As part of their election year agenda, abortion opponents are planning to push the unfounded myth that abortions routinely result in live births, and that the providers who perform the procedures have no ethical responsibility to save those lives.
Two women who claim to be the product of unsuccessful abortions will speak at this year’s March for Life, the annual anti-abortion demonstration in protest of the January 1973 Supreme Court ruling on Roe v. Wade. And the organization behind the march, along with other major anti-abortion groups, has pledged to push federal "Born-Alive" legislation in 2020 that would require doctors to provide medical care to infants who survive failed abortion procedures.
But experts say there are several problems with the premise of such legislation, which relies on the false assumptions that abortions later in pregnancy are more common than they are; that failed abortions are widespread when they are not; and that no laws currently exist to prohibit the murder of an infant when they do.
“This is a solution without a problem,” said Amy Hagstrom Miller, the president of the independent clinic network Whole Woman’s Health. “This legislation tries to make it seem like we’re not legitimate medical providers providing a standard medical procedure. It tries to paint a picture of sensationalism and gore.”
The bill abortion foes are backing is known as the “Born-Alive Abortion Survivors Protection Act,” federal legislation authored by Nebraska Senator Ben Sasse that has been stalled in Congress since February, after it failed to get the votes it needed to move forward in the Senate. If enacted, Sasse’s bill would punish anyone who fails to provide medical care to infants resulting from an unsuccessful abortion with up to five years in prison. Currently, there are six states with some kind of “born-alive” law on the books, and multiple legislatures attempted to pass a version of the legislation last year.
George W. Bush signed a similar bill into law in 2002, but it didn’t include care mandates or establish criminal penalties for providers—this one does. Anti-abortion lawmakers and activists claim that Democrats who don't support this bill are enabling infanticide: Sasse himself has called his bill an "infanticide ban." (Sasse’s office did not respond to VICE’s request for comment regarding whether he plans to reintroduce the legislation this year.)
Though anti-choice activists are heavily focused on the Louisiana abortion case the Supreme Court will hear just two months from now, reproductive health advocates say drawing attention to so-called “born-alive” legislation is strategic, linking together harmful misconceptions about abortion to bolster their cause.
“Abortion is incredibly safe and incredibly effective,” said Elisabeth Smith, the chief counsel for state policy and advocacy at the Center for Reproductive Rights. “But ‘born-alive’ bills connect all of these myths together to further their ultimate goal of limiting access to care and prohibiting abortion entirely.”
Smith says much of the bill’s power lies in its name. The expression “born alive” is “inflammatory language,” she said, meant to play on people’s emotions and create a graphic—and inaccurate—image in their heads of what an abortion entails. That image is also a powerful political tool, according to Robin Marty, author of Handbook for a Post-Roe America.
“Advancing this legislation is a calculated move designed to help President Donald Trump win re-election, and it is assistance that the Trump campaign is eager to accept,” she wrote last month in a piece for PoliticalResearch.org.
Using emotional, misleading rhetoric has become a favorite tactic for anti-choice activists and politicians: Last winter, during his State of the Union Address, President Donald Trump said a New York law easing restrictions on abortion later in pregnancy allowed fetuses to be “ripped from the mother’s wombs moments before birth.” At a rally just a week later, Trump told a crowd of supporters that Virginia Governor Ralph Northam, who had earlier commented on similar legislation, wanted to give pregnant people the choice to “execute” their babies after giving birth. And in February, after the Senate vote on Sasse’s bill, Trump tweeted: “Democratic position on abortion is now so extreme that they don’t mind executing babies AFTER birth.”
Conservative PACs and anti-abortion organizations employed the same strategy in Facebook ads later that year, targeting Democratic lawmakers and presidential candidates, and calling Democrats the “party of death.”
Pushing legislation that requires doctors to provide medical care to live births resulting from failed abortions plays into this same imagery, said Jen Villavicencio, a fellow with the American College of Obstetricians and Gynecology, and a Michigan-based OB/GYN, making it seem as though most abortions happen close to or past the point a fetus is viabile outside the womb.
“The most prominent abortion myth in the last couple years has been that abortion can happen just before birth,” she said. “That’s not something that happens, ever, anywhere in this country. And when we’re talking about abortion later in pregnancy it’s important to remember those situations are always extremely complex, and always involve patients interfacing with physicians and making these decisions with their communities and families.”
In reality, only 1.2 percent of abortions occur at or after the 21-week mark—66 percent occur in the first eight weeks, and 92 percent occur by week 13. What’s more, those who do have abortions later in pregnancy often do so because of previously undetected fetal anomalies, risks to their own health, or because barriers to abortion care kept them from getting the procedure sooner.
According to the Centers for Disease Control and Prevention, there have been 143 recorded deaths associated with infants who resulted from an attempted abortion between 2003 and 2014, and many states have reported zero live births out of thousands of abortion procedures.
Some anti-choice Democrats have argued that if a live birth is so rare, there’s no downside to passing Sasse’s legislation. But advocates say the bill could make it so that providers who don’t try to resuscitate infants unlikely to survive for more than a few hours could face felony charges. They also worry that those potential legal repercussions would force providers to go against some patients’ wishes that a newborn with a terminal diagnosis receive palliative care rather than undergo futile medical intervention.
“When you go to your doctor you don’t want them thinking about the possibility of being charged with a crime for providing you with the safest and most evidence-based care,” Villavivencio said. “That’s what this type of legislation does: It’s not based in any science, it’s not based in anything that is medical whatsoever. It’s based in ideology and myth.
“We’re not bad actors,” she continued. “If a complication occurs we do everything we can within the bounds of medical ethics, the law, and the safe scientific practice of medicine to rectify that complication.”
It’s likely that the rhetoric of “infanticide” and its ilk will crop up at rallies, debates, and campaign ads again this year. Politicians continue to use the specter of abortions later in pregnancy to foment opposition to abortion—despite the majority support for abortion in the United States—by stigmatizing both people who get the procedure and the doctors who provide it, Smith said.
“Many of these bills have the same insidious goals,” she said. “They drive a wedge between patients and providers, and they paint providers as inept or immoral. This is their play writ large, and we see it in all different types of legislation.”
Update 1/7/2020: A previous version of this article named North Carolina and Wisconsin as states that have passed "born-alive" legislation. In fact, the respective bills only passed in their state legislatures before getting vetoed by the states' governors.