New Jersey Born-Alive Abortion Survivors Protection Act

A218, the New Jersey Born-Alive Abortion Survivors Protection Act, begins with four operative definitions that govern every provision that follows. "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance, device, or method to intentionally kill the unborn child of a woman known to be pregnant or to intentionally terminate that pregnancy, but expressly excludes two categories: after viability, conduct intended to produce a live birth and preserve the life and health of the child born alive, and removal of a dead unborn child. "Attempted abortion" means conduct taken by a person that the person believes will constitute a substantial step in a course of conduct planned to culminate in performing an abortion. "Born alive," with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion. "Health care professional" means an individual licensed by this State to administer health care in the ordinary course of business or practice of a profession. The Council calls particular attention to the structure of the "born alive" definition: the four indicators of life are connected by "or," so any single one is sufficient to trigger the bill's protections.

Section 3 sets out the Legislature's findings and declarations. The Legislature finds and declares, first, that if an abortion or attempted abortion results in the live birth of an infant, that infant is a legal person for all purposes under the laws of New Jersey and is entitled to all protections afforded under State law. Second, the Legislature finds and declares that any infant born alive after an abortion or within a licensed hospital, clinic, or other facility, including a licensed ambulatory care facility, has an identical claim to the protection of the law that would arise for any newborn, or for any person who comes to a licensed hospital, clinic, or other facility, including a licensed ambulatory care facility, for screening and treatment or otherwise becomes a patient within its care. These are legislative findings and declarations, not independently enacted grants of rights; their legal force depends on the operative provisions that follow. The American Council regards them as a moral and legal necessity nonetheless: a child who is fully delivered and displays any sign of life is, by every standard of human dignity, a living patient deserving of care, and the Legislature should say so plainly.

Section 4(a)(1) translates those findings into enforceable duties. If an abortion or attempted abortion results in a child born alive, any health care professional present at the time the child is born alive must do two things: exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care professional would render to any other child born alive at the same gestational age, and ensure that the child is immediately transported and admitted to a hospital for treatment. Failure to satisfy either obligation is a crime of the third degree, punishable by three to five years imprisonment, a fine of up to $15,000, or both.

Section 4(a)(2) addresses the gravest possible violation. A person who intentionally performs or attempts to perform an overt act that kills a child born alive following an abortion or attempted abortion is guilty of violating N.J.S.2C:11-3, New Jersey's murder statute, punishable by 30 years to life imprisonment. The Council believes the deliberate killing of a child who has been fully delivered and is showing signs of life is murder in the plainest moral sense, and this provision names it as such under the law.

Section 4(b) establishes a mandatory reporting obligation. A health care professional and any employee of a hospital, physician's office, an abortion clinic, or any licensed facility who has knowledge of a failure to comply with the requirements of this act must immediately report that failure to an appropriate State or federal law enforcement agency, or both. Failure to report is itself a crime of the fourth degree, punishable by imprisonment for up to 18 months, a fine of up to $10,000, or both. This provision ensures that those closest to a violation cannot simply remain silent.

Section 4(c) provides a specific protection for the mother. The mother of a child born alive following an abortion or attempted abortion, as provided in paragraph (1) of subsection (a), shall not be guilty of conspiracy to commit a crime under the provisions of this act. This carve-out is limited to conspiracy liability; the text does not extend it to other offenses under the act, and the Council reads it accordingly.

Section 4(d) creates a civil remedy running to the mother. The mother of a child born alive following an abortion or attempted abortion, as provided in paragraph (1) of subsection (a), may bring a civil action against any violator of the provisions of this act for damages, including actual damages, equitable relief, and reasonable attorney's fees and court costs. Punitive damages may also be awarded when the violation evidences wantonly reckless or intentionally malicious conduct by the person or entity who committed the violation. This civil cause of action gives the mother a direct path to accountability beyond the criminal process.

As its enacting clause states, A218 supplements Title 2C of the New Jersey Statutes by adding these new criminal provisions. Section 5 provides that the act takes effect immediately upon enactment. The American Council urges every member of the Assembly Health Committee, and every member of the full Legislature, to move this bill forward without delay. A child who survives an abortion is alive. The law should protect that child at least as fully as it protects any other newborn patient, and A218 does exactly that.