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On Feb. 25, the Senate took up a bill backed by anti-abortion advocates called the "Born-Alive Abortion Survivors Protection Act."
Under the bill, "any infant born alive after an abortion or within a hospital, clinic, or other facility has the same claim to the protection of the law that would arise for any newborn, or for any person who comes to a hospital, clinic, or other facility for screening and treatment or otherwise becomes a patient within its care."
The bill goes on to say that anyone (except the mother) who "intentionally performs or attempts to perform an overt act that kills a child born alive" can be prosecuted for "intentionally killing or attempting to kill a human being."
The bill failed on a procedural motion, with 53 votes in favor when 60 were needed to advance it. The only senators who crossed party lines were Democrats who voted in favor of the measure: Bob Casey of Pennsylvania, Doug Jones of Alabama, and Joe Manchin of West Virginia.
"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. 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."
Those are strong words. We wondered: Is it true that the Democrats vote against the bill mean that they "don’t mind executing babies AFTER birth"?
After interviewing a range of experts on both sides of the abortion-policy divide, we concluded that while Democrats have left themselves open to this line of attack, Trump’s claim is inaccurate. (The White House did not respond to an inquiry.)
Broadly, critics of the bill said that it would take decisions out of the hands of parents and medical professionals and hand it to politicians. Democrats also argued that the number of relevant cases is vanishingly small, and usually involve heartbreaking situations that often have specific, unusual factors at play that are hard to accommodate in advance. Because of this, they saw the bill as a chance for Republicans to embarrass Democrats rather than as a genuine piece of legislation aiming to solve a significant problem.
Perhaps the Democrats’ most basic argument in the context of Trump’s charge, however, is that laws already exist to cover the scenario the bill would seek to prevent, making the new bill redundant.
In a floor speech before the vote, Senate Minority Leader Chuck Schumer, D-N.Y., said, "It has always been illegal to harm a newborn infant. This vote has nothing—nothing—to do with that. Read the language."
Sen. Patty Murray of Washington, the ranking Democrat on the Health, Education, Labor and Pensions Committee, echoed that argument. "This bill is not about protecting infants, as Republicans have claimed, because that is not up for debate and it is already the law," she said.
Most legal experts we contacted agreed with this much of the Democrats’ argument: Killing a baby after birth is already against the law.
"Actively killing an infant born alive is a crime," said Lois Shepherd, a professor of law and biomedical ethics at the University of Virginia and author of the books Rationing Health Care at the End of Life and If That Ever Happens to Me: Making Life and Death Decisions After Terri Schiavo. "Under the law, living infants are just like other living people. They are children. Children are people."
Legal experts pointed to several specific laws relevant to newborns:
• The Child Abuse Prevention and Treatment Act, first passed in 1974 and subsequently revised, including major updates in the 1980s. The relevant portion of the law makes certain types of federal funding for states conditional on their adoption of policies to prevent improper withholding of treatment from newborns, including those with disabilities.
• The Born-Alive Infants Protection Act of 2002 established that federal legal protections that applied to "persons" also covered children born at any stage of development, including after an abortion. The law did not directly create civil or criminal penalties, however -- something the 2019 bill would have added. Filling that omission was a key motivator for supporters of the bill.
The 2002 law is "toothless and purely symbolic," said Dwight Duncan, a University of Massachusetts law professor who serves on the the boards of the Pro-Life Legal Defense Fund and Massachusetts Citizens for Life.
• State laws. State, rather than federal, laws "are the primary source of protection against active or negligent killing of infants born during the process of abortion," said Teresa S. Collett, a law professor at the University of St. Thomas and director of the university’s Prolife Center. In 2002, Collett said, Congress identified 30 states that had some statutory protection for infants surviving an attempted abortion.
"Most states would allow prosecution of doctors for killing or failing to resuscitate after a live birth," said Douglas O. Linder, an emeritus law professor at the University of Missouri-Kansas City.
In fact, the highest-profile case of this type was prosecuted under state laws: The 2013 trial of Philadelphia abortion doctor Kermit Gosnell, who was sentenced to three life terms for killing a series of late-term newborns in gruesome fashion.
"Not to provide standard newborn care for those infants that happen to survive an abortion and emerge breathing could be considered a form of negligent killing or homicide," Duncan said.
Part of the reason that tensions over abortion have been heightened this year is the consideration of bills in two states -- New York and Virginia -- to ease some of the state-level rules governing abortions, particularly late-term abortions. (We previously fact-checked a statement by Trump about the Virginia bill and another about the New York bill.)
Critics of the Democratic position on the Senate bill say the redundancy argument is a fig leaf for political considerations. If Democrats agree with the overall principle, the argument goes, there is little harm in passing a law that reinforces existing statutes.
"Personally, I do not think it credible for Democrats to say they are against ‘executing babies after birth’ if they are unwilling to provide criminal and civil penalties to abortion doctors that kill babies that survive abortions, nor provide equal standard of medical care for such babies," Duncan said. "It is a largely rhetorical strategy to get out of an embarrassing position."
There is a long tradition in Congress by both parties of putting forward bills that seek to force the other party into casting awkward votes. This law would fall into that category, said Mary Ziegler, a Florida State University law professor and author of the books Beyond Abortion: Roe v. Wade and the Fight for Privacy and After Roe: The Lost History of the Abortion Debate.
The Senate bill "mostly appealed to Republicans because it would put Democrats in a difficult political situation," Ziegler said. "Polls show that most Americans are uncomfortable with later abortions, much less anything after a live birth. Focusing on this issue is strategically savvy, even if it would make very little difference to the overall number of abortions."
