“Born alive” bills show where abortion politics are going.
Worked in Obama’s Office of Faith-Based and Neighborhood Partnerships
We are in the postabortion-debate phase of the abortion debate. Earlier this week, Senator Ben Sasse’s Born-Alive Abortion Survivors Protection Act was debated on the Senate floor, and failed to receive the 60 votes necessary for cloture. The bill was supported by all present Republicans and three Democrats: Senators Bob Casey, Doug Jones, and Joe Manchin. All other Senate Democrats opposed the legislation.
In the most literal sense, the debate is now postabortion because Sasse’s bill addresses what happens in the rare instances when the medical procedure is unsuccessful and a child is born alive. Additionally, Sasse and some Republican allies claimed vehemently that the bill had nothing to do with restricting abortion, and therefore should have been an easier sell for pro-choice Democrats. But, of course, this postabortion phase of the abortion debate is still very much about abortion, and it lays bare the distrust, offense, and callousness bred by abortion politics in the United States over the past 50 years.
This issue of failed abortions is not a new one. In 2002, Congress passed the Born-Alive Infants Protection Act by a voice vote. During his presidential campaigns in 2008 and 2012, Barack Obama was dogged by accusations that in 2003 he opposed a similar bill in the Illinois state legislature. During the 2016 presidential debates, while Donald Trump did not bring up this issue specifically, he did accuse Hillary Clinton of supporting the idea that in “the ninth month you can take the baby and rip the baby out of the womb of the mother.” Clinton replied with a passionate case for ensuring the availability of abortions late in pregnancy.
The latest round of accusations comes in response to two pieces of legislation proposed in Virginia and New York, and the conversations and politics surrounding them. In New York, the Reproductive Health Act removed almost all restrictions on abortion in the state, protected abortion after the 24th week of pregnancy so long as it was deemed “necessary to protect the patient’s life or health,” weakened regulations around who could perform abortions, and overrode New York’s existing born-alive protections. The passage of the Reproductive Health Act was celebrated—in contrast to major legislation passed that same week to protect Dreamers, for instance—by lighting One World Trade Center pink.
The Virginia bill would similarly override restrictions on third-trimester abortions, but it is unlikely the bill would have received much attention if its sponsor, Virginia Delegate Kathy Tran, had not suggested in a debate that her bill would allow an abortion to take place as a pregnant woman was dilating. Virginia Governor Ralph Northam, in an attempt to clarify the bill’s purpose, explained to a radio talk-show host that “if a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.” Republicans and others suggested that Northam’s comments opened the door to infanticide, a claim his spokesperson denied by clarifying that Northam’s description applied only to babies born with fetal anomalies incompatible with life. Still, President Trump seized on this debate in his State of the Union, decrying the Virginia and New York legislation in stark, visceral terms.
Sasse first introduced the Born-Alive Abortion Survivors Protection Act in 2017, though it did not make it out of committee then, despite Republican control of the Senate. It was only the political salience of the legislation due to the latest controversies that prompted Majority Leader Mitch McConnell to allow it to come to the Senate floor. McConnell made a point this time around to write an op-ed for the Louisville Courier-Journal in which he hypocritically decried partisanship and expounded on the urgent moral imperative of the legislation. McConnell knew the bill would fail and that was why he brought it to a vote: not to pass the legislation, but to highlight Democratic extremism.
There were three main substantive criticisms of the bill: that it represented a gross and even insulting encroachment by the government in the doctor-patient relationship; that it was unnecessary, as its stated purpose was already covered by existing law; and that it was unnecessary, as it sought to address a situation that did not exist. On the Senate floor, these criticisms were often secondary to repeated assertions that the bill sought to interfere with a woman’s access to abortion.
Let’s go point by point.
As mentioned, the bill itself, which is brief, does not directly address women’s access to abortion, but instead what happens after an abortion.
Abortions do sometimes fail. The Centers for Disease Control and Prevention reported that from 2003 to 2014, at least 143 infant deaths involved “induced termination.” Only 97 of these infant deaths could be determined to have “involved a maternal complication or congenital anomalies.”
Twenty-six states have laws on the books that specifically mandate care for infants born alive after an abortion—therefore, such laws are not unheard of or easily derided as a mere political tactic—but 24 states do not. The 2002 act extended legal protections to infants born alive after an abortion, but did not include criminal penalties for doctors or impose specific requirements for medical care, as Sasse’s bill does.
Finally, it is not disparaging to everyone who works in a field (in this case, medicine) to suggest that more oversight is necessary, or even to propose punishment for lawbreakers. Democrats today are calling for additional regulation of a range of industries and fields, including law enforcement, pharmaceuticals, agriculture, the health-insurance industry, and, yes, medical care and decision-making. We know evil people exist, and some of them are doctors like Kermit Gosnell, who was sentenced by a Pennsylvania grand jury in 2016 after he was found to have committed precisely the act the Sasse bill is meant to penalize and prevent.
