A ‘Born Alive’ Measure Is One of the House GOP’s Priorities. Here’s What It Would Actually Do.

Originally published by The 19th

House Republican leaders have vowed swift action on a number of measures related to abortion this year — including one that compels health care providers to provide life-sustaining care to infants born after an attempted abortion. 

But, reproductive rights advocates and physicians say, the rights of infants born by any method, including after an attempted abortion, are already protected by a bipartisan 2002 law that established that infants have the rights of a full human. Live births after an attempted abortion are exceedingly rare, and the proposed measure would take away power over medical interventions from families and physicians. The GOP proposal, introduced by Rep. Ann Wagner of Missouri, would apply to cases where the abortion was carried out because of a risk to the pregnant person’s life or lethal fetal anomalies.

“The 2002 Born-Alive Infants Protection Act gives absolutely every protection that you would ever want or need for an infant who was born at any stage of development. In that situation, you want parents to be able to decide what the care for their child looks like,” said Dr. Lauren Wilson, a hospital pediatrician and the president of the Montana chapter of the American Academy of Pediatrics.

The “born alive” legislation is one of a number of anti-abortion measures that is likely to get a vote in the new Republican-controlled House. House Republicans also promised quick votes on a proposal to permanently ban federal funding for abortions or for health care plans that cover most abortions. The Democrat-controlled Senate is unlikely to take up any measures that would restrict abortion, meaning it would not become law. 

Rep. Steve Scalise of Louisiana, the No. 2. House Republican, promised a floor vote on the measures in the first two weeks of the year, though Republicans’ stalemate over who should lead them has suspended any other action in the chamber, including on the party’s own legislative priorities. 

The Family Research Council, an anti-abortion group, has long supported legislation like the proposed Born-Alive Abortion Survivors Protection Act, which opens the door to civil lawsuits against and prison sentences of up to five years for physicians. The group’s own analysis found that the House GOP bill would be more restrictive than the laws already on the books in 32 states. (The list includes some states that have total or near-total abortion bans, such as Idaho and Mississippi.)

Critics of the federal GOP “born alive” proposal say it is shrouded in misinformation about difficult circumstances involving abortions and paints a picture of neglect of infants that is not the reality within health care settings. It could force physicians to perform care on infants that would prolong their lives for a short time but not save them, in some cases meaning parents could not hold the infant if they choose.

“It’s an entirely fabricated political concept. This idea is not something that really exists in medicine the way it is described in these bills,” said Jen Villavicencio, an Washington D.C.-based OB-GYN who works with the American College of Obstetricians and Gynecologists.

“It’s certainly not science-based and certainly not based in care for families and pregnant individuals,” Villavicencio added.

Wilson, the Montana pediatrician, was part of a campaign against a “born-alive” referendum in her state last fall that would have required doctors to provide life-sustaining care to any infant after birth, regardless of the circumstances surrounding their birth or chance of survival. The measure failed by six percentage points. Wilson said Montanans recognized it as “an intrusion on their ability to make their own medical decisions for themselves and their families.”

She highlighted that these circumstances — in which an infant is born after an attempted abortion — are “really, really rare.” In instances where they occur, the situation may be the result of a late miscarriage or an abortion attempted to save the life of the pregnant patient. 

“Then, parents would be able to decide whether they want to hold their baby, whether they want to have their pastor present, whether they want to take pictures, and they shouldn’t be required to seek medical care for that baby if the determination is clear to everyone that the baby is not going to survive,” she said. 

But the fact that this Republican-backed legislative priority is far less than what major anti-abortion groups are calling for indicates fissures between abortion opponents who have long supported the GOP and elected officials who experts say are likely wary of promoting unpopular abortion bans. 

Abortion opponents are urging Republicans to use their House majority to take more far-reaching measures, as laid out in a letter signed by dozens of anti-abortion groups, led by the conservative Heritage Foundation think tank and Susan B. Anthony Pro-Life America. 

In that letter, anti-abortion organizations endorsed a national law banning abortion at six weeks of pregnancy, legislation that is largely unpopular with the general public.

“The policies we highlight are the floor, not the ceiling, of what we expect from a pro-life majority in the House of Representatives,” read the letter, first reported by Politico.

“It’s not going to make abortion opponents happy and it tells me that people in the House — at least, what passes for the mainstream of the House Republican Party — don’t want to focus a lot of attention on abortion and thinks it’s counterproductive,” said Mary Ziegler, an abortion law scholar at the University of California Davis. 

When it comes to policies like those House Republicans are currently prioritizing, she added, lawmakers “can’t seriously argue this is the most impactful thing you can do on abortion.”

In the past, House Republicans have supported bills that would have banned abortion nationally after 20 weeks of pregnancy — legislation that was unlikely to become law, thanks to the federal abortion protections under Roe v. Wade. That kind of bill is noticeably absent from the GOP’s stated priorities, which some experts say indicates just how the politics of abortion restrictions have changed since Roe was overturned last summer. 

“You have a whole generation of people that always had some kinds of rights to abortion. To take that way without any repercussions or think the public is going to be supportive – it just doesn’t seem to make sense,” said Ashley Kirzinger, a pollster at the nonprofit Kaiser Family Foundation, who has tracked abortion-related public opinion. “If you are going to take something away, you have to have something popular to replace it, and a national ban, a six-week ban, doesn’t have that.”

Ziegler noted that the most substantive immediate policy changes are likely to come from statehouses, where lawmakers have begun pushing bills to further restrict abortion, as well as state and federal courts. 

“The action is in the states, and savvy anti-abortion groups know that,” she said. “If you look at federal initiatives anti-abortion groups are taking seriously, they take you back to the Supreme Court.”