A Republican-backed bill to protect “abortion survivors” just failed. It still matters.
The Born-Alive Abortion Survivors Protection Act may be part of a larger strategy for 2020.
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The Senate on Monday voted against a bill
that would have put in place requirements for the care of infants born
after failed abortions — and could have sent doctors to prison if they
failed to comply.
The Born-Alive Abortion Survivors Protection Act,
sponsored by Sen. Ben Sasse (R-NE), fell short of the 60 votes it needed
to move forward, with 53 senators voting in support of the measure and
44 voting against. But it’s part of a bigger debate about abortions very
late in pregnancy that could intensify in the runup to the 2020
election.
Sasse said the legislation was necessary to protect
newborn babies — “it’s cowardly for a politician to say they’ll fight
for the little guy but only if the little guy isn’t an actual
seven-pound baby who’s fighting for life,” he said in a statement earlier this month. The senator has not responded to Vox’s request for comment.
But reproductive rights and physicians’ groups said the
bill could criminalize doctors and was unnecessary since laws already
exist to protect an infant in the extremely unlikely scenario of a birth
after an abortion attempt. “The bill maligns and vilifies providers and
patients to push a false narrative about abortion later in pregnancy,”
Dr. Kristyn Brandi, a board member of Physicians for Reproductive
Health, told Vox in an email.
By putting up the bill despite its poor chances of
passing, Sasse and Senate Majority Leader Mitch McConnell were focusing
attention on an aspect of the abortion debate they may see as a wedge
issue for some voters: abortions very late in pregnancy.
The issue came to the fore earlier this year when Virginia Delegate Kathy Tran said in a committee hearing
that a bill she was sponsoring would technically allow abortion when a
woman was showing signs of labor. She later said she had misspoken, but
video of the hearing went viral, and the controversy grew when Virginia
Gov. Ralph Northam made confusing comments in support of the bill that
some took as an endorsement of infanticide. President Donald Trump
mentioned the controversy in his State of the Union speech, calling for tighter federal restrictions on abortion.
While Trump did not make abortion a top issue on the campaign trail in 2016, he did claim that Hillary Clinton
was “saying in the ninth month you can take the baby and rip the baby
out of the womb of the mother.” Now, inspired in part by the Virginia
bill, Trump and other Republicans are bringing back the issue of very
late abortions, perhaps in the hope of energizing their base in advance
of 2020.
The Born-Alive Abortion Survivors Protection Act is coming up now in part because of controversy over a Virginia abortion bill
The Born-Alive Abortion Survivors Protection Act
would have required doctors to provide the same care for a baby born
alive after a failed attempt at abortion as they would for any child of
the same gestational age. After providing appropriate care, they would
be required to ensure that the baby “is immediately transported and
admitted to a hospital.”
Doctors who failed to comply with the requirements would face a fine and up to five years in prison.
On Monday, all Republicans present voted in favor of a procedural motion on the bill, according to the Washington Post.
They were joined by three Democrats — Bob Casey (PA), Joe Manchin (WV),
and Doug Jones (AL). All other Democrats present voted against the
motion, enough to block consideration of the bill.
Sasse had previously introduced the bill in 2017, but it did not make it out of committee. Marsha Blackburn, then a House member, sponsored a similar bill in 2017, which passed the House but not the Senate.
In a speech introducing this year’s bill, Sasse
specifically referenced Northam’s comments about the Virginia abortion
bill, which would have expanded the circumstances under which someone
could get an abortion in the third trimester.
Asked to explain Tran’s comments about the possibility of
abortions during labor, Northam said, “If a mother is in labor, I can
tell you exactly what would happen. 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.”
A spokesperson for Northam told Vox that the governor was
“absolutely not” referring to infanticide, but that “the governor’s
comments focused on the tragic and extremely rare case in which a woman
with a nonviable pregnancy or severe fetal abnormalities went into
labor.”
But Sasse said in a speech
to the Senate on February 4 that Northam had “endorsed infanticide.”
The governor “tarnished the American idea of equality under law, he
betrayed the universal truth of human dignity, and he turned the
stomachs of civilized people not just in this country but in every
country on earth,” Sasse said.
“The Born-Alive Abortion Survivors Protection Act
prohibits exactly the kind of infanticide that Gov. Northam was
endorsing,” he added. “That’s what the legislation is about.”
