UPDATE, February 25, 2020, 4:50 p.m.: U.S. Senate Republicans on Tuesday didn’t get the 60 votes they needed on S.311. The failed cloture vote was 53-44, with Democratic Sens. Bob Casey (PA), Doug Jones (AL), and Joe Manchin (WV) voting in favor of the legislation. Sen. Susan Collins (R-ME) also voted for the bill, while Sen. Lisa Murkowksi (R-AK) did not cast a vote.
As the name suggests, the “Born-Alive Abortion Survivors Protection Act” relies on misleading and inflammatory language to describe what happens during an abortion later in pregnancy. That rhetoric was center stage during U.S. Senate committee hearing Tuesday.
Though the legislation has no chance of getting through the Democratic-majority U.S. House, its Senate Committee on the Judiciary hearing highlighted Republicans’ reliance on misinformation surrounding later abortion care. They claim the bill is meant to protect infants’ lives after so-called failed abortions—a long-held anti-choice myth. But physicians say the legislation could prevent them from providing the best care to their patients, which could have dangerous impacts.
S.311, introduced by Sen. Ben Sasse (R-NE) in 2019 after his previous attempt did not make it out of committee, would “prohibit a health care practitioner from failing to exercise the proper degree of care in the case of a child who survives an abortion or attempted abortion.” If physicians fail to provide that degree of care, then they could face a fine and up to five years in prison.
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Though Sasse, one of the Senate’s most virulent anti-choice lawmakers, said during Tuesday’s hearing that the bill is not about restricting abortion access, it targets people who need abortion care later in pregnancy and the physicians who provide them. It also stigmatizes abortion care by using inaccurate language like “born alive” and “botched abortion.”
The American College of Obstetricians and Gynecologists (ACOG) opposes the bill, saying in a statement to Rewire.News that it’s not based on evidence or medical science. The legislation “uses dangerous rhetoric that undermines the public trust in obstetrician-gynecologists, stigmatizes necessary health care for women, and callously disregards the tragedies and difficult decisions women and their families face,” the statement said.
Abortions later in pregnancy, at or after 21 weeks gestation, are rare—they make up 1.2 percent of all abortions, according to federal data. Many involve fetal anomalies “incompatible with life, such as anencephaly, the absence of the brain and cranium above the base of the skull,” among other conditions, according to the ACOG.
During Tuesday’s hearing, witness Erika Christensen shared her experience with later abortion. Thirty weeks into her pregnancy, a doctor told her and her husband that if she carried to term, she would give birth to a baby who couldn’t breathe, “and there was no care or treatment available that would change that,” she testified.
When she decided to end the pregnancy, she and her husband had to travel to Colorado to receive care because Christensen was past the gestational limit for abortion in their home state of New York. They used a credit card to book flights to Denver, a rental car, and a hotel room. Her mother took thousands out of her retirement fund to pay for the procedure, which wasn’t covered by insurance.
“We will never be able to regulate or legislate away bad pregnancy outcomes,” Christensen testified. “What we can control are the laws that punish us for them or force us to make decisions we know are not best for us.”
Christensen noted that S.311 does not solve a problem or improve health care. Sen. Dick Durban (D-IL) pointed out early in the hearing that laws against murder, including infanticide, already exist and have been used to prosecute physicians. Sen. Kamala Harris (D-CA) said there isn’t any evidence that this bill would improve health outcomes.
Physicians say the Republican measure further stigmatizes abortion care. Sasse and some of the anti-abortion witnesses who testified before the committee said infants are often “born alive” after “botched abortions.” But that language does not depict medical reality. Dr. Kristyn Brandi, board chair of Physicians for Reproductive Health and OB-GYN, told Rewire.News that proponents of S.311 are trying to scare and mislead people.
“These terms are insulting to doctors that provide compassionate care to their patients and to the patients receiving care,” Brandi said. “More importantly, they are insulting to the real-life experiences of families that need this care. What this bill does is create a vehicle for false narratives and inflammatory language around abortion built to further stigmatize abortion care and the patients needing it.”
Misrepresenting later abortion as “infanticide” is common among anti-choice activists and legislators. During his State of the Union address on February 4, President Donald Trump called on Congress to “pass legislation finally banning the late-term abortion of babies.” “Late-term abortion” is a phrase invented by the anti-choice movement and is not a medical term.
The language used in bills like S.311 doesn’t just mischaracterize medicine—Brandi said it could force doctors to “deviate from their best medical judgment and administer futile and painful treatment against the wishes of parents, under the threat of criminal or civil litigation.”
“My peers and I have spent years studying and training in order to provide the best care to our patients,” Brandi said. “I cannot imagine having to choose between providing medically appropriate care and imprisonment, but that is the world bills like this seek to create.”