On the other hand, experts agreed that Trump’s use of the word "executing" grossly exaggerated the Democratic position.
"My impression is that the term ‘execution’ is generally reserved for public application of the death penalty," Duncan said.
Merriam-Webster’s definition of "execution" agrees. It says the word refers to "a putting to death, especially as a legal penalty." Certainly the deaths envisioned by the recent bill aren’t carried out as a legal penalty.
In reality, both sides agree that active killing of a breathing newborn is -- and should be -- illegal.
"There is a broad consensus that a child that takes its first breath has crossed a bright line from fetus to child and should be protected by the law," Collett said.
"This is a clear-cut concept that we can all agree upon," said Gretchen Ely, an associate professor at the University of Buffalo’s School of Social Work and a board member for Social Workers for Reproductive Justice. "The notion that anyone supports executing infants after birth is preposterous."
More complicated are cases in which the newborn is so severely disabled that they may not survive beyond a few days.
"Many abortions that occur later in pregnancy involve fetal anomalies incompatible with life, such as anencephaly, the absence of the brain and cranium above the base of the skull, or limb-body wall complex, when the organs develop outside of the body cavity," the American College of Obstetricians and Gynecologists has written.
A failure to resuscitate, which is typical in such cases, "is a much more contentious issue," said Arthur Caplan, a bioethicist at New York University Langone Medical Center. "Babies born post-abortion, spontaneous or induced, with horrible and potentially painful conditions incompatible with life, would not be routinely resuscitated or aggressively treated by most medical teams. In fact some would not even know how to try, or lack the technology to do so, especially in rural areas."
Caplan said he is unaware of examples of "medically active killing," and that while "allowing to die does happen," it occurs "very rarely—say, a baby born with no lungs at 20 weeks."
In such a scenario, Trump’s image of an "execution" is hyperbole, experts said.
"I do not have a clue what is meant by ‘executing’ after birth," said Leslie Francis, director of the Center for Law and Biomedical Sciences at the University of Utah who also serves as a member of the ethics committee of the American Society for Reproductive Medicine and previously served as a director of the Disability Law Center.
Trump said, "The Democrat(ic) position on abortion is now so extreme that they don’t mind executing babies AFTER birth."
There’s little question that the vote on the Senate bill was uncomfortable for Democrats: They effectively voted against a bill whose principles they said they support, arguing that the bill would be redundant because those principles are already enshrined in law.
However, Trump overreached when he described Democrats as tolerating "executing" newborns. No one supports actively killing newborns, much less "executing" them; the contested terrain concerns what efforts should be made to extend the lives of babies who are not expected to survive long with severe disabilities.
We rate the statement False.
Born-Alive Abortion Survivors Protection Act, main bill page
Born-Alive Abortion Survivors Protection Act, bill text
Senate roll call vote on the Born-Alive Abortion Survivors Protection Act
Chuck Schumer, floor speech, Feb. 25, 2019
Patty Murray, floor speech, Feb. 25, 2019
Child Welfare Information Gateway, Child Abuse Prevention and Treatment Act, accessed Feb. 26, 2019
Born-Alive Infants Protection Act of 2002, main bill page
Merriam-Webster definition of "execution"
American College of Obstetricians and Gynecologists, "Facts are Important: Abortion Care Later in Pregnancy is Important to Women’s Health," accessed Feb. 26, 2017
Associated Press, "Dems Block Senate GOP Bill on Infants Surviving Abortions," Feb. 25, 2019
Roll Call, "Senate vote on abortion legislation fails to advance measure," Feb. 25, 2019
Associated Press, "Philadelphia abortion doctor sentenced to three life terms in jail," May 15, 2013
PolitiFact New York, "Abortion foe makes false claim about NY law," Feb. 22, 2019
PolitiFact Virginia, "Trump falsely claims Northam said he'd let doctors 'execute' newborns," Feb. 20, 2019
Email interview with Andrew Taverrite, press secretary for Planned Parenthood Federation of America, Feb. 26, 2019
Email interview with Lois Shepherd, professor of law and biomedical ethics at the University of Virginia and author of the books Rationing Health Care at the End of Life and If That Ever Happens to Me: Making Life and Death Decisions After Terri Schiavo, Feb. 26, 2019
Email interview with Dwight Duncan, University of Massachusetts law professor who serves on the the boards of the Pro-Life Legal Defense Fund and Massachusetts Citizens for Life, Feb. 26, 2019
Email interview with Teresa S. Collett, law professor at the University of St. Thomas and director of the university’s Prolife Center, Feb. 26, 2019
Email interview with Gretchen Ely, associate professor at the University of Buffalo’s School of Social Work and a board member for Social Workers for Reproductive Justice, Feb. 26, 2019
Email interview with Arthur Caplan, bioethicist at New York University Langone Medical Center, Feb. 27, 2019
Email interview with Leslie Francis, director of the Center for Law and Biomedical Sciences at the University of Utah who also serves as a member of the ethics committee of the American Society for Reproductive Medicine and previously served as a director of the Disability Law Center, Feb. 27, 2019
Email interview with Douglas O. Linder, emeritus law professor at the University of Missouri-Kansas City, Feb. 27, 2019
Email interview with Mary Ziegler, Florida State University law professor and author of the books Beyond Abortion: Roe v. Wade and the Fight for Privacy and After Roe: The Lost History of the Abortion Debate, Feb. 26, 2019
Email interview with Dan Yoken, spokesman for Chuck Schumer, Feb. 26, 2019
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