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Ian Hepler

Ben Henderson

CAS 138T

3 April 2019

Botched Abortion Survivors: Still the Right to Choose?

Contention over political issues from gun rights to capital punishment play a

decent role in our nation’s political conversations, but there is perhaps no topic so

acrimoniously debated as abortion. Arguments from the deeply entrenched pro-choice

and pro-life camps about when a fetus becomes a viable life safe from abortion form the

basis for these discussions. Some believe in life at conception, and others think that

abortion is acceptable until around twenty weeks (the legal cutoff for abortion in many

states, barring for instances of rape or danger to the mother). Others still believe that

when life begins lies in between these points. But when is the line undeniably clear?

Birth? One could reasonably make that assumption. However, some recent developments

have proven this not entirely true. In some instances, there have been babies who have

survived abortion attempts but were not given medical care. More prevalent has been the

accepted notion that these abortion survivors do not unconditionally deserve medical

care. These practices should be considered unacceptable, despite one’s political

persuasions regarding abortion. Babies that are born, regardless of their state of being or

health, should be given access to enough medical care that helps them survive.

These discussions recently came to light following the proposal of legislation in

the state of Virginia with respect to late-term abortion. A Democratic delegate in the
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Virginia House of Delegates, Kathy Tran, was discussing a bill that sought to reduce

restrictions for women seeking an abortion in Virginia (VA, General Assembly, House,

“H.B. 2491”). Simply put, this bill would make lax the requirements for a woman to get

an abortion, gearing it more towards the doctor’s potentially subjective judgment. When

questioned by a Republican colleague, Tran stated that a dilating woman, ready to give

birth, could have an abortion if a doctor believed it would impair her mental or physical

health (Antonio Olivo). In essence, this bill seemed to justify that mid-birth abortion was

legal if a doctor felt a woman’s health was at stake. A video recording depicting this

conversation went viral, sparking much controversy around the United States about the

occurrence of abortion as late as during birth.

Virginia Governor Ralph Northam, a supporter of the bill, attempted to clarify the

comments. He stated that an unborn child considered to have “severe deformities...would

be delivered...kept comfortable...resuscitated if that's what the mother and the family

desired. And then a discussion would ensue between the physicians and the mother”

(Devan Cole). Northam, too, faced significant backlash. His comments invited a lot of

questions: Would the child be given any medical care? Does the mother have a say in

what happens? Would the child be left to die or be euthanized? Based on his comments, a

child who was born with a deformity would likely not be given treatment unless the

mother desired as such. Many perceived this to mean that Northam was supporting

infanticide, such as Republican Senator from Florida Marco Rubio, who wrote a Tweet

saying he never expected to see “government officials who openly support legal

infanticide” (@marcorubio). Rubio’s comments reflected the opinions of many pro-life

crowds around the country.

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Both the bill and comments made by Tran and Northam led to discussions about

the shifting attitudes towards mid- and post-birth abortion. These forms of abortion may

also be referred to as infanticide, or the killing of infants. While Tran's bill and these

comments were intended to deal with real-life situations, their implications were

ultimately hypothetical. In other words, the bill and subsequent comments only led to

dialogue and not action. Though Tran’s bill allowed more room for the occurrence of

infanticide, nothing came to fruition because it was not passed by Virginia’s legislature.

There are, however, instances where infanticide has been a harsh reality. In 2011,

former abortionist Kermit Gosnell was tried and convicted “on three of four charges of

murder of babies born in his clinic” (Sarah Kliff). According to a Washington Post

article, Gosnell would deliver the babies and then proceed to “[stick] scissors into the

back of the baby’s neck and [cut] the spinal cord” (Kliff). What is worse: Gosnell

performed these procedures for around thirty years before he was even investigated. He

was tried and found guilty on three counts of child murder, but that does not mean that

there were not more children affected by such practices. Not every state reports these

numbers or abortion procedures (Michelle Bandur), so it can be difficult to determine the

statistic’s validity. Regardless, even three accounts of induced infant death are too

numerous.

According to a report published by the Centers for Disease Control, around one

hundred forty-three deaths of born alive infants have occurred due to “induced

termination” from 2003 to 2014 (Mortality Records with Mention of International

Classification of Diseases). In other words, nearly one hundred fifty children died after

surviving an abortion attempt and being born displaying signs of life. The Centers for
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Disease Control also noted that this figure may underestimate the total number of

abortion survivors or deaths (Mortality Records). This could be because, like in Gosnell’s

case, oversight for the facilities was lax. This lack of regulation allowed Gosnell’s actions

to go unnoticed and unrecorded for three decades, so it is fair to assume that the total

number of reported deaths is not comprehensive of the accurate occurrences. The

attitudes reflected by Tran and Northam and the carrying out of infanticide by Gosnell

collectively work to shape an issue in our modern world: the rights of prenatal children

who were unwanted and subject to abortion. The question remains, where does one draw

the line requiring care if an abortion fails?