By focusing on abortion rights, Democrats ended up arguing a lot about what was not explicitly in the bill, while neglecting to make clear to the American people that they do, in fact, oppose infanticide and believe babies born alive after a botched abortion deserve medical care consistent with similarly situated babies who are born under any other circumstance. Not one Democrat uttered the phrase born alive during the floor debate. Not one Democrat referred to the 2002 act or expressed support for it during the floor debate. If Democrats truly believe the bill is a disingenuous attempt in a long game to end access to abortion, they could at least have been clear while voting against it that they endorse its sponsors’ stated intent. They could have also proposed, or tried to propose, amendments to the legislation, as the writer Charles Camosy has suggested. Senator Tim Kaine released a statement that did affirm the 2002 bill, but that was an exception to the rule. I would imagine that someone like Senator Claire McCaskill might have had a similar approach, but in part because abortion politics caused an internal fight among Missouri Democrats months before Election Day, she is now a former senator.
After decades of earnest attempts to find some common ground on this most tender and personal issue—think of Senators Ted Kennedy and Sam Brownback’s work on a Down Syndrome registry, bipartisan support for the Hyde Amendment, and President Obama’s first-term appeal for efforts to reduce the number of women seeking abortions—that impulse has been virtually eradicated among elected officials. Our politicians spend so much time with people who agree with them, using talking points cleared by or provided by entrenched advocacy groups and pursuing electoral strategies more reliant on base turnout than persuasion, that it has become difficult to tell if they have simply forgotten how to speak with people who hold a different viewpoint or if they simply do not care. So many of these controversies would be avoided if politicians were more familiar with different perspectives on abortion, and the arguments and sensitivities that undergird them.
What makes this situation even more intractable is that our politics seem to reward politicians and pundits who characterize their opponents in the most derogatory ways. Trump tweeted after the vote on Sasse’s bill that “the Democrat position on abortion is now so extreme that they don’t mind executing babies AFTER birth.” Former Governor Mike Huckabee accused Democrats of wanting to “murder freshly born babies.” Senator Chuck Schumer said during floor debate that “the bill is solely meant to intimidate doctors and restrict patients’ access to care and has nothing, nothing, nothing to do with protecting children.” There is no sense that anti-abortion Republicans are influenced by the stories of women like Dr. Jen Gunter or Erika Christensen. There is no sense that pro-choice Democrats are aware of sincere pro-life Americans, or take seriously the claim that abortion is an attack on the very human dignity Democrats rightly invoke (and, yes, many anti-abortion Republicans ignore) when discussing immigration, poverty, or human rights. Now our politics are only for the absolutists, those who deny any place for doubt or humility.
Appropriately, but perhaps surprisingly, many of those closest to the issue of abortion talk about it differently. I have found that rhetoric like Huckabee’s is completely unwelcome among many who are most committed to the pro-life cause. I have spoken with women who work at pro-life pregnancy clinics who condemn any language that shames women or increases the moral burden women feel. They work with pregnant women who are facing immense pressures and seemingly impossible situations every day, and approach the issue of abortion with compassion, not callousness. Some of the most committed pro-choice people I know hold their position in tension with taking the moral claims of pro-life Americans seriously, not by pretending those claims don’t exist. It is in the dehumanizing environment of our political system that humans become abstract enough to denigrate in order to advance some partisan purpose.
The truth is that while Republicans were right to claim that Sasse’s bill has no direct impact on the legality of abortion, support of this postabortion bill requires the acknowledgement of realities that threaten uncomplicated support for the pro-choice position. If a failed abortion is one that results in a baby that is born alive, what does that say about the purpose and effect of a successful abortion? Regardless of concerns about the political motives driving the conversation, if Democrats can’t support a bill that penalizes denying proper care to a baby who survives an abortion because it might undermine other commitments, or offer a serious alternative proposal that protects those commitments, perhaps those commitments require further examination. If the penalties in Sasse’s bill for situations that Democrats say are either rare or nonexistent are capable of impeding the entire medical field’s capacity to conduct abortions, what does that say about how thin the line is between proper care and negligence?
Democrats’ principal concern should not be to defend themselves against Trump on these issues. Trump’s anti-abortion stance appears to be one of political convenience, not deeply rooted conviction, and I am uninterested in the transparently self-interested appeals to morality of a man whose life and presidency have been so thoroughly immoral. He has no standing to lecture Democrats or anyone else on how to uphold human dignity and advance justice in our politics. Democrats do have an obligation, though, to provide a clear answer to Americans who are not so cynical, who are concerned that our approach to abortion is one sign, along with policies espoused by Trump and Republicans, that we have lost our moral bearings as a country in pursuit of political power. There are still American voters who hold out hope that they might hear politicians actually say what they believe without obfuscation.
Abortion will play a significant role in the 2020 presidential campaign, as it has in most of our presidential elections since Roe v. Wade. Observers miss its significance when they look only to where it ranks in surveys of voters’ top priorities. Abortion is one of those issues that influences voters’ assessment of what kind of person a candidate is and what kind of president he or she will be. If a candidate promises to unite the country, but uses the issue of abortion to divide it, voters pay attention to that. Voters also pay attention if candidates say they’ll listen to all Americans, but their rhetoric on abortion reflects that they don’t understand why anyone would disagree with their position. Trump will continue to use the issue of abortion as a way to neutralize criticism that he is immoral, and that will have a powerful effect on a significant number of pro-life Americans if Trump is the only candidate who speaks to them.
What the abortion debate needs is not an increase of moral outrage—we have plenty of that—but instead a sense of moral lament. It is to our collective shame that our politics seem incapable of such a development.
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Michael Wear is a writer based in Washington, D.C. He previously led faith outreach for President Obama’s 2012 election campaign and worked in his Office of Faith-Based and Neighborhood Partnerships.