This story first published online at N.C. Policy Watch.
The N.C. Senate passed a new version of legislation Tuesday that would require doctors to attempt to save the life of any child born as the result of a failed abortion.
Senate Bill 405, the “Born-Alive Abortion Survivors Protection Act,” is a slightly amended version of a measure vetoed in 2019 by Gov. Roy Cooper. It is expected to pass in the state House and again face a veto Republicans in the General Assembly do not have the votes to overturn.
In tense and sometime emotional debate on the Senate floor Tuesday, Republican Senators told anecdotal stories of infants born after attempted abortions left to die and read testimony from people who said they themselves survived failed abortions.
Democrats said the testimony of survivors does not prove that there is an epidemic of infants being born alive and left to die by uncaring doctors and nurses. Rather, it strengthens the argument that in the rare cases in which children survive failed abortions, medical professionals are already doing their duty to care for infants in their charge.
“There are already state and federal laws that protect newborns,” said Sen. Natalie Murdock (D-Durham). “Further, physicians are obligated by medical ethics and licensing regulations to provide appropriate medical treatment just as they are for all types of people. Failure to do so in the manner suggested by this bill could result in loss of credentials, supervision, revocation of their medical license, a malpractice lawsuit and even criminal charges.”
Murdock, whose mother was a pediatric nurse, said Republicans who oppose abortion are attempting to involve themselves in the difficult and complex decisions about care and viability that should be the province of the families and doctors.
Democrats called the bill a stealth challenge to the Supreme Court’s landmark Roe v. Wade decision, which established a right to legal abortion. It further stigmatizes the practice, they said, and demonizes doctors who perform the procedure – sometimes in circumstances where the survival of the child is not possible.
Republican Senators said that’s not true, denying that the bill has anything to do with attempts to limit access to legal abortion or overturn Roe v. Wade.
“My entire adult life, whenever I hear folks talk about abortion, the first thing I always hear is ‘my body, my choice,’” said Sen. Todd Johnson (R-Union). “Hadn’t heard much about that in the last year when we’ve been talking about mask mandates and vaccine mandates, but it’s still something I’ve heard my entire life. Let’s be clear: we’re not talking about abortion. We’re talking about a child that is completely separate from the body of its mother. So that begs this one question I’d like each one of you to think about. If somebody has an answer for me, I’d love to have it. When do human rights begin? How old do you have to be to have human rights? Is it five minutes? Is it five months? Is it five years? A child that is separated from its mother has rights immediately. And all this bill does is mandates that a doctor take care of a living human being.”
But legal experts say a variety of laws already exist to protect infants born under these conditions. They range from the Equal Protection and Due Process Clauses of the U.S. Constitution and the federal Child Abuse Prevention and Treatment Act (CAPTA) to the Born-Alive Infants Protection Act passed by Congress in 2002.
Debate on the legislation this week has been tinged with the language of the culture war over legal abortion in America that has raged for decades. Proponents of the bill have cast it in religious and political terms, with Senators repeatedly referring to the “so-called right to abortion” during debate and political allies arguing bills like S405 are necessary precisely because the courts have rejected Republican efforts to further limit access.
“This bill is even more important now that our 20-week limit on abortion has been challenged in court by Planned Parenthood and the ACLU,” said Tami Fitzgerald, executive director of the NC Values Coalition, in a Tuesday committee meeting on the bill. “Because of that lawsuit abortions can be performed up to birth because the abortionist is allowed to determine when the baby is viable under the lower court’s ruling. Unless the lower court’s ruling is overturned, more babies will be born alive during abortions in North Carolina.”
Susanna Birdsong, North Carolina Director of Public Affairs for Planned Parenthood’s South Atlantic region, called the bill “an attack on medical providers, particularly doctors who provide care to patients experiencing complex pregnancies.”
“This bill is a complete waste of time and taxpayer resources and another distraction from the fact that state lawmakers have not prioritized legislation that would expand access to health care for low-income North Carolinians, improve maternal mortality in the state, or provide workplace accommodations for people who are pregnant,” she said in a Wednesday statement.
The bill passed the Senate on a party-line vote, 28-21. It now heads to the House, where another party-line vote is expected.
The “Born-Alive” bill is one of two abortion-related bills in play this legislative session.
The other, House Bill 453, would prohibit a doctor from performing an abortion if a pregnant woman wants one due to the race of the fetus or the detection of Down syndrome during pregnancy.
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