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S. 311 (116th): Born-Alive Abortion Survivors Protection Act

Almost every Senate Republican has cosponsored this pro-life bill.


The pro-life movement’s most recent concern has become Democrats’ supposed willingness to kill fetuses which survive abortion attempts, sparked by comments made by Virginia’s governor.

Gov. Northam said during a radio interview that under a proposed Democratic-led bill, an infant who survived an abortion attempt “would be resuscitated if that’s what the mother and the family desired.”

Some took that to mean that if it’s not what the family desired, the fetus would be killed or left to die by a doctor — even though that’s not what the governor said, and after an outcry the governor’s office quickly clarified that conclusion was a complete misinterpretation.

Nonetheless, Republicans are now solidifying around a bill to punish doctors who do not attempt resuscitate a fetus.

What the bill does

The Born-Alive Abortion Survivors Protection Act would imprison any doctor or health care practitioner found to have not adequately cared for a fetus that survived an abortion attempt.

Specifically, it requires that any medical professional “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child” as would be done for a naturally newborn child.

It also requires the medical professional to transport and admit the fetus to a hospital immediately following emergency care.

Failure to follow those provisions could result in a prison sentence of up to five years. However, the mother who sought an abortion cannot be criminally prosecuted.

It was introduced in the Senate on January 31 as bill number S. 311 by Sen. Ben Sasse (R-NE), and in the House on February 5 as bill number H.R. 962 by Rep. Ann Wagner (R-MO2).

What supporters say

Supporters argue that the bill protects children who are already born, even if they’re only mere seconds old — and is thus a completely different issue than abortion rights, which deal with children not yet born.

“I have been horrified to watch radical Democratic legislators argue that babies who survive abortions should not be given the same level of medical care that all other newborn babies receive.” Rep. Wagner said in a press release. “Congress must act to protect those who cannot protect themselves.”

“[The bill] merely ensures that babies who survive abortions receive immediate, lifesaving care — just as any other baby would,” Rep. Wagner continued. “To my colleagues, this is the simplest vote you will ever take: either you support babies being killed after they are born or you don’t. It is time to go on the record and make clear if you think babies born alive deserve medical care, or if you think they should be left to die.”

What opponents say

Opponents counter that this bill, while it sounds well-intentioned, is actually intended as a precursor to repealing Roe v. Wade. They also say the bill is based on a falsehood that the practice of killing fetuses (or letting them die) after surviving an abortion attempt is widespread — or even really existent at all.

“We must call out today’s vote for what it is: a direct attack on women’s health and rights,” Planned Parenthood President Leana Wen, M.D. said in a statement. “This legislation is based on lies and a misinformation campaign, aimed at shaming women and criminalizing doctors for a practice that doesn’t exist in medicine or reality.”

“The sponsors of this legislation have one goal and one goal only: to take away the right to safe, legal abortion,” Wen continued. “In the last eight years, more than 400 state restrictions on access to safe, legal abortion have gone into effect, and this is yet one more attempt.”

Odds of passage in the Senate

With 50 Senate cosponsors, all Republicans, plus the Republican main sponsor, that means 51 of the 53 Senate Republicans have signed on. The only two who haven’t: Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK).

A Senate motion on February 25 to invoke cloture, meaning floor debate is ended so that a straight up-or-down vote can be taken on the bill, received more yes votes than no votes — 53 to 44 — but that fell short of the ⅗ required to proceed. The Senate can still attempt again, though.

Every voting Republican voted in favor, 50–0, while Democrats largely opposed 3–42. The three supportive Democrats were Sens. Bob Casey (D-PA), Doug Jones (D-AL), and Joe Manchin (D-WV).

Odds of passage in the House

Similarly in the House, almost every Republican has signed on there: 178 Republicans out of 198), plus three House Democrats: Reps. Henry Cuellar (D-TX28), Daniel Lipinski (D-IL3), and Collin Peterson (D-MN7).

A previous version passed the House last year under Republican control, 241 to 183. Republicans unanimously supported by 235–0, while Democrats almost completely opposed 6–183.

Last updated Mar 26, 2019. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 31, 2019.

Born-Alive Abortion Survivors Protection Act This bill establishes requirements for the degree of care a health care practitioner must exercise in the event a child is born alive following an abortion or attempted abortion.

A health care practitioner who is present must (1) exercise the same degree of care as reasonably provided to another child born alive at the same gestational age, and (2) immediately admit the child to a hospital. The bill also requires a health care practitioner or other employee to immediately report any failure to comply with this requirement to law enforcement.

A person who violates the requirements is subject to criminal penalties—a fine, up to five years in prison, or both.

Additionally, an individual who intentionally kills or attempts to kill a child born alive is subject to prosecution for murder.

The bill bars the criminal prosecution of a mother of a child born alive for conspiracy to violate these provisions, for being an accessory after the fact, or for concealment of felony.

A woman who undergoes an abortion or attempted abortion may file a civil action for damages against an individual who violates this bill.