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Sen. Ben Sasse (R.-Neb.), sponsor of the Born-Alive Abortion Survivors Protections Act (AP) Sen. Ben Sasse (R.-Neb.), sponsor of the Born-Alive Abortion Survivors Protections Act (AP)

Sen. Ben Sasse (R.-Neb.), sponsor of the Born-Alive Abortion Survivors Protections Act (AP)

Noah Y. Kim
By Noah Y. Kim September 1, 2020

Facebook post mischaracterizes Democratic senators’ vote on abortion bill

If Your Time is short

•. A Senate bill proposes a uniform, nationwide obligation on health care practitioners to provide medical care to babies born after failed abortion attempts, with possible prison time for violators. 

• The bill has not yet been brought to the Senate for a vote.

• Most Democratic senators oppose the bill, citing  federal and state laws that already guarantee the protections established in the bill.

A viral image says that 41 senators voted " to let babies scream until they die if born alive," paying special emphasis to  Sen. Kamala Harris, now the Democratic vice presidential nominee. 

The image lists the names of 44 Democratic senators, with Harris’ name circled in red. A caption above the image reads: "These are the 41 sickos who voted to let babies scream until they die if born alive."

The image cites SB 311, the Born-Alive Abortion Survivors Protections Act, which would establish requirements for the care that practitioners must provide to an infant born after a failed abortion attempt, and include possible prison time for anyone who doesn’t meet the standards. 

Many Democratic senators have said they do not support the bill, and most of them voted to block its progress through the Senate. 

The effect of their vote was not to allow practitioners to let doctors and parents to leave babies to die, but to preserve the legal status quo, which already considers infants to be humans protected under the law. 

Parsing the votes on SB 311

When this Aug. 18 post was made, the Senate had not brought the bill to the floor for a final vote. 

The senators listed in the post are those who voted no on a cloture motion, a procedural proposal that would have moved it toward a final vote in the Senate. 

There have been two failed cloture votes on the bill so far, one in February 2019 and one in February 2020. During the first vote, 44 Democratic senators voted no, and on the second, 41 voted no. All 53 Republicans voted in favor of the motion both times. 

A cloture vote needs 60 votes to pass, so the bill stalled in the debate stage. 

The image in the Facebook post lists 44 names, including Sens. Amy Klobuchar, Elizabeth Warren and Bernie Sanders, who were absent during the second vote. (Sanders is an independent in the Senate). However, the caption above it references "41" who voted no.

Image inaccurately describes bill’s content

In either case, the image mischaracterizes both the content of the bill and the effect of the Democratic senators’ votes. 

Under SB 311, health care practitioners must treat a baby born after an attempted abortion as they would any other newborn, and immediately admit the child to the hospital. A person who violates these terms would be subject to criminal penalties, including a fine and/or up to five years of prison. A person who kills an infant after a failed abortion would be subject to prosecution for murder. 

Senate Republicans cast the bill as "anti-infanticide legislation," describing it as a simple choice between leaving infants to die or protecting them under the law. "Everyone in the Senate ought to be able to say unequivocally that killing that little baby is wrong. This doesn't take any political courage," the bill’s sponsor, Ben Sasse, R-Neb., said on the Senate floor. 

Some Democrats called the bill a case of government overreach that took decisions out of the hands of parents and medical professionals. They noted that it would apply to a small number of abortions that involve complex and difficult factors that often can’t be anticipated, such as cases where the mother’s life would be at risk or where an infant has been born with a terminal disease. 

According to the Guttmacher Institute, 43 states have banned "some abortions after a certain point in pregnancy." In 2016, procedures performed in the 21st week of gestation or later accounted for 1.2% of all abortions. Deaths involving babies born alive after an attempted abortion are even rarer. A report by the Centers for Disease Control and Prevention that looked at death certificates for infants from 2003-2014 showed "143 deaths involving induced terminations" during that 12-year period. Of these deaths, 97 involved a "maternal complication, or one or more congenital anomalies." 

However, the CDC report acknowledged that this number could be an underestimate due to vague wording on some death certificates. 

Sen. Tammy Duckworth (D-Ill.), whose name is included in the Facebook post, said the legislation "would force doctors to perform ineffective, invasive procedures on fetuses born with fatal abnormalities … even if it’s against the best interests of the child." 

Most of the bill’s Democratic opponents explained their votes by noting that existing federal law and most states’ laws already provide protections for babies born alive after abortion attempts. 

Sen. Tim Kaine, D-Va., for example, cited the murder conviction of Dr. Kermit Gosnell, who was sentenced to life in prison in 2013 for killing live-born infants after botched abortions at his Philadelphia clinic. Prosecutors in the case cited a Pennsylvania state law that says a baby delivered during an abortion and showing signs of life is considered alive, according to the New York Times. 

Laws on duty of care

Snopes found that 34 states currently have laws that explicitly affirm a duty of care for  infants and enforce penalties for failing to provide that care. 

At the federal level, the Born-Alive Infants Protections Act, which President George W. Bush signed into law in 2002, defined "born alive" infants as human persons, subject to the same legal protections as any other child. Under this definition, anyone who kills an infant after a failed abortion can be prosecuted for murder, and health care practitioners are obligated to provide the same level of care they would give to any other infant. 

But the 2002 law did not explicitly set out any federal penalties for health care practitioners who don’t provide such care, beyond those now in effect in 34 states. SB 311 would set a uniform standard for all 50 states. 

Mary Ziegler, a law professor at Florida State University, told PolitiFact that even in the 16 states that do not lay out an affirmative duty of care, leaving a baby to die would be considered a murder by omission.

"If you had an elderly adult and you decided to starve them to death, that would be a homicide. Once a child is born alive, the same rules apply to them," said Ziegler. 

SB 311 would come into play only during the rare and extremely complex cases where the facts of an attempted abortion are disputed. 

"When you have an alleged infanticide, it’s a he-said-she-said situation, where an abortionist says that an infant was not born alive and prosecutors said she was," Ziegler said. "Many of these cases end in mistrials because the jury simply doesn’t know what took place." 

The bill would make these prosecutions easier by placing responsibility for an infant’s health more squarely on the abortionist. 

Our ruling

A viral image says that 41 senators voted "to let babies scream until they die if born alive," paying special emphasis to Harris. 

The image mischaracterizes the votes that have been conducted on the Born-Alive Abortion Survivors Protections Act and the effect of the legislation on protections for infants born following abortion attempts. 

In voting against cloture, Democratic senators didn’t vote to roll back protections for live-born infants but rather to keep them as they are. So the Facebook post’s claim that their vote allowed parents and doctors to let infants "scream until they die" exaggerates the effect of their vote. 

We rate this post False. ​

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Facebook post mischaracterizes Democratic senators’ vote on abortion bill

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