By Jennifer Popik, J.D., Director of Federal Legislation
This coming Tuesday, February 11th, the Senate Committee on the Judiciary has scheduled a hearing entitled “The Infant Patient: Ensuring Appropriate Medical Care for Children Born Alive.”
In the wake of growing evidence that babies who survive abortions are deliberately neglected and left to die, the Senate hearing will discuss the need to pass the Born-Alive Abortion Survivors Act (S.311), sponsored by Sen. Ben Sasse (R-Neb).
In 2002 Congress enacted the “Born-Alive Infants Protection Act.” The legislation said that babies who are born alive, whether before or after “viability,” are recognized as full legal persons for all federal law purposes.
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.”
The Born-Alive Infants Protection Act became law without even one single dissenting vote. Not one.
Unfortunately, in the time between 2002 and 2019, the landscape has entirely changed.
Evidences have multiplied that despite the clear language of the statute, some abortion providers do not regard babies born alive during abortions as persons, and that they do not provide them with the types of care that would be provided to premature infants who are born spontaneously.
Even with very incomplete information, we know that there are numerous instances of babies born alive during abortions. They are not “rare.”
The Center for Disease Control (CDC) estimates that between 2003 and 2014, at least 143 babies died after being born alive during abortions. 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 any abortion figures to the CDC since 1998.
Only five states (Arizona, Florida, Michigan, Minnesota, and Oklahoma) independently report cases of infants born alive. Even in that small sample, at least 25 children were born alive during attempted abortions in 2017 alone.
The attitude that babies born alive during an attempted abortion do not merit equal medical treatment is manifested in recent legislation, proposed and/or passed. For example, on January 22, 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 proposed in the Commonwealth. In a radio interview during the Virginia legislature’s debate over State Del. Kathy Trans’ “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, although pro-abortion Democrats controlled the U.S. House, Republicans sprang into action by proposing the Born-Alive Abortion Survivors Protection Act.
House Republicans, led by minority whip Rep. Steve Scalise (R-La.), have been attempting to force a vote on the Born-Alive Abortion Survivors Protection Act (H.R. 962) sponsored by Rep. Ann Wagner (R-Mo.).
Democrats have blocked a vote, even denying Republicans the opportunity to hold a hearing on the legislation. In September 2019, Republicans instead held a minority hearing, with over 43 members of Congress in attendance as well as a standing-room only audience.
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. But Democrats do not want to have to vote and no committees have taken up the bill.
In addition, 80 pro-life members of the House have taken to the floor, seeking “unanimous consent” to take up the bill, to no avail. As a consequence, last April, a “discharge petition” was presented.
If a majority of House members add their names to the petition, the bill will bypass committees run by pro-abortion Democrats and be brought to the floor for a vote. To date, every Republican and three Democrats have signed the petition. The discharge petition currently needs 14 more signatures. You can find the signers here.
In late February of 2019, the U.S. Senate considered the enhanced protective measure. Fifty-three senators voted to take up the Born-Alive Abortion Survivors Protection Act. However 60 votes were required to “invoke cloture” (overcome a filibuster), so the bill did not advance. The bill was supported by 50 Republicans and three Democrats.
Tuesday’s Senate hearing in an attempt to persuade more Democrats to join their effort.
A poll taken almost exactly one year ago by McLaughlin & Associates found that 77% of respondents support legislation that “would ensure that a baby who survives a failed abortion would be given the same medical treatment as any other baby born prematurely at the same age.”
Melissa Ohden, who survived a failed 1977 saline infusion abortion, has testified before numerous House committees. According to her organization, “The Abortion Survivors Network,” from 2012-2018, they have, “…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.”