Law & the Courts

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New York’s Reproductive Health Act, for example, explicitly repealed section 4164 of the state’s public-health law, which had stated that children born alive during an abortion received all the protections of state law.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.

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