The Arizona Senate on Wednesday passed legislation requiring abortion providers to be trained and equipped to save preterm infants in the rare instances in which a later abortion procedure produces a live birth.
The measure is likely to become law, as Republicans control both chambers and the governor’s office. The state’s powerful anti-choice lobby, Center for Arizona Policy—an affiliate of the Family Research Council— s backing the bill.
SB 1367 targets hospitals and clinics that perform abortions at 20 weeks’ gestation or beyond, and is essentially a new form of targeted regulation of abortion providers, or TRAP, laws. TRAP provisions in Texas, for example, forced abortion clinics to be outfitted like mini-hospitals. Some of the restrictions, which drove many clinics out of business, were found unconstitutional last year by the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt.
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The bill requires providers to be outfitted with a minimum level of neonatal equipment and to perform life-saving measures on a fetus delivered alive. At least one person trained in neonatology must be present during all terminations performed at 20 weeks’ gestation and beyond.
“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,” Dr. David A. Klein, an OB-GYN at the University of California, San Francisco, told Rewire in a phone interview.
The bill encompasses preterm deliveries, which is why Dr. Julie Kwatra, legislative chair of the Arizona chapter of the American Congress of Obstetricians and Gynecologists, said it has drawn the opposition of the American Medical Association and other medical groups.
“In Arizona, the vast majority of terminations are provided before 20 weeks, and the ones after 20 weeks are performed overwhelmingly in cases of fetal anomalies,” Kwatra told Rewire by phone. “To force a neonatologist to resuscitate a baby that has a zero chance of survival … this law is going to force doctors to practice against the standard of care,” which is to provide comfort care.
“What [the bill] really does is put doctors at terrible liability for doing their job,” Kwatra said. “We are doing all these invasive procedures and depriving the parents of time to grieve—for nothing.”
Dr. Peter Stevenson, an Arizonan neonatologist, told state senators in a letter, “It is standard of care in the state of Arizona as well as the entire United States to provide comfort measures only for fetuses delivered at prior to 22 weeks gestation.”
He said fetuses born at 20 or 21 weeks have no chance of survival. Those born at 22 weeks have a 7 to 11 percent chance of survival, and those at 23 weeks have a 20 to 40 percent chance to survive.
Critics of the measure argued it leaves parents with no way to grieve the loss of a pregnancy by perhaps holding the preterm infant.
“This is a really hard bill to talk about,” said Senate Minority Leader Katie Hobbs (D-Phoenix), who spoke of her own miscarriage, according to the Arizona Republic. “Let the mother hold the baby and grieve. When you know the infant will not survive, it is cruel and against medical ethics to administer that kind of resuscitative care that can actually harm the infant.”
The measure, authored by Sen. Steve Smith (R-Maricopa), a talent agency director, hews closely to copycat legislation created by the anti-choice group Americans United for Life. Both the copycat legislation and the Arizona measure require doctors to check for “evidence of life,” defined as evidence of breathing, heartbeat, umbilical cord pulsation, or definite movement of voluntary muscles.
The Arizona bill gives parents and maternal grandparents legal standing to sue providers.
At least three Arizona clinics offer terminations at and beyond 20 weeks gestation.
Smith told Rewire earlier this month that 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 said. “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.”
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.
Smith’s bill cites two news accounts of abortions that resulted in a live birth but do not appear to involve criminal wrongdoing. In one case, authorities transported a fetus, with no fetal heart tones, to a local hospital, where it was pronounced dead, as Rewire reported.
Cathi Herrod, who heads the anti-choice group Center for Arizona Policy, maintained the legislation was written to apply to all births.
She told the Arizona Republic, “The baby might live. Neither doctors nor parents can play God.”