What’s Going on with the Born-Alive Abortion Survivors Protection Act

What’s Going on with the Born-Alive Abortion Survivors Protection Act February 28, 2019

Several days ago, I came upon an article shared by Kamala Harris. While the article was about Medicare for all, the comment that showed up in the preview below the post had nothing at all to do with Medicare. Instead, it was a rant about Kamala Harris wanting to slit newborn babies’ throats.

Say what?

At issue is the Born-Alive Abortion Survivors Protection Act, which was voted down by the Senate this past Monday. Let’s dive into what’s actually going on here, curtesy of Vox:

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.

If Sasse thinks it’s “cowardly” for a politician “to say they’ll fight for the little guy” but vote against this act, I’ve got news for him. I think it’s hypocritical for a politician to say they’re “pro-life” and then vote to allow insure companies to refuse to insure individuals with preexisting conditions.

But there’s another issue here. Sasse makes this bill about “an actual seven-pound baby who’s fighting for life.” Fetuses don’t typically eight seven pounds until the last week of gestation, if then. I didn’t weigh seven pounds when I was born. Mean birth weight is around seven and a half pounds.

What Sasse described does not happen.

High tech ultrasounds that identify fetal abnormalities are typically conducted around the 20th week of pregnancy. If a fetus is found to have a condition incompatible with life, one of two things happen: either the woman has an abortion, or she decides to finish the pregnancy. There would be no point in doing both—finishing the pregnancy and having an abortion. That doesn’t pass the common sense test.

As the Vox article continues:

[R]eproductive 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.

The problem is that we have lawmakers making laws about medical procedures, rather than having physicians who actually know how things work set the rules. The issue is not that Democrats want to murder newborn babies. The issue is that physicians are already required to provide medical assistance if a case like this were to occur—curtesy of a statute created by the bipartisan Born-Alive Infants Protection Act of 2002—making this act nothing but a publicity stunt designed to mislead the public into thinking there’s some huge, hideous baby-murdering problem loophole out there when there isn’t.

There’s a reason Sasse brought this bill when he did. He’s seizing a specific moment—widespread misinterpretation of comments made by Virginia Gov. Ralph Northam regarding a Virginia bill that would have rolled back restrictions on abortion, including those conducted late in a pregnancy.

See, it’s not just Republicans who aren’t physicians. Democrats aren’t either. It’s no wonder they sometimes make confusing statements that are then widely misinterpreted. But then, laypeople aren’t physicians either. In a legislative context, then, you have non-physicians asking the questions, non-physicians answering those questions, and non-physicians interpreting their answers. It’s a perfect storm.

As outlined in another Vox article earlier this month:

The [Virginia] bill began inspiring outcry among abortion opponents nationwide after its sponsor, Virginia Delegate Kathy Tran, said in a committee hearing on Monday that it would technically allow abortion until the point of birth, if a doctor agreed it was necessary.

Gov. Northam, a Democrat, was asked about the bill in a radio interview on Wednesday, and his response only added to the controversy. Appearing to discuss what would happen if a child was born after a failed attempt at abortion, he said, “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.”

Some took Northam’s comments as an endorsement of infanticide. “In just a few years pro-abortion zealots went from ‘safe, legal, and rare’ to ‘keep the newborns comfortable while the doctor debates infanticide,” said Sen. Ben Sasse (R-NE) in a statement on Wednesday.

A spokesperson for Gov. Northam told Vox his comments were “absolutely not” a reference to infanticide, and that they “focused on the tragic and extremely rare case in which a woman with a nonviable pregnancy or severe fetal abnormalities went into labor.”

First, let’s talk about Tran.

Tran’s bill would have allowed abortions to take place at any time during the third trimester if a pregnancy became a threat to a woman’s “mental or physical health.” Debate over the bill included this exchange:

“How late in the third trimester could a physician perform an abortion if he indicated that it would impair the mental health of the woman?” Majority Leader Todd Gilbert (R.) asked.

“Or physical health,” Tran said.

“Okay,” Gilbert replied. “I’m talking about the mental health.”

“I mean, through the third trimester,” Tran said. “The third trimester goes up to 40 weeks.”

“Okay, but to the end of the third trimester?” Gilbert asked.

“Yup, I don’t think we have a limit in the bill,” Tran said.

“Where it’s obvious that a woman is about to give birth, she has physical signs that she’s about to give birth, would that still be a point at which she could request an abortion if she was so certified?” Gilbert asked. “She’s dilating.”

