Politics & Policy

Ben Sasse Wants to Ban Infanticide after Botched Abortions

Senator Ben Sasse (R, Neb.) on Capitol Hill in Washington, D.C., September 27, 2018. (Erin Schaff/Reuters)
Democrats are expected to oppose the measure.

On the heels of Virginia governor Ralph Northam’s comments seeming to defend infanticide, Senator Ben Sasse (R., Neb.) has reintroduced his Born-Alive Abortion Survivors Protection Act. Sasse will call for unanimous consent to the bill today and, using the dual-tracking process, will also call for an expedited roll-call vote regardless of whether any senators object on the floor.

A Virginia bill that would drastically loosen restrictions on third-trimester abortion prompted this discussion. During a hearing last week, the legislation’s sponsor said it would allow a woman to receive an abortion even during labor, so long as a single doctor said it would improve the woman’s physical or mental health.

Northam’s infamous comment came in an interview on WTOP last Wednesday. “If a mother is in labor, I can tell you exactly what would happen,” Northam said. “The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”

These comments very clearly leave room for doctors to allow newborn infants to die, depending on the circumstances and on whether the mother wanted an abortion. Under pressure, Northam refused to apologize or clarify, instead doubling down in a statement and later saying he had no regrets.

Sasse was the first U.S. senator to slam Northam, calling his comments “morally repugnant” in a statement to National Review. “In just a few years pro-abortion zealots went from ‘safe, legal, and rare’ to ‘keep the newborns comfortable while the doctor debates infanticide,’” Sasse said. “I don’t care what party you’re from — if you can’t say that it’s wrong to leave babies to die after birth, get the hell out of public office.”

Several other GOP senators joined in, including Josh Hawley (Mo.), Ted Cruz (Texas), and Marsha Blackburn (Tenn.). Democratic senators, meanwhile, claimed not to have heard the Virginia governor’s remarks and refused to articulate their views on late-term abortion.

As a result of Sasse’s decision to bring his legislation to the floor, those Democrats will no longer be able to hide their moral cowardice. “On Monday, I’m going to ask all 100 senators to come to the floor and be against infanticide,” Sasse said on the Senate floor last week. “This shouldn’t be complicated.”

The legislation, cosponsored by dozens of Republicans, would create criminal penalties for doctors who allow infants to die rather than providing medical care after attempted abortion procedures. It mandates that a child born alive in an abortion clinic be transported to a hospital for further care. Health-care practitioners must report any violations of the law, and the bill institutes penalties for intentionally killing a newborn, including fines and up to five years’ imprisonment. It would also grant the woman on whom the abortion is performed civil cause of action against the abortionist and protection from prosecution if her child is not cared for after birth.

Though nothing in the bill limits the right to an abortion, Senate Democrats are expected to oppose it. In 2018, the House of Representatives voted on a nearly identical bill, and all but six Democratic congressmen voted against it. One of the six, Tim Walz (Minn.), immediately apologized for having supported the bill and said he voted for it mistakenly because he hadn’t realized what the legislation was.

“Of course, if a baby is born alive then everything must be done to protect that life,” Representative Jan Schakowski (D., Ill.) said during floor debate over the bill, explaining why Democrats opposed the legislation. “No one disagrees with that. And perhaps more importantly it is already the law. And to suggest otherwise is just wrong.”

“This bill is a solution in search of a problem,” said Representative Judy Chu (D., Calif.). “It’s unnecessary, redundant, and part of a broader attack on women’s health and reproductive health from the chamber and the Trump administration.”

This will likely be the line that Senate Democrats take on Monday. According to Politico’s reporting, “Democrats argue that any harm to an infant is already a felony and that the bill unnecessarily restricts doctors from making case-by-case decisions about what is best for infants and mothers.”

The last half of that line should sound familiar: It is nearly indistinguishable from what Northam said last week. Every talking point that Democrats will use to avoid supporting Sasse’s bill is a lie concocted to justify their refusal to openly condemn infanticide of babies that survive abortion.

They say leaving newborn infants to die is already illegal. It isn’t. As of 2014, only 26 states had laws creating a specific affirmative duty for physicians to provide medical care to infants born in botched abortions, and as of 2016, only six states required that abortion providers report instances of infants born alive under such circumstances. In New York, a born-alive protection was on the books, but the state’s recent abortion expansion removed it. The new Virginia bill would downgrade the requirement that doctors provide care to newborn infants from a “must” to a “shall” standard, a legally significant distinction.

Democrats say leaving infants to die after failed abortion procedures never happens. If so, the sustained Democratic objection to passing this bill is inexplicable. And in fact, while there is little specific data about such cases, at minimum there are instances where infants die after an attempted abortion. Centers for Disease Control statistics show that, between 2003 and 2014, 588 infant deaths were caused by “termination of pregnancy, affecting fetus and newborn.” At least 143 of these deaths could definitively be classified as involving induced abortion; the CDC acknowledges this as an underestimate. There’s no way to determine whether those infants received the medical care they otherwise would have.

If faceless statistics aren’t compelling, consider the grisly case of abortionist Kermit Gosnell, who is currently serving life in prison, in part for snipping the necks of hundreds of babies born alive in his clinic to sever their spinal cords and kill them. The grand jury in his case concluded that this had likely taken place hundreds of times over his decades of work.

Finally, and most grotesquely, Democrats pivot to the Northam line: They say, not in so many words, that even if killings like these do happen, it’s just part of good medicine. During a Senate Judiciary Committee hearing in March 2016 on the born-alive bill, Senator David Vitter (R. La.) asked whether any of the assembled witnesses disagreed that a baby born alive after a failed abortion “should get all available medical care for survival.”

“I do disagree,” Diana Greene Foster, a professor of obstetrics replied. “Doctors and nurses and women themselves know best whether care would lead to survival,” she said. If Politico’s summary of the Senate Democrats’ line is correct, their strategy for opposing Sasse’s legislation will be to agree with her.

The bill would, they say, “unnecessarily restrict doctors from making case-by-case decisions about what is best for infants and mothers.” But the bill’s text doesn’t mandate any particular kind of care at all; it requires that physicians “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 practitioner would render to any other child born alive at the same gestational age.”

In other words, it leaves the specifics of medicine to medical doctors but forbids them from changing their medical standards for infants who were meant to be aborted. If Democrats refuse to support this bill, they are saying that leaving an infant to die is something that can be overlooked.

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