Senate Democrats, reproductive rights groups, and groups
representing doctors disagreed, calling the legislation unnecessary and
potentially damaging. “This legislation is based on lies and a
misinformation campaign, aimed at shaming women and criminalizing
doctors for a practice that doesn’t exist in medicine or reality,” said
Dr. Leana Wen, the president of Planned Parenthood Federation of
America, in a statement to Vox.
Brandi,
of Physicians for Reproductive Health, said she had never heard of a
case of a child born after a failed abortion attempt. “This is a part of
the false narrative around this bill and abortion later in pregnancy,”
she said.
Even if a child were to be born after an abortion
attempt, she said, laws already exist to protect the baby. In 2002,
Congress passed the Born-Alive Infants Protection Act,
which guaranteed to infants born at any stage of development full legal
rights. That bill, which passed with bipartisan support, did not
include criminal penalties for doctors and did not impose specific
requirements on medical care.
Sasse’s bill, Brandi said, “is a stark departure from the
2002 law as it singles out abortion and applies strict new requirements
on abortion providers only, with the intent to malign and threaten
abortion providers.”
Brandi and others were concerned that the threat of fines
and imprisonment could hamper providers’ ability to practice. Some
critics of the bill believed its language — especially the requirement
that doctors “exercise the same degree of professional skill, care, and
diligence” in caring for a child born after a failed abortion as they
would in caring for any other child — was so vague that it could leave
doctors vulnerable to lawsuits.
Sen. Patty Murray (D-WA) called the bill “anti-doctor,
anti-woman, and anti-family,” in remarks released to media, and said
that “its proponents claim it would make something illegal that is
already illegal.”
When the earlier version of the bill was proposed in
2017, the head of the American College of Obstetricians and
Gynecologists called it a “gross legislative interference into the
practice of medicine, putting politicians between women and their
trusted doctors,” according to Rewire News.
Abortion opponents, meanwhile, praised the bill. “If
Democrats are truly against infanticide, every single Democratic senator
should support this bill,” said Marjorie Dannenfelser, president of the
anti-abortion group Susan B. Anthony List, in a statement.
The bill may be part of a larger strategy
Earlier this month, Majority Leader McConnell announced
that a vote on the bill, which he was co-sponsoring, would be held
Monday. The measure had little chance of success in the closely divided
Senate, but McConnell may have brought it to a vote in part to get
Democrats on record opposing it.
“The American people deserve to know whether their senators stand with vulnerable children struggling for life,” McConnell wrote in a recent op-ed in the Courier-Journal, a Kentucky newspaper.
“Are we really supposed to think that it’s normal that
there are now two sides debating whether newborn, living babies deserve
medical attention?” he asked in a speech to the Senate on Monday
afternoon. “I would urge my colleagues to listen to the voices of the
American people.”
The bill may also be part of a larger strategy by
Republicans of focusing on very late abortions in order to drum up
support among social conservatives. Trump referenced the issue in his
State of the Union speech, saying, “we had the case of the governor of
Virginia where he basically stated he would execute a baby after birth.”
He brought it up again a few weeks later at a rally in El Paso,
Texas, saying that Northam “stated that he would even allow a newborn
baby to come out into the world, and wrap the baby, and make the baby
comfortable, and then talk to the mother and talk to the father and then
execute the baby.”
Trump and other Republicans may see abortions late in pregnancy as a wedge issue. A majority of Americans
think abortion should be legal in all or most cases, but some polls
have found that abortions later in pregnancy are more controversial. In a
2018 Gallup poll, just 13 percent of Americans said abortion should be generally legal in the third trimester.
Abortions in the third trimester are very rare — just 1.4 percent of all abortions
take place at 21 weeks or beyond, according to Planned Parenthood. The
situation described in the Virginia committee hearing simply doesn’t
come up, Brandi said — “patients do not request abortion when they are
in labor and doctors do not provide it.” But Northam’s comments
gave Trump and other Republicans an opening to draw attention to very
late abortion procedures with emotionally charged language about babies
being executed.
Part of their goal may be to invigorate social
conservatives, a reliably Republican voting bloc. Republicans lost
ground in Congress in 2018, and Trump’s approval ratings are at historic lows.
But he has delivered for abortion opponents by appointing conservative
Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court, as well
as many conservatives to lower federal courts. With a potential challenge to Roe v. Wade
on the horizon, Republicans may see a benefit to reminding voters of
their party’s anti-abortion bona fides, even if their efforts don’t
change any laws in the short term.
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