UPDATE, January 19, 11:08 a.m.: The GOP-held U.S. House of Representatives on Friday morning passed the so-called Born-Alive Abortion Survivors Protection Act.
Republicans in the U.S. House of Representatives are preparing to ram through another anti-abortion measure based on junk science and scare tactics.
The “Born-Alive Abortion Survivors Protection Act” is based on the myth that infants are “born alive” after abortions—and that abortion providers routinely murder them. The GOP-held House vote is timed around Friday’s March for Life and next week’s 45th anniversary of the Roe v. Wade Supreme Court decision legalizing abortion care.
“The point of this kind of legislation—it’s for shock value,” said Diane Horvath-Cosper, an OB-GYN, abortion provider, and fellow with Physicians for Reproductive Health. “It’s not medically accurate, [and] it’s not founded in any kind of actual science.”
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The Born-Alive Infants Protection Act of 2002 already defines an infant “born alive” following “natural or induced labor, cesarean section, or induced abortion” as a person with corresponding legal protections, according to President George W. Bush’s remarks upon signing it. The “Born-Alive” bill, written in the mold of Americans United for Life copycat legislation, would add criminal penalties for abortion providers and clinicians in the form of fines and up to five years in prison, along with potential criminal prosecution for murder. Patients who undergo an abortion could separately file a civil lawsuit.
The consequences could be dire, according to Amy Friedrich-Karnik, senior federal policy adviser for the Center for Reproductive Rights (CRR).
“What’s interesting to know about this bill is that it describes something that is relatively vague,” Friedrich-Karnik said in an interview. “It requires providers to act in a certain way without any specificity, but then it couples that with criminal penalties for failing to comply.”
Friedrich-Karnik described a “chilling effect” on abortion providers.
“When you’re telling them they need to provide [abortions] a certain way but not telling them how, it’s going to scare them away from providing care at all,” she said. At the same time, she added, the bill “grossly interferes in medical practice” by bringing politicians into the exam room.
There are no indications that the U.S. Senate will follow the House’s vote anytime soon, if at all. The bill would almost certainly fail to meet the upper chamber’s 60-vote threshold to advance most controversial legislation.
But there’s more at stake than an individual legislative victory or defeat. Anti-choice advocates, for example, have urged Senate Majority Leader Mitch McConnell (R-KY) to bring up a similarly doomed, House-passed 20-week abortion ban to test vulnerable Senate Democrats from red states ahead of the midterm elections. Their goal: Strengthen Republicans’ Senate majority and end the legislative firewall between a nationwide prohibition on legal abortion care at 20 weeks—and eventually, on legal abortion care entirely.
Their strategy isn’t infallible. McConnell told reporters gathered at the White House in October 2016 that the 20-week ban is “supported by virtually all of my members, and we expect to have a vote on it at some point,” but he still hasn’t scheduled it. And Rep. Steve King (R-IA), a prominent white nationalist, recently told LifeSiteNews that there’s a “turf battle” brewing among anti-choice groups. King resents that House Majority Whip Kevin McCarthy (R-CA) and the prominent anti-choice group National Right to Life are prioritizing the 20-week ban and the “Born-Alive” bill over his total abortion ban.
Junk Science Defines Bill—and Defies Reality
Kristyn Brandi’s first thought as she read the bill was that “clearly, this person [who wrote it] has no idea of what an abortion procedure actually is.”
Most abortions occur within the first trimester—“nowhere near the viability this bill describes,” Brandi, a California-based family planning doctor and abortion provider, said in a phone interview.
Indeed, 89 percent of all abortions occur within the first trimester, according to a 2017 fact sheet from the Guttmacher Institute, a research and policy organization that supports reproductive rights. Abortions are increasingly shifting earlier within the first trimester; per the same data, 66 percent occur in the first eight weeks.
The majority of second-trimester abortions similarly take place prior to viability, which differs for each pregnancy, but generally occurs around 24 weeks. And for second-trimester abortions that are “even close to viability,” Brandi said abortion care providers typically inject a patient’s stomach with medication prior to the procedure, typically a dilation and evacuation, or a D&E, to induce fetal demise and avoid a live birth.
“Usually, patients will not proceed with the abortion unless we’ve confirmed that fetal demise has happened,” Brandi said. “So really, this is not happening if you’re providing safe, legal care.”
Republicans, then, are trying to punish providers for a problem that doesn’t exist.
“It just shows how much they are not familiar with what’s actually happening in abortion care,” Brandi said.
CRR’s Friedrich-Karnik agreed.
“First and foremost, it is not about legislating to fix a problem,” she told Rewire. “And this timing makes clear that it’s all about anti-choice leaders giving something to their base on the anniversary of Roe. What this bill really does is stigmatize health-care providers and shame women who are seeking safe, legal abortion care.”
Scare Tactics Endanger Health
Until recently, the “Born-Alive” bill was most closely associated with Rep. Trent Franks (R-AZ), a proponent of racially biased anti-abortion myths and the lead sponsor of the 20-week abortion ban that actually prohibits abortion at 22 weeks’ gestation. Franks has long mischaracterized and conflated the medical realities of abortion with convicted rogue abortion provider Kermit Gosnell’s crimes.
Franks and Sasse again offered up the measures at the start of the 115th Congress in January 2017. By December, Franks resigned from the House following the sexual harassment revelation that he had asked female staffers to bear his child via surrogacy. Rep. Marsha Blackburn (R-TN) subsequently reintroduced the bill under a new bill number, HR 4712. Blackburn is perhaps best known for collaborating with anti-choice extremists in an inflammatory, taxpayer-funded crusade against Planned Parenthood. She’s lifting much of the same rhetoric in her campaign for the Senate.
Rep. Diana DeGette (D-CO), co-chair of the House Pro-Choice Caucus, described the bill’s resurgence as “alarming.”
“The bill bullies abortion providers, imposing draconian and unnecessary standards of care enforceable with criminal penalties,” DeGette told Rewire via email. “It’s no wonder most doctors’ advocacy groups oppose it; if this legislation becomes law, it will irreparably damage the critically important relationship between them and their patients.”
The head of the American College of Obstetricians and Gynecologists said the “Born-Alive” bill “should never become law.”
“HR 4712 is a disservice to America’s women and gross legislative interference into the practice of medicine, putting politicians between women and their trusted doctors,” Executive Vice President and CEO Dr. Hal Lawrence said in an email. “This bill and others like it are part of a larger attempt to deny women access to safe, legal, evidence-based abortion care. We call on every member of the United States House of Representatives to stand with women and stand up for safe medical care.”
Ultimately, the bill and its anti-abortion scare tactics could endanger patient health.
“It’s just trying to frighten people that abortion doctors are doing things that are unethical when in actuality we’re providing safe and legal care. And it’s trying to push doctors to not provide care,” Brandi, the family planning doctor and abortion provider, told Rewire. “And with less and less doctors being able to provide these services, eventually no one will be able to provide this care for women and then we’re going back to before Roe v. Wade when people were dying from abortion[s].”