Why a Ban on Infanticide Is Necessary

Sen. Ben Sasse at a Senate Judiciary Committee hearing in 2017. (Joshua Roberts/Reuters)
Ben Sasse’s Born-Alive Abortion Survivors Protection Act is a currently nonexistent safeguard for infants delivered after attempted abortions.

On Monday evening, Senator Ben Sasse (R., Neb.) called for unanimous consent to his Born-Alive Abortion Survivors Protection Act, which would require that infants delivered alive during attempted abortion procedures be given appropriate medical care.

Senator Patty Murray (D., Wash.) objected to the bill on the floor on behalf of her Democratic colleagues, preventing the legislation from receiving unanimous consent. “We have laws against infanticide in this country,” Murray said. “This is a gross misinterpretation of the actual language of the bill that is being asked to be considered, and therefore I object.”

It is worth examining why Sasse’s legislation, which now has 42 Republican cosponsors, is neither redundant nor unnecessary. Most important, there is no existing federal law that prohibits the denial of medical care to infants born alive in the context of abortion, which is what this bill would do.

In 2002, the Born-Alive Infants Protection Act (BAIPA) passed Congress by unanimous consent and was signed into law by President George W. Bush, establishing that the terms “person,” “human being,” “child,” and “individual” in federal law include every infant born alive, even after an abortion. But that’s all it did — it instituted no penalties for physicians who neglected to care for such infants.

That’s what Sasse’s bill is for, enacting an explicit requirement that newborns be afforded “the same degree” of care that “any other child born alive at the same gestational age” would receive. As of 2014, only 26 states had some kind of statute mandating care for infants born alive after an attempted abortion, and as of 2016, only six states required even reporting such births at all. What’s more, those state laws can be changed to remove existing protections.

New York’s Reproductive Health Act, for example, explicitly repealed section 4164 of the state’s public-health law, which had stated that children born alive during an abortion received all the protections of state law. A proposed bill in Virginia would downgrade the requirement that physicians care for born-alive infants from a “must” to a “shall” standard, a legally significant distinction. And, of course, it was that same bill that prompted the comments of Virginia governor Ralph Northam, who appeared to suggest that infants could be allowed to die in some circumstances — the remarks that spurred Sasse to call for unanimous consent on his legislation.

“If a mother is in labor, I can tell you exactly what would happen,” Northam said in an interview on WTOP last week. “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.”

Infanticide of babies born alive after attempted abortions — or intentionally delivered alive and then killed as a cheaper or easier method of abortion — does happen, and former abortionist Kermit Gosnell is living proof. Gosnell is currently serving life in prison in part for illegally modifying late-term abortion procedures, delivering live infants, and using scissors to sever their spinal columns. Because the Pennsylvania state government enforced its clinic-safety laws so loosely and inspected abortion clinics so rarely and in such a cursory fashion, he was able to conduct this illegal and grotesque killing for years. The grand jury in his case determined that he likely had killed hundreds of babies this way.

And Kermit Gosnell’s activity in his house of horrors wasn’t the only example of born-alive infants being allowed to die.

It is difficult to prosecute cases like these — should they occur and be reported, already a big “if” — without a statute affirmatively requiring care for newborn infants born alive in the context of abortion. Consider this Wall Street Journal column that describes some crucial details from Gosnell’s criminal trial:

Prosecutors wanted the jury to distinguish Dr. Gosnell’s butchery from legal abortions. They called to the stand a legitimate abortion doctor, obstetrician Karen Feisullin, to explain how to do it properly. She was asked: “What is your obligation if in fact a baby is born alive?”–something she said hadn’t happened in her practice. “It depends on the gestational age,” she said, “but just, you know, as a human being, you would want to comfort, at least comfort care.” Asked to elaborate, she said: “You . . . really just keep it warm, you know. It will eventually pass.”

This is a “normal” abortion provider, not a criminal like Kermit Gosnell, describing precisely the type of case that Northam alluded to in his interview. There are instances in which medical doctors are willing to let living infants die from lack of proper medical care — and the law currently turns a blind eye. That’s what the new born-alive bill would fix.

Something to Consider

If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (conference calls, social-media groups, etc.). And importantly, NRPLUS members help keep NR going. Consider it?

If you enjoyed this article, and were stimulated by its contents, we have a proposition for you: Join NRPLUS.

LEARN MORE

Most Popular

White House

The Damning Inspector General’s Report

It is hard to believe that the run-up to the presidential-election year has plumbed such a depth of farcical degradation. It must be that Trump’s influence has contributed to unserious responses, but he can’t be blamed for the unutterable nonsense of his opponents and the straight men of the political class ... Read More
White House

The Damning Inspector General’s Report

It is hard to believe that the run-up to the presidential-election year has plumbed such a depth of farcical degradation. It must be that Trump’s influence has contributed to unserious responses, but he can’t be blamed for the unutterable nonsense of his opponents and the straight men of the political class ... Read More
Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
World

Present at the Demolition

Economists at the World Bank and International Monetary Fund must feel pretty lucky these days. They work for just about the only institutions set up in the aftermath of World War II that aren't in the middle of an identity crisis. From Turtle Bay to Brussels, from Washington to Vienna, the decay of the economic ... Read More
World

Present at the Demolition

Economists at the World Bank and International Monetary Fund must feel pretty lucky these days. They work for just about the only institutions set up in the aftermath of World War II that aren't in the middle of an identity crisis. From Turtle Bay to Brussels, from Washington to Vienna, the decay of the economic ... Read More
World

Well . . . .

So much for my prophecies of doom. Britain's Conservatives won, and they won with a very healthy parliamentary majority, breaking through Labour’s “red wall” across the industrial (and post-industrial) Midlands and the North. The BBC: Leave-voting former mining towns like Workington, which was seen as ... Read More
World

Well . . . .

So much for my prophecies of doom. Britain's Conservatives won, and they won with a very healthy parliamentary majority, breaking through Labour’s “red wall” across the industrial (and post-industrial) Midlands and the North. The BBC: Leave-voting former mining towns like Workington, which was seen as ... Read More
White House

The Costs of Trivializing Impeachment

Resorting to a vague “abuse of power” theory, the House Judiciary Committee Friday morning referred two articles of impeachment to the full House on the inevitable party-line vote. The full House will impeach the president next week, perhaps Wednesday, also on the inevitable party-line vote. The scarlet ... Read More
White House

The Costs of Trivializing Impeachment

Resorting to a vague “abuse of power” theory, the House Judiciary Committee Friday morning referred two articles of impeachment to the full House on the inevitable party-line vote. The full House will impeach the president next week, perhaps Wednesday, also on the inevitable party-line vote. The scarlet ... Read More
World

The U.K. Elections Were the Real Second Referendum

In the end, it wasn’t close at all. Jeremy Corbyn’s Labour party met a fate to which it has been accustomed for most of the last half-century. Once again, the British roundly rejected socialism. Boris Johnson and his conservatives will form the next British government. This was no slight rejection. Labour ... Read More
World

The U.K. Elections Were the Real Second Referendum

In the end, it wasn’t close at all. Jeremy Corbyn’s Labour party met a fate to which it has been accustomed for most of the last half-century. Once again, the British roundly rejected socialism. Boris Johnson and his conservatives will form the next British government. This was no slight rejection. Labour ... Read More