The failed Born Alive Abortion Survivors Protection Act bill aimed at penalizing doctors who do not provide medical treatment to infants surviving a failed abortion was "more a matter of political framing than substance," an expert on the history of reproduction rights and the Constitution has said.
On Tuesday, President Donald Trump hit out at Democrats after the "Born Alive" bill fell short of the 60 votes it needed to pass, with a 53–44 outcome.
Only three Democratic senators, Joe Manchin of West Virginia, Doug Jones of Alabama and Bob Casey Jr. of Pennsylvania joined Republicans to vote in favor of the bill.
"Senate Democrats just voted against legislation to prevent the killing of newborn infant children. The Democrat position on abortion is now so extreme that they don't mind executing babies AFTER birth," Trump tweeted on Tuesday. "This will be remembered as one of the most shocking votes in the history of Congress. If there is one thing we should all agree on, it's protecting the lives of innocent babies."
Mary Ziegler, a professor at Florida State University's College of Law who specializes in the legal history of reproduction and the Constitution, told Newsweek she disagreed, however, arguing that the bill had more to do with "Republican and potentially pro-life strategy more than anything else."
"Pro-life members of Congress are trying to exploit, basically, as an election issue, the fact that Americans aren't comfortable with late-term abortions," she said.
"If you look at polling, people are more likely to oppose abortion if it's around the third trimester," Ziegler said. "Republicans see that as a political gift."
The reproductive rights historian said that if the aim of the bill is to protect the lives of born infants, legislation already exists to serve that purpose, pointing to the "Born Alive Infants Protection Act" of 2002.
"That gives infants born at any stage of development full legal rights," she said. "So, in theory, that law, which is a federal law, would already give rights to children born after an abortion."
The difference between the 2019 proposal and the 2002 legislation, she said, is that the prior Act "isn't abortion specific," despite applying to "all children born at any stage of development." "It also doesn't have criminal penalties for doctors," she said.
Jonathan Lord, who serves as co-chair of the British Society of Abortion Care Providers agreed, telling Newsweek in an emailed statement that "newborn babies are already protected under current law."
"If there were a situation they were born alive but had no prospect of survival...then normal practice would be to provide palliative care and to relieve any suffering for that baby," for example, "with painkillers," he said.
"I've never personally heard of such a case following abortion, but it does happen in wanted pregnancies where the mother has a premature labor and delivers prior to viability," Lord said.
Lord warned that something like the Born Alive bill could "frighten staff into feeling they have to provide intensive medical treatment and resuscitation, which is likely to be undignified, invasive and distressing."
"There are clear neonatal guidelines and precedent as to when it is appropriate to provide intensive support with a chance of saving a premature baby, and when this would simply be cruel and futile," Lord said. "This has to be a matter of clinical judgment taken in the best interests of the child which would be very hard accurately to convey in any law."
Ziegler noted that pro-abortion advocates have made clear that their issue with the bill centers around the possibility that "if a bill penalizing doctors over the standard of care of children born alive in failed abortions was passed, it could have a "chilling effect" for doctors who may be "worried that they would be held liable for not meeting the standard of care."
"So, my understanding is that the concern is not that abortion rights supporters don't approve of providing care to children born after abortions necessarily, but they don't think the language is clear enough about what physicians would need to do to [meet the standard of care] and they think that would expose doctors who are not doing anything wrong to criminal liability."
Ziegler also noted that standard abortion techniques have come a long way over the decades and said that the "Born Alive" bill aims to address "something that happens almost never."
Instead, she said she interpreted the bill as "mostly an effort by Republicans to force a conversation about late-term abortions and a conversation about abortion techniques," ahead of the upcoming 2020 election, which she said is "never a conversation that pro-choice people particularly want to have."
"I don't think this is about changing the law in a particularly substantive way," Ziegler said. "If you're pro-life Republican and your goal is to prevent as many abortions as possible, this is not going to do that or come close. It's about fighting the battle on politically favorable terrain."
About the writer
Chantal Da Silva is Chief Correspondent at Newsweek, with a focus on immigration and human rights. She is a Canadian-British journalist whose work ... Read more