Tran responded that is a decision between the woman and her doctor would have to make. Gilbert asked if her bill would allow an abortion right before the infant was born.

“My bill would allow that, yes,” Tran said.

That does not happen. 

Dr. Jen Gunter, an OB/GYN who blogs about women’s health, has written about this exhaustively. She once worked in a clinic where abortions were permitted through the end of pregnancy. The latest she ever saw an abortion performed was in the 32nd week of pregnancy—and that case involved a 12-year-old girl who was raped by her 17-year-old brother, and had to wait for an abortion until she could secure a court order.

Remember what I mentioned earlier about how it’s a bad idea to have lawmakers, rather than doctors, set guidelines for medical procedures? That scenario Gilbert invented, about a woman at the end of her third trimester, physically in labor, asking for an abortion? The issue isn’t just that that wouldn’t happen. It’s also that no doctor would perform an abortion in that circumstance. If a woman in labor is going through a medical emergency, doctors perform a C-section, not an abortion.

If there were evidence that women were walking into abortion clinics at 40 weeks pregnant and asking for abortions, and that doctors were performing these abortions, I would have some serious questions. For one thing, I would want to know why this was happening. Because that actually matters. Because honestly, if that were happening, it would be bizarre enough that there would have to be some explanation.

I was all for shutting down Kermit Gosnell‘s Philadelphia clinic, which preyed on low-income women, performing illicit abortions for low rates and leaving dead and mutilated women in his wake. If there is evidence of a problem, I will absolutely support laws designed to mitigate and prevent these problems. But here? Here, there is no evidence of a problem. There are only meddling lawmakers who don’t understand how procedures work, trying to gin up partisan controversy and create the appearance of a crisis.

Tran did her best to answer Gilbert’s comments, but she is also not a doctor. If a medical provider had been there to answer Gilbert’s questions—a doctor like Gunter, with experience in this area—Gilbert might have learned something, like that the scenarios he was dreaming up were absurd, or that a bill like Tran’s would help ensure that women in tragic circumstances have access to abortions later in pregnancy, without some of the unnecessary hoops that currently make an already difficult process that much more painful.

Next, let’s talk about Northam’s comments:

“[W]hen we talk about third-trimester abortions, these are done with the consent of, obviously, the mother, with the consent of the physicians, more than one physician by the way. And it’s done in cases where there may be severe deformities, there may be a fetus that’s non-viable. So in this particular example, 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.”

In their full context, I find Northam’s comments very clear, and not confusing at all. He’s answering Gilbert’s question about what would happen if a woman seeking abortion went into labor. He notes—as Gilbert does not—that abortion typically occurs late in pregnancy in cases where a fetus is non-viable. He then answers the question: if an abortion-interested woman went into labor, the non-viable fetus would be delivered, resuscitated if that’s what the parents want (we’re talking about cases where a fetus is incompatible with life), and made comfortable. The doctor and parents would then discuss the next steps.

Parents of infants with severe deformities have a lot of hard questions to answer. If the infant has no brain activity, they may decide to take him or her off life support. Other questions have to be answered as well—whether to intubate the baby, what level of care to provide. These are hard, hard questions, and while the medical profession should absolutely ensure that children born with severe deformities are treated with respect, many of these children have short life expectancies, and painful existences.

Northam wasn’t talking about a discussion about whether to slit the infant’s throat, as those facebook commenters on Kamala Harris’ facebook page insisted. He was talking about a discussion about what level of care to provide the infant. We have these same conversations about our elderly—whether to continue sometimes painful interventions, or to transfer a beloved elder to hospice care until the end.

But those on the Right weren’t interested in recognizing any of this complexity. They didn’t even want to read Northam’s full comments. They were more interested in claiming that Northam was promoting infanticide and scoring political points. They’re more interested in making abortion into a wedge issue than they are in ensuring that every person has access to affordable healthcare, food, and basic education.

Remember when the Republicans played chicken with funding for the State Child Health Insurance Program (SCHIP) last year? I do, because I got to watch friends start to panic over whether their children would have access to medical care, as the deadline when their state would run out of money loomed. So much for caring so very much about children’s ability to, you know, not die. 

So, there you have it. Democrats don’t want to slit babies’ throats; doctors, not lawmakers, should be the ones answering questions about abortion; and Republicans are simply trying to create a wedge issue in hopes that voters will overlook the fact that they played chicken with children’s healthcare; tried to take away protections for preexisting conditions; separated thousands of immigrant children from their families and put them in cages; and shut down the government for no reason for over a month.

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