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A Project of The Annenberg Public Policy Center

‘Born Alive’ Baloney

An abortion survivor claims she would have died if Obama had his way. She's wrong. But Obama's counterattack misfires too.


A anti-abortion group is running an ad featuring a woman who says she survived a failed abortion and that "if Barack Obama had his way, I wouldn't be here." She's wrong. If she'd been born in Illinois, Illinois law would have protected her with or without the "born alive" legislation that Obama opposed and that this group supports.
The Obama campaign countered with its own false ad. It accused McCain of wanting to ban abortions even in cases of rape or incest, when in fact McCain has long supported such exceptions. Obama's ad also attributes the "born alive" attack ad to McCain, when it actually was sponsored by an independent group.


A new ad by an anti-Obama group calling itself BornAliveTruth.org features Gianna Jessen, who says that she was "born 31 years ago after a failed abortion." Jessen is speaking out against Obama's opposition to Illinois "born alive" legislation, which seeks to secure human rights and mandate medical care for fetuses who show signs of life after failed abortions, whether or not they can plausibly survive outside the womb.

[TET ]

BornAliveTruth.org Ad: "Gianna"

Jessen: Can you imagine not giving babies their basic human rights, no matter how they entered our world? My name's Gianna Jessen, born 31 years ago after a failed abortion. But if Barack Obama had his way, I wouldn't be here. Four times Barack Obama voted to oppose a law to protect babies left to die after failed abortions. Senator Obama, please support born alive infant protections. I'm living proof these babies have a right to live.
Announcer: BornAliveTruth.org is responsible for the content of this advertisement. [/TET]

"I Wouldn't Be Here"

In the ad, Jessen says that "if Senator Obama had his way, I wouldn't be here." She's wrong. Anyone born in Illinois under the same circumstances as Jessen (who was actually born in California) would have been protected under the state's law as it stood, with or without the legislation that Obama opposed. Jessen's mother had an abortion in her third trimester, at 29-and-a-half weeks according to Jessen's biographer. This means she had an excellent chance of surviving outside the womb. And Illinois law has long stated that if an abortion is performed when the fetus is deemed to be viable, the doctor must:

  • Choose the method of abortion least likely to harm the fetus.
  • Have in attendance a second doctor who can immediately take over care of the child if it's born alive.
  • Use every available means to keep any born-alive child living and healthy.

To do otherwise constitutes a Class 3 felony, which carries a sentence of two to five years in prison. That's been the law in Illinois since 1975, two years before Jessen was born. What Obama voted against was legislation that would have extended the law's protection to any aborted fetus that shows any sign of life, even if doctors are certain that it cannot survive.

A review of the literature shows that fetuses are generally considered viable – that is, capable of surviving outside the womb – after 26 weeks, and sometimes even earlier. Fetuses older than 28 weeks have a good average survival rate, and one 2006 study puts the odds at 90 percent or higher. Illinois law does not specify exactly when viability occurs, but at 29-and-a-half weeks, Jessen would not have been a close call.

Groups like BornAliveTruth.org say laws like the one that applied in Illinois leave discretion to the physician. As the anti-abortion group puts it, they cover fetuses who "are considered viable – by the very doctor aborting them." That's a fact, and reasonable people might agree or disagree on the merits of relying on a physician's discretion. But for Jessen to claim that she "wouldn't be here" without the legislation Obama opposed is false. Jessen's life would have been protected under Illinois law with or without any of the "born alive" bills Obama opposed in 2001,  2002 and 2003.

For the record, Obama says he would have supported "born alive" legislation in Illinois if framed in a way that did not pose a threat to abortion rights granted by the Supreme Court in its Roe v. Wade decision. Abortion-rights groups opposed the two early bills, saying they could be used to challenge a woman's right to an abortion. For more on that, and on claims by anti-abortion activists that Obama supports "infanticide," see our previous article on the subject.

The Pathetic Appeal

The ad makes use of a rhetorical tactic known as a "pathetic appeal," meaning it employs pathos, an appeal to people's emotions. Jessen discusses her own history and calls for Obama to recognize her "right to live," putting an emotional face on a political issue. Other material on the subject, like columns by anti-abortion crusader and BornAliveTruth.org founder Jill Stanek, rely on affecting descriptions of grisly post-abortion scenes.

Calling up strong emotions is often a very effective way of swaying one's audience. But such ads ask the viewer to feel rather than to think. Telling a heart-rending story and telling the whole story aren't always the same thing.

Obama's False Response

Obama's response, meanwhile, is off base as well. The ad’s claim that McCain is “running on a platform to ban abortion even in cases of rape and incest” is false.

[TET ]

Obama/Biden Response Ad

Obama: I'm Barack Obama, and I approve this message. Announcer: John McCain's attacks? One of the sleaziest ads ever. Truly vile. Now, votes taken out of context. Accusing Obama of letting infants die? It's a despicable lie. Even the bill's Republican sponsors said it's untrue. Obama's always supported medical care to protect infants. McCain? He's running on a platform to ban abortion. Even in cases of rape and incest. Sleazy ads. Anti-choice. That's John McCain.[/TET]

McCain for years made clear that he would allow abortions in cases of rape or incest and to protect the life of the mother as well. You can see our Ask FactCheck item on the subject for more details. McCain's running mate, Sarah Palin, supports banning abortion except when necessary to save the life of the mother.

The ad refers to "a platform," but the official Republican Party platform is actually silent on the question of exceptions. It calls for a “human life amendment to the Constitution” but does not specify how such an amendment would be worded. It contains no references at all to exceptions for rape or incest, either to rule them in or to rule them out. And in any case, McCain's own position is clear, and contrary to what the Obama ad claims.

The ad also misrepresents the BornAliveTruth.org ad's sponsorship. Obama's ad quotes newspaper articles that call McCain's attack ads "sleazy" and "vile," and then shows frames from the Jessen ad. But the Jessen ad is not McCain's. It's sponsored by BornAliveTruth.org. The McCain campaign committed a similar misattribution recently; it ran an ad pinning Internet rumors about Sarah Palin on Obama's campaign, without any evidence to back that up.

–-by Jess Henig, with Justin Bank


Illinois 92nd General Assembly. SB 1095, 22 Feb. 2001.

Illinois 92nd General Assembly. SB 1662, 30 Jan. 2002.

Illinois 93rd General Assembly. SB 1083, 19 Feb. 2003.

Illinois 94th General Assembly. HB 0984, 3 Feb. 2005.

Illinois Compiled Statutes. "Illinois Abortion Law of 1975." Accessed 17 Sep. 2008.

107th United States Congress. "Born Alive Infants Protection Act," 23 Jan. 2002.

Planned Parenthood of Illinois. "History of 'Born Alive' Infant Legislation in Illinois." Accessed 17 Sep. 2008.

Bolisetty, Srinivas et al. "Preterm outcome table (POT): A simple tool to aid counselling parents of very preterm infants." Australian and New Zealand Journal of Obstetrics and Gynaecology. 16 May 2006.