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Protections for Infants Born Alive in Abortions- Existing Law and the Need For Enhanced Legislation
Jennifer Popik, J.D. | 08 August 2019
Over 15 years ago, Congress enacted the Born-Alive Infants Protection Act. The 2002 legislation said babies who were born alive, whether before or after “viability,” are recognized as full legal persons for the purpose of federal law. The law was enacted in response to troubling indications that some abortion providers and pro-abortion activists did not regard infants born alive during abortion procedures as legal persons – especially if the infants were deemed to be “pre-viable”.[i] The Born-Alive Infants Protection Act became law without even one single dissenting vote. Not one.
In the time between 2002 and 2019, and we see an entirely changed landscape.
In the years since the 2002 law was enacted, evidences have multiplied that some abortion providers, despite the statute, do not regard babies born alive during abortions as persons, and do not provide them with the types of care that would be provided to premature infants who are born spontaneously.[ii]
In January 2019, the New York legislature passed, and Gov. Andrew Cuomo (D) signed, the so-called "Reproductive Health Act." Among other provisions, the law repealed state-level protections for infants born alive during an attempted abortion. Previously, New York law stipulated that a second physician be present to care for a child 20 weeks or older born alive during an abortion.
In Virginia, Gov. Ralph Northam (D) waded into the debate over a New York-style measure in the Commonwealth. In a radio interview during the Virginia legislature's debate over the "repeal bill," Northam said an infant born alive during an attempted abortion wouldn't necessarily be entitled to immediate treatment other than being made "comfortable." His comments touched off a torrent of criticism.
In the wake of this controversy, the U.S. Senate considered the enhanced protective measure, the Born-Alive Abortion Survivors Protection Act (sponsored by Senator Ben Sasse (R-Ne.)) in late February of 2019. The legislation would enact an explicit requirement that a baby born alive during an abortion must be afforded “the same degree” of care that would apply “to any other child born alive at the same gestational age,” including transportation to a hospital. Fifty-three senators voted to take up the bill, but 60 votes were required, so the bill did not advance. The bill was supported by 50 Republicans and three Democrats.
Meanwhile in the U.S. House, Democrat-controlled leadership has continued to block vote requests on this legislation. Every day of session since the failed Senate vote, a member has gone to the floor asking for unanimous consent to merely consider the legislation and has been blocked. So far, 80 requests have been made.
Republican leadership have also employed a procedural tactic, called a discharge petition, to circumvent the Speaker when they oppose a measure. It allows an absolute majority of the House (218 lawmakers) to force a floor vote on a bill, even if pro-abortion leaders oppose the measure. So far, there are 201 signers.[iii]
Opponents tend to argue against this legislation using two main arguments. The first is that those pushing the Born-Alive legislation are seeking a solution without a problem. The other main argument is that this law would interfere with a doctor’s medical judgment.
As for the first argument, even with incomplete information, we know that there are numerous instances of babies born alive during abortions.
The Center for Disease Control estimates that between 2003 and 2014, at least 143 babies died after being born alive during abortions.[iv] The number is likely far higher due to the fact that the CDC relies on state health departments which vary in their thoroughness. Additionally, California, the nation’s most populous state, along with Maryland and New Hampshire have not reported figures to the CDC since 1998.
Only 5 states independently report cases of infants born alive (Arizona, Florida, Michigan, Minnesota, and Oklahoma), and even in that small sample, at least 25 children were born alive during attempted abortions in 2017.
Abortion survivor Melissa Ohden, survivor of a failed 1977 saline infusion abortion, has testified before numerous House committees. According to her organization, “The Abortion Survivors Network”, they have, from 2012-2018, “...had contact with 260 survivors of abortion or their friends or family who contacted us on their behalf. We know this is just the tip of the iceberg when it comes to survivors—many don’t ever share their stories with anyone, and, in fact, many probably don’t even know about their survival, as it’s kept a secret.”[v]
As for the second argument, that this will interfere with medical judgment, this is a far cry from reality.
This is no longer a case of a women’s right to decide whether or not to have an abortion, but only how to address treatment of a baby who has survived an abortion attempt. This legislation deals with a baby who has already been born.
As for health complications of either the mother or baby, according to the American Association of Pro-Life Obstetricians & Gynecologists, “With any serious maternal health problem, termination of pregnancy can be accomplished by inducing labor or performing a cesarean section, saving both mother and baby.”[vi]
Simply put, delivering the baby is the modern and medically sound approach if there are health complications with the mother in late pregnancy. Additionally, at this late stage, most late abortion methods require a much lengthier and more complicated process than inducing birth – with the abortion process taking as many as three to four days.
Despite the rhetoric against making changes to laws protecting babies who are born alive during abortions, two things are clear – even with very incomplete data, many babies are in fact born alive during abortion attempts, and also, the 2002 law has been shown to need improvement.
[i] For background see the House Judiciary Committee’s excellent 2001 report on the legislation: https://www.govinfo.gov/content/pkg/CRPT-107hrpt186/html/CRPT-107hrpt186.htm
p. 27 “Two nurses from the hospital's delivery ward, Jill Stanek and Allison Baker (who is no longer employed by the hospital), testified before the Subcommittee on the Constitution that physicians at Christ Hospital have performed numerous ``induced labor'' or ``live-birth'' abortions, a procedure in which physicians use drugs to induce premature labor and deliver unborn children, many of whom are sometimes still alive, and then simply allow those who are born alive to die.”
[ii] For one example, in 2013, Dr. Kermit Gosnell of Philadelphia was convicted under state law of multiple homicides of born-alive infants. However, such a prosecution and conviction is uncommon. In some jurisdictions, local authorities seem reluctant to investigate reports of infants born alive during abortions, or to bring appropriate indictments even in cases in which the publicly reported evidence of gross neglect or overt lethal acts seems strong.
Jennifer Popik, J.D., Director of the Robert Powell Center for Medical Ethics at the National Right to Life Committee