Arizona Republicans are backing a bill to ensure abortion providers employ life-saving measures in the rare instances in which an abortion produces a live birth.
The bill, introduced by state Sen. Steve Smith (R-Maricopa) directs doctors to check for “evidence of life,” including but not limited to “evidence of breathing, a heartbeat, umbilical cord pulsations, and definite movement of voluntary muscles.” The legislation requires the doctor and staff present during the procedure to certify under penalty of perjury “the aborted fetus or embryo was not delivered alive.”
Cases of abortion care producing a live birth are exceedingly rare. The U.S. Centers for Disease Control and Prevention estimated that “induced terminations” had likely resulted in 143 infant deaths nationally between 2003 and 2014.
Rewire in 2013 reported that 38 attorneys general said they had never had reason to prosecute a doctor for delivering and killing a fetus. Anti-choice lawmakers and activists nevertheless continue to push the myth.
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Smith told Rewire that existing state and federal laws requiring doctors to extend life-saving care are inadequate.`
“All we’re saying is if this is happening, we want to make sure that the baby is taken care of,” Smith, a talent agency director, said in a phone interview Monday. “We want the Department of Health Services to adopt some basic operating procedures for the minimum standards of care that these places will have to follow.”
Smith’s bill cites two news accounts of abortions that resulted in a live birth. One of the accounts resulted in no criminal charges against the abortion provider. Smith said he didn’t know if charges had been brought against the abortion provider in the second case. A spokesperson for the Arizona attorney general, who prosecuted the pregnant person in that case for defrauding Medicaid, did not respond to Rewire by deadline.
Arizona already licenses abortion clinics and imposes medically unnecessary laws that target abortion providers, such as mandating the facilities be outfitted like surgical centers and requiring doctors to have admitting privileges or a similar arrangement at a nearby hospital.
Reproductive rights advocates told Rewire the legislation imposes an undue and unnecessary burden on physicians and could bury providers in red tape that might force some clinics to close.
When Rewire provided Dr. Pratima Gupta, an OB-GYN and abortion provider, with the four criteria to determine “life,” she said via email that it would be difficult to differentiate between voluntary and involuntary muscle movement, “especially in the setting where a mother may have received some narcotic medications that would have been passed to the fetus resulting in withdrawal or involuntary movements.”
Dr. David A. Klein, an OB-GYN at the University of California-San Francisco, said it’s unclear what the law might require of providers.
“Does the bill imply that every clinic should have intensive care unit-level capacity in the unlikely event of a live birth during an abortion, or just that 9-1-1 must be called to transfer the neonate to another facility?” he said.
“Increasing the capability of clinics to include intensive care, that would likely require an incredible burden on clinics and would likely force their closure—an issue addressed in the recent Whole Woman’s Health v. Hellerstedt case,” he added.
In that case, the U.S. Supreme Court found that two provisions of an omnibus Texas anti-abortion law constituted an undue burden and were unconstitutional.
Sixteen state senators and 20 state representatives are backing the bill, which is supported by the Center for Arizona Policy, the influential anti-choice group and an affiliate of the Family Research Council.
The bill, introduced January 31, has been forwarded to the Senate Rules Committee and the Senate Health and Human Services Committee.
The Arizona governor’s office and state legislature are controlled by Republicans. The anti-choice group Americans United for Life gave the state an “All Star” rating in 2017.