Born-Alive Abortion Survivors Protection Act - S.311

The Senate fell short, 53-44, on Monday evening in advancing a bill that Republicans say would guarantee additional protections to an infant who survives an abortion or attempted abortion, despite lobbying efforts by anti-abortion groups and support from President Donald Trump.

All present Republicans voted in favor, while Democrats were opposed except for Sens. Joe Manchin III of West Virginia, Doug Jones of Alabama, and Bob Casey of Pennsylvania. Sen. Susan Collins, a Republican who often votes in support of abortion rights, voted yes, and Lisa Murkowski, the other Senate Republican who supports abortion rights, did not vote.

About 30 House Republicans marched onto the Senate floor to support their colleagues during the vote.

The vote comes after Democrats have pursued legislation on the state level to increase access to abortion during the later stages of pregnancy. Recent action in New York and Virginia to ease restrictions on abortion after 24 weeks has sparked a national debate over viability and how late in a pregnancy states should permit the procedure to be performed.

The Centers for Disease Control and Prevention estimates that 1.3 percent of abortions are conducted after 20 weeks gestation, but conservative groups argue that number likely underestimates its frequency because states are not required to submit this data to the CDC.

State-level bans that target abortions in early gestational periods, some as little as six weeks, have been struck down by the courts that ruled that they conflict with the terms of Roe v. Wade, the 1973 Supreme Court case that guaranteed a woman’s right to an abortion.

Some Republicans hope that by focusing on infants born during late-stage abortion attempts, they can find common ground with some Democrats, although most in the party support abortion rights. 

The bill (S 311) by Sen. Ben Sasse, R-Neb., would not outlaw abortion at any stage of pregnancy, but rather seek to provide protections for an infant who survives the procedure. It has 50 cosposnors.

“This bill doesn’t have anything to do with Roe v. Wade,” said Sasse on the Senate floor Monday. “This bill is exclusively about protecting babies that have been born and that are outside the womb.”

Senate Majority Leader Mitch McConnell, R-Ky., echoed that. 

“It isn’t about new restrictions on abortion. It isn’t about changing the options available to women. It’s just about recognizing that a newborn baby is a newborn baby. Period,” said McConnell. 

Anti-abortion groups like the Susan B. Anthony List have said they hope this vote will get senators running for the Democratic nomination in 2020 on the record on this issue.

The bill “is carefully crafted to target, intimidate, and shut down reproductive health care providers,” said Minority Leader Charles E. Schumer, D-N.Y. “My Republican colleagues have said some incendiary things about opposing this bill. Let me be very clear. Many of these claims are false. It has always been illegal to harm a newborn infant. This vote has nothing to do with that.”

“If you are a medical provider, this bill would supersede your years of medical training and your oath to deliver the best possible medical treatment to your patients. It would apply a one-size-fits-all set of requirements that do not reflect the reality that every pregnancy is different,” said Senate Health, Education, Labor and Pensions ranking member Patty Murray, D-Wash.

Abortion-rights advocacy groups have also lobbied against the legislation.

“We must call out today’s vote for what it is: a direct attack on women’s health and rights. This legislation is based on lies and a misinformation campaign, aimed at shaming women and criminalizing doctors for a practice that doesn’t exist in medicine or reality,” said Planned Parenthood President Leana Wen.

House Conservatives
Trump recently met with advocates, including abortion survivors, at the White House before conducting a conference call with anti-abortion supporters praising the Sasse bill.

House Republicans are also pressuring Democratic leadership to bring up that chamber's version (HR 962) of the same bill. A number of lawmakers — including Minority Whip Steve Scalise, R-La., and Minority Leader Kevin McCarthy, R-Calif. — have requested the bill to be considered by unanimous consent, but were denied each time.

“We will continue to ask the House for unanimous consent until the Democrats join us in recognizing that the right to life is the foundation of freedom itself,” said McCarthy in a Feb. 22 blog post.

Heritage Action, the lobbying arm of the conservative Heritage Foundation, launched a campaign last week to pressure 28 moderate House Democrats to sign a discharge petition to force a vote on the bill. Scalise and Rep. Ann Wagner, R-Mo., have spearheaded the petition process but will need 218 votes, meaning a number of Democrats would need to pivot on the issue.

“Many Democratic Congressmen campaigned on a moderate platform, against their radical party leadership. For them, refusing to sign a discharge petition would be breaking a major campaign promise and a total violation of their constituents’ trust,” said Heritage Action’s executive director, Tim Chapman.

A previous version of the bill passed the House 241 – 183 in 2018, with six Democrats joining all present Republicans.

It’s unlikely that any type of abortion legislation could pass now with a divided Congress.

Background: 

Senator Sasse’s Born-Alive Abortion Survivors Protection Act would protect newborns that survive botched abortions by requiring appropriate care and admission to a hospital.  

Last week, Senator Sasse asked for unanimous consent to pass the legislation. Some Democrats blocked the request. 

Sasse's legislation simply requires that, when a botched abortion results in the live birth of an infant, health care practitioners must exercise the same degree of professional skill and care to protect the newborn as would be offered to any other child born alive at the same gestational age. 

Currently, federal law does not adequately protect a born child who survives an abortion. On January 22, 2019, New York repealed protections (section 4164 of the state's public health law) for an infant born alive during an abortion.

On January 30, Virginia Governor Ralph Northam endorsed infanticide while discussing an extreme late-term abortion bill being considered in the state House of Delegates. After trying to walk-back his comments, Governor Northam doubled-down on January 31, declaring "I don’t have any regrets."