New Jersey Born-Alive Abortion Survivors Protection Act

S499, the New Jersey Born-Alive Abortion Survivors Protection Act, supplements Title 2C of the New Jersey Statutes and takes effect immediately upon enactment. The American Council urges every member of the Legislature to vote yes on this bill and asks every constituent to contact their senator and assembly member in support.

The bill begins with four definitions that govern its entire reach. "Abortion" is defined as 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 the pregnancy of a woman known to be pregnant, with an intention other than: after viability, to produce a live birth and preserve the life and health of the child born alive; or to remove a dead unborn child. Those two carve-outs appear within the definition of "abortion" itself; they do not by their terms remove all born-alive situations from the bill's reach, because the bill's duties are triggered by "an abortion or attempted abortion" resulting in a child "born alive," and "born alive" expressly covers expulsion or extraction "as a result of natural or induced labor, cesarean section, or induced abortion." "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.

Section 3 states two legislative findings and declarations. First, if an abortion or attempted abortion results in the live birth of an infant, the 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, 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. The bill frames these as findings and declarations; it does not contain a separate operative provision expressly giving them independent legal effect beyond that framing. We at the American Council regard them as a straightforward affirmation of what equal protection has always required: a child who is breathing and whose heart is beating is a patient, and the law must say so plainly.

Section 4(a)(1) imposes the bill's primary affirmative duty. 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 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 must ensure that the child is immediately transported and admitted to a hospital for treatment. A person who violates this paragraph is guilty of 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. A violation of N.J.S.2C:11-3 is punishable by 30 years to life imprisonment. This provision makes plain that the intentional killing of a born-alive infant is treated under New Jersey's murder statute, not as a lesser offense.

Section 4(b) creates a mandatory reporting obligation and its own criminal penalty. 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 the failure to an appropriate State or federal law enforcement agency, or both. A person who violates this subsection is guilty of a crime of the fourth degree, punishable by imprisonment for up to 18 months, a fine of up to $10,000, or both. The reporting duty extends to both health care professionals and non-clinical employees of the covered facilities; it is not limited to clinical staff alone.

Section 4(c) contains an express carve-out: 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. The exemption runs specifically to conspiracy liability; the text does not address the mother's exposure to other potential theories of liability, so the precise outer boundary of her protection beyond the conspiracy carve-out is not settled by this text alone.

Section 4(d) gives the mother a private right of action. 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 be awarded when the violation evidences wantonly reckless or intentionally malicious conduct by the person or entity who committed the violation. This civil remedy complements the criminal penalties and ensures that a mother who loses a child to a provider's failure or deliberate act has recourse in the courts on her own initiative.

The bill takes effect immediately upon enactment. The American Council believes every day without this protection is a day when a born-alive infant in New Jersey has no explicit statutory guarantee of equal care. We call on the Senate Health, Human Services and Senior Citizens Committee to move S499 forward and on every senator to vote yes when it reaches the floor.