“Val Demings supports abortion up until the moment of birth.”
Rep. Val Demings (D-Fla.), who is challenging Rubio, and Sen. Mark Kelly (D-Ariz.) say such attacks mischaracterize their positions because they do not support late-term abortions and accept limits on the procedure.
Republicans defend their allegations by pointing to votes these candidates cast for the Women’s Health Protection Act, a bill that would have restored the right to abortion enshrined in Roe v. Wade, the 1973 case recently overturned by the Supreme Court. The legislation includes exceptions for the health of the mother, which Republicans describe as a loophole that puts no limit on when an abortion can take place.
But the GOP attacks are disingenuous at best. They imply that late-term abortions are common — and that they are routinely accepted by Democrats.
The reality, according to federal and state data, is that abortions past the point of viability are extremely rare. When they do happen, they often involve painful, emotional and even moral decisions.
Finding common ground on basic facts in this debate is not easy.
Opponents and supporters of abortion rights disagree on basic definitions of “birth,” “health” and “late-term” that influences how one views the numbers. Moreover, both sides agree that much of the data collected on abortions is inadequate. For instance, California, Maryland and New Hampshire do not release any abortion data.
But we have dug deep into the files of states that release abortion statistics and interviewed doctors to illuminate how often abortions “up to the moment of birth” actually happen.
When abortions take place
The start of a pregnancy usually is dated from a woman’s last menstrual period, even though fertilization typically happens about two weeks later. The idea is that it is difficult to know exactly when you became pregnant, but you are likely to know when you started your last period.
Pregnancies are divided into three parts, known as trimesters. There is not a standard definition of when these periods begin or end. Florida, for instance, defines the third trimester as starting at 24 weeks while Minnesota says it starts at 28 weeks.
About two-thirds of abortions occurred at eight weeks of pregnancy or earlier, and nearly 90 percent take place in the first 12 weeks, or within most definitions of the first trimester, according to estimates by the Guttmacher Institute, which favors abortion rights. About 5.5 percent of abortions take place after 15 weeks, with just 1.3 percent at 21 weeks or higher.
Still, with more than 900,000 abortions a year in the United States, according to Guttmacher, that means that at least 10,000 occur after 20 weeks, toward the end of the second trimester — when medical technology makes it increasingly possible to save a premature infant.
While a woman can be pregnant for 40 weeks or longer, 66 percent of deliveries in 2020 took place between 37 and 39 weeks — and another 10 percent were premature, with deliveries between 20 and 36 weeks, according to the Centers for Disease Control and Prevention.
The CDC recorded almost 22,000 births between 20 and 27 weeks. Babies born before 25 weeks are considered extremely preterm, with vital organs such as heart, lungs, and brain very immature. But the survival rate has climbed to 30 percent for 22-week babies and 55 percent for 23-week babies, according to a 2022 study.
In other words, there is a period when premature births and late abortions begin to overlap. For many opponents of abortion, the “moment of birth” is not when the pregnancy is full-term — 40 weeks — but when the fetus can survive outside the womb.
“To me, just personally, any abortion that takes place after 22 weeks, after viability, that means that baby could be in a nursery,” said Kathi Aultman, a Florida doctor who conducted abortions in the late 1970s until she turned sharply against the practice after giving birth to her own daughter.
Some states record whether a fetus was born alive during an abortion and if efforts were made to save it. Seven were born alive in Florida in 2022, nine in Arizona in 2020, one in Texas in 2021 and five in Minnesota in 2021. A CDC study of 143 cases between 2003 and 2014 found that most died within hours, with only 4.2 percent surviving for more than 24 hours.
Third trimester abortions
Federal data does not break down when abortions take place after 21 weeks — and many states do not as well. But an examination of state data shows most of those late-term abortions come within the 22nd or 23rd week, when viability outside the womb is not assured. That would place almost all abortions before or within the second trimester.
In Minnesota, in 2021, about 1.8 percent of 10,000 abortions took place after 20 weeks. But virtually all of the 161 abortions took place in the 21st, 22nd and 23rd week. Only five took place later — with one in the 28th week. The pattern was similar in 2020, though one abortion took place as late as 35 weeks.
In Virginia, since 2020, state records show an abortion after 28 weeks has been performed only in three years -- 2001, 2004 and 2015.
In Texas, in 2021, out of more than 50,000 abortions, only 11 were recorded between 21 and 25 weeks — and two above 26 weeks. And in Oklahoma, in 2021 only six out of more than 5,900 abortions took place after 21 weeks.
Colorado is the home of the Boulder Abortion Clinic, which specializes in late abortions. In 2021, state records show, about 1.8 percent of 11,580 abortions in Colorado took place after 21 weeks, but just 60 took place at 25 weeks or later.
Who gets late-term abortions
There is little data on why women might get abortions so late in pregnancy.
