Politics & Policy

The Born-Alive Abortion Survivors Protection Act Is Back

Sen. Ben Sasse at the 2015 CPAC conference (Gage Skidmore)
Congressional Republicans hope to pass legislation protecting infants who survive abortion procedures.

On Tuesday, the Senate Judiciary Committee will hold a hearing on the Born-Alive Abortion Survivors Protection Act, which would require doctors to provide medical care to infants who survive attempted abortion procedures.

The bill was in the spotlight exactly one year ago, after Virginia governor Ralph Northam suggested that, at least in some circumstances, mothers and doctors should be able to deny medical care to newborns who were meant to have been aborted. Immediately after those comments, Senator Ben Sasse (R., Neb.), the lead sponsor of the born-alive bill, reintroduced his legislation.

“We’re not talking about some euphemism,” Sasse said at the time on the Senate floor. “We’re not talking about a clump of cells. We’re talking about a little baby girl who’s been born and is on a table in a hospital or a medical facility, and then a decision or a debate would be had about whether or not you could kill that little baby.”

Here is what the born-alive bill does:

• creates criminal penalties for doctors who allow a newborn to die because they failed to provide medical care after the infant survived an attempted abortion procedure

• mandates that a child born alive in an abortion clinic be transported to a hospital for further care

• requires health-care practitioners to report any violations of the law

• institutes penalties for intentionally killing a newborn, including fines and up to five years’ imprisonment

• grants 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

Even though none of these provisions restricts abortion, after several weeks of debate, 44 Democratic senators voted to block the legislation, using a number of inaccurate arguments and disregarding the bill’s text.

“The effort to force a vote on this new bill with no public hearing or consideration by the committees that oversee health issues or the Judiciary Committee is also notable,” said Senator Tim Kaine (D., Va.) in February 2019, in a statement announcing his vote against the bill. “A committee hearing is the normal way to make the case that legislation is needed. The desire to avoid a public hearing suggests that the sponsors are aware that the bill is unjustified and unnecessary.”

The hearing this Tuesday, with testimony from several witnesses both for and against the legislation, will feature many of the same arguments that surfaced last time the bill was considered.

Most Democrats who opposed the legislation last time around claimed that it is redundant or unnecessary. “We have laws against infanticide in this country,” Senator Patty Murray (D., Wash.) said last year on the Senate floor when she rejected Sasse’s request for unanimous consent to the legislation. “This is a gross misinterpretation of the actual language of the bill that is being asked to be considered, and therefore I object.”

But in fact, there is no existing federal law that requires doctors to provide medical care for infants who survive an abortion procedure. The Born-Alive Infants Protection Act (BAIPA) of 2002 established that the terms “person,” “human being,” “child,” and “individual” in federal law include every infant born alive, even after an abortion; it instituted no penalties for physicians who neglect to care for such infants.

As of 2014, only 26 states mandated care for infants born alive after an attempted abortion — and those state laws can, of course, be changed. The Reproductive Health Act enacted in New York last year, for example, explicitly repealed a statute that had extended all the protections of state laws to children born alive during an abortion.

Opponents of the born-alive bill have also argued that these sorts of cases never happen and that infants never survive attempted abortions. But they do. Reports from several states indicate that, while abortion survivors are rare, they do exist. Melissa Ohden and Gianna Jessen are two specific examples, and this recent ad showcases several more.

Or consider the gruesome case of former abortionist Kermit Gosnell, who 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. There is no federal law prohibiting that practice.

During the Senate debate over the born-alive legislation, a number of Democrats argued that the bill is “anti-abortion” and that it would place the government between doctors and their patients, preventing medical professionals from giving the best possible care.

“It makes no sense for Washington politicians who know nothing about these individual circumstances to say they know better than the doctors, patients, the family,” said Senate minority leader Chuck Schumer (D., N.Y.) at the time. “The bill is solely meant to intimidate doctors and restrict patients’ access to care and has nothing, nothing, nothing to do with protecting children.”

But the bill doesn’t specify any particular type of medical care at all, nor does it place any restrictions on when or whether an abortion may be performed. It requires only that doctors give “the same degree” of care to abortion survivors that “any other child born alive at the same gestational age” would receive if delivered at that stage of pregnancy.

Last year’s fight over the bill featured most media outlets parroting the claims of Democratic lawmakers, disregarding the bill’s text, and insisting that Republicans were “weaponizing abortion” to paint Democrats as radical. If Democrats continue to reject this commonsense legislation, it won’t take any work from Republicans to reveal how extreme they really are.

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