There is one policy that has been introduced in Congress that seeks to address

such a question. The bill, entitled the “Born-Alive Abortion Survivors Protection Act”

and drafted by Republican Senator Ben Sasse, is one that has the capability to ensure the

health of any baby born following a botched abortion. The bill explicitly reads that “if an

abortion results in the live birth of an infant, the infant is a legal person for all purposes”

and “any infant born alive after an abortion or within a hospital, clinic, or other facility

has the same claim to the protection of the law that would arise for any newborn” (U.S.,

Congress, Senate, “S.311”). This bill is often miscast as one that seeks to attack abortion

rights, which is not the case. Instead, it focuses on babies already born. Senator Sasse

himself made a point of saying “As pro-life as I am, this issue is not about abortion. It's

about babies that have survived abortion" (Bandur). This bill should be passed in

Congress because it ensures that any child that has left the womb of a woman is afforded

the right to life, no matter if it was due to natural birth or an unsuccessful abortion.
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The “Born-Alive Abortion Survivors Protection Act” not only provides a net of

protection for the infants born alive, it clarifies their rights, in addition to expanding the

rights of their mothers. The bill specifically mandates that any child is granted legal

status as a person and so requires medical attention that would be given to anyone else

that required such attention (U.S., Congress, Senate, “S.311”). The implication is that

doctors are compelled to act and provide the necessary care for the infants. If an infant

has suffered injury due to a failed abortion attempt, then the medical professionals would

be required to rectify the injuries as efficiently as possible. If the child survives an

abortion but has formerly recognized health complications in addition to injuries

sustained from the abortion attempt, the medical professionals must account for both

phenomena. There are also subsections in the bill that cover reporting procedures for

medical staff. If any practices are disregarded throughout the process of providing care

for the abortion-surviving infant, then a report must be filed that details such allegations.

This stipulation ensures that an abortion provider cannot abuse its authority. The bill

expands the scope of control that the mother has in the context of the situation, as well. It

states that if a mother wants medical attention for her child, but no such care is provided,

the mother can take legal action against the medical professionals involved (U.S.,

Congress, Senate, “S.311”).

This bill has faced significant opposition. Foremost, the bill was unpopular in the

Senate where it was proposed. The vote to introduce debate on the bill failed, with all

present Republicans and three Democrats “for,” and the rest of the present Democrats

“against” (Mike DeBonis and Felicia Sonmez). While a simple majority was reached

with fifty-three for, the final vote failed to achieve the two-thirds majority required to
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warrant its introduction. In response to the bill, Democratic leader in the Senate Chuck

Schumer said it was “carefully crafted to target, intimidate, and shut down reproductive

health care providers” (Rachel del Guidice). This bill was similarly unpopular with other

legislators, news outlets, and the public. The president of Planned Parenthood, Leana

Wen, remarked that "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" (Kate Smith). Wen’s authority here is challenged by the statistics

from the Centers for Disease Control, however, which affirm that abortion survivors can

and do exist.

Perhaps the strongest argument used against the 2019 “Born-Alive Abortion

Survivors Protection Act” is the existence of an older law with a name similar to the 2019

bill: the “Born-Alive Infants Protection Act of 2002.” The 2002 act asserts a similar

position as the 2019 bill: that babies born alive, regardless of whether the birth was

natural or purposefully induced, have a legal status as a human being (U.S., Congress,

House, “H.R.2175”). Accordingly, many have commented, such as in a recent New York

Times editorial, that this bill is redundant because it repeats the contents of the 2002

Born-Alive law (Denise Grady), but this argument is too simplistic. The language of the

2019 legislation is more explicit than that of the 2002 law; it does more than just establish

the personhood of a baby born alive. If passed, this new bill would require that medical

professionals provide active medical care for the babies that were born following a failed

abortion. This comes in opposition to the 2002 law, where there was perhaps an unwritten

assumption that infants born alive after an abortion would receive medical care because

they had a legal human status. However, in this older law, no such language mandated
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medical action, which would allow for some leeway in its interpretation. More

specifically, the 2019 Born-Alive bill concentrates on stopping passive abortion, in which

care is not given, opposed to active abortion, wherein active steps are taken to induce

termination of a fetus or infant, according to Sasse in an interview (Greg Corombos).

This bill does have its shortcomings. It is true that many failed abortions do result

in severe injuries beyond the control of the doctor (Mortality Records). Often, these

injuries cannot be repaired by medical care due to the size of the child or extent of the

injury. In these instances, “comfort care” will likely be given to the child, minimizing the

effects of their suffering (Grady). As a matter of fact, the aforementioned Centers for

Disease Control report noted that 97% of the born alive infant deaths were attributed to

complications with either the mother or child’s health (Mortality Records). While not all

of these were necessarily life-threatening, many assumedly were. However, this

legislation would preclude most chances of this passive infanticide, given its multi-

faceted implications, such as its reporting system and an incentive to provide care –

punitive measures against non-complying abortion providers.

The “Born-Alive Abortion Survivors Protection Act” is often misconstrued as one

that aims to undercut abortion rights. This, however, could not be further from its reality.