Warren Hern, director of the Boulder clinic, said that in his experience virtually all women seeking a late-term abortion are devastated by the prospect. As late as 20 weeks, doctors may order medical tests for neural tube defects, Down syndrome, spine or brain problems or conduct ultrasounds that find birth defects like cleft palate, heart problems and kidney problems.
“In an average week at my office, 25 to 50 percent of the patients have some serious, catastrophic fetal abnormality, and there are some weeks in which this is true for 100 percent of the patients,” he said. “These are uniformly desired pregnancies, and the patients are generally grief-stricken to be ending the pregnancy.” Most of the others have severe medical conditions, such as pregnancy-related high blood pressure, severe hypertension or multiple sclerosis, so an abortion will reduce the woman’s risk of death.
In a 2014 academic study for the journal Prenatal Diagnosis, Hern reported the cases of 1,005 women who over a 20-year period requested an abortion for reasons of genetic disorder, fetal anomaly, or fetal demise during the second or third trimester — with at least one as late as 39 weeks. There were 26 cases of spontaneous fetal death and 2 conjoined twins.
“As for gestational age, many of the patients whose diagnoses of fetal disorder were not made until after the 30th week of gestation reported that ultrasound examination had been evaluated as ‘normal’ at 18 or 20 weeks, and the diagnosis of fetal anomaly was made in late pregnancy when a repeat ultrasound scan was carried out in connection with evaluation or treatment of some other unrelated problem,” Hern wrote.
Katrina Kimport, a sociologist at the University of California-San Francisco, recently published a study of interviews with 28 women who had third trimester abortions, which she defined in the article as after 24 weeks. (A substantial portion of the people she interviewed obtained their abortions after 28 weeks gestation.) Many discovered new information — such as severe deformities — that made them decide to discontinue the pregnancy. But she described two who discovered to their shock they were 25 or 26 weeks pregnant, even though they still had regular periods and had not had morning sickness.
In one of these previously unknown pregnancies, Kimport said in an email, the woman had a debilitating genetic condition and was told the child would likely have it, too. But other women she interviewed whose pregnancy was discovered after 24 weeks gestation “did not have testing or screening to determine the health of the fetus because they already decided they did not want to continue the pregnancy.”
This month, Sen. Lindsey O. Graham (R-S.C.) proposed a bill that would ban abortions nationwide after 15 weeks of pregnancy, saying this would end what he called “late-term abortions.” He argued such a standard would put the United States on a par with Europe, saying that 47 out of 50 countries there did not allow abortions after 15 weeks gestation.
The website of the Center for Reproductive Rights has an interactive world map of abortion laws that would seem to support Graham’s assertion. But Kelly Krause, a CRP spokeswoman, said legal limits do not reflect the experience women have in those countries. “Where countries impose earlier gestational limits for abortion on request, there are often very broad exceptions to these limits — such as socioeconomic concerns, or to preserve the person’s mental health — that extend at the least through viability and often longer,” she said.
Germany, for instance, on paper has a 12-week limit for abortion on request — but the law in reality permits abortions as late as 22 weeks after conception (24 weeks gestation). A woman can seek an abortion that late when, after counseling, she determines an abortion would avert “grave impairment to the pregnant woman’s physical or mental health and if the danger cannot be averted in another manner which is reasonable for her to accept,” section 218 of the criminal code says.
In a 2021 brief to the U.S. Supreme Court when it reconsidered Roe, a group of European law professors said 37 European countries had broad exceptions that allowed abortion through at least 22 weeks of pregnancy.
Moreover, abortion in many European countries is often subsidized or fully funded and women do not face legal hurdles like mandatory waiting periods, making it easier to obtain an abortion before the deadline.
The Republican claim
In response to Rubio’s claim that she supports abortion up to birth, Demings has said she supports abortion “up to the time of viability of the fetus,” which she understands to be about 24 weeks, made in consultation with “a medical professional.”
Elizabeth Gregory, a spokeswoman for Rubio, justified the attack on Demings because of the text of the Women’s Health Protection Act, which Demings supported.
The legislation defines a health-care provider as “a physician, certified nurse-midwife, nurse practitioner, and physician assistant.” The bill would prevent states from prohibiting abortion “after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”
Gregory suggested that “health” was an escape hatch that permitted abortion at any point. A Supreme Court case, Doe v. Bolton, decided the same day as Roe v. Wade, concluded that a medical professional may decide that “health” in the context of abortion could relate to “all factors physical, emotional, psychological, familial, and the woman’s age.”
A Masters spokesman did not respond to a question for comment, but in the past his campaign has also pointed to the legislation as justifying the claim. Kelly has responded that he did not oppose “restrictions on abortion late in pregnancy.”
The campaign rhetoric suggests such late-term abortions happen frequently. The truth is that they do not — and involve difficult, heart-wrenching circumstances glossed over in political ads.
Send us facts to check by filling out this form
Sign up for The Fact Checker weekly newsletter
The Fact Checker is a verified signatory to the International Fact-Checking Network code of principles