly Report, Nov. 23, 2012, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6108a1.htm?s_cid=ss6108a1_w (noting that California, Delaware, Maryland, and New Hampshire did not provide data).

[16] For a comprehensive discussion and analysis of the inadequacy of abortion data, see Clarke Forsythe and Donna Harrison, How Safe Is This Elective Surgery?, National Review Online, Jun. 14, 2011, available at http://www.nationalreview.com/corner/269610/how-safe-elective-surgery-clarke-forsythe.