While the bill’s proponents and sponsors in the Senate are indeed pro-life, the “Born-

Alive Abortion Survivors Protection Act” does not attempt to address the widespread

legality of abortions. What it does do is make illegal not helping a child in need of

medical attention following an abortion. For this reason, it is a bill that should receive bi-

partisan support. It does nothing to take women’s rights away, a widespread perception of

the bill. In an email to Vox, a board member of the Physicians for Reproductive Health
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said this new bill “maligns and vilifies providers and patients to push a false narrative

about abortion later in pregnancy” (Anna North). This is not accurate. Partisan politics

play a large role in characterizing this bill and discussions about it. As Atlantic writer

Michael Wear puts it, this proposed legislation “does not directly address women’s

access to abortion, but instead what happens after an abortion” (Michael Wear).

Alternatively stated, this bill was politicized even when its intention was not to be so.

Including full context and accurate details are important when discussing this bill and

will also contribute to its overall appeal.

Perhaps the best reason to adopt this bill as a law is because it would be relatively

simple to implement. If legislators understood the specifics of the bill and the positivity

of its implications, it could easily be passed in Congress. It could be difficult to pass in

the Democratic-controlled House, but if sufficient explanation was given, perhaps some

politicians could be swayed into supporting it. Also, it would cost nothing to implement.

This bill would simply be adopted into the code of law and not require any additional

government funding to implement. Finally, and perhaps most poignant in discussing the

bill, is the fact that it builds from the 2002 Born-Alive law. This Born-Alive policy

proposal is not radical; instead, it clarifies infant rights that were less explicitly covered

in the old law. It creates a clear medical line as to when a baby born alive during an

abortion requires care. The bill will help create more clarity when it comes to tackling

issues intertwined in post-birth abortion situations. This proposition, if turned into a law,

will affirm the natural rights of those that need protection the most and the mothers of

those children, as well as establish a more ethical process of dealing with tragic, botched

abortions.
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Shrouded by controversy, the 2019 “Born-Alive Abortion Survivors Protection

Act” is a policy that would have many positive implications. It would not only stipulate

that infants surviving abortions would require care, it would penalize (within reason)

doctors that fail to do so, give mothers legal rights, and institute a system of reporting for

infractions. Children are the future of the world; we must protect them at all costs.

Sometimes treatment is futile, but other times it is not even considered, which should be

criminal in itself. If the United States can adopt this straightforward, helpful bill with

support across party lines, we can be sure to never see another case like Kermit Gosnell’s

again.
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Works Cited

Bandur, Michelle. “Bellevue Abortion Doctor, Senator Ben Sasse at Odds over ‘Born

Alive’ Bill.” KETV Omaha, Hearst Television Inc., 26 Feb. 2019,

www.ketv.com/article/senator-ben-sasse-s-born-alive-bill-failed-in-

washington/26525597.

Cole, Devan. “Virginia Governor Faces Backlash over Comments Supporting Late-Term

Abortion Bill.” CNN, Turner Broadcasting System, Inc., 31 Jan. 2019,

www.cnn.com/2019/01/31/politics/ralph-northam-third-trimester-

abortion/index.html.

Corombos, Greg. “Sasse Explains Why Dems Refuse to Ban Infanticide.” Radio America

Online News Bureau, Network Solutions, LLC, 13 Feb. 2019,

dateline.radioamerica.org/?p=19027

DeBonis, Mike, and Felicia Sonmez. “Senate Blocks Bill on Medical Care for Children

Born Alive after Attempted Abortion.” The Washington Post, WP Company LLC,

25 Feb. 2019, www.washingtonpost.com/politics/senate-blocks-bill-on-medical-

care-for-children-born-alive-after-attempted-abortion/2019/02/25/e5d3d4d8-

3924-11e9-a06c-3ec8ed509d15_story.html?utm_term=.1bfc4e5a633c.

del Guidice, Rachel. “Only 3 Democrat Senators Vote for Bill Protecting Babies Born

Alive After Abortion.” The Daily Signal, The Heritage Foundation, 26 Feb. 2019,

www.dailysignal.com/2019/02/25/only-3-democrat-senators-vote-for-bill-

protecting-babies-born-alive-after-abortion/.
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Grady, Denise. “'Executing Babies': Here Are the Facts Behind Trump's Misleading

Abortion Tweet.” The New York Times, The New York Times Company, 27 Feb.

2019, www.nytimes.com/2019/02/26/health/abortion-bill-trump.html.

Kliff, Sarah. “The Gosnell Case: Here's What You Need to Know.” The Washington

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what-you-need-to-know/?utm_term=.e29a25e7f3d2.

@marcorubio. “I never thought I would see the day America had government officials

who openly support legal infanticide.” Twitter, 30 Jan. 2019, 11:04 a.m.,

https://twitter.com/marcorubio/status/1090687336827011074?lang=en

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democratic-wave-that-changed-richmond/2019/01/31/d4f76ecc-2565-11e9-90cd-

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abortion-advocates-reignite-late-term-abortion-debate-2019-02-27/.

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bin/legp604.exe?191+sum+HB2491.

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