House Dem introduces born alive amendment to protect infants who survive abortions

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Rep. Tulsi Gabbard, D-Hawaii, appears to be defying her party's leadership again as she introduced a law mandating medical care for infants who survive abortions, a measure that appeared to be similar to one her party blocked earlier this year.

Introduced on Wednesday, H.R. 8923 would amend U.S. criminal code "to ensure a health care practitioner exercises the proper degree of care in the case of a child who survives an abortion or attempted abortion."

The brief amendment resembled legislation pushed by Sen. Ben Sasse, R-Neb., and Rep. Ann Wagner, R-Mo., earlier this year. Both the Senate and House Democrats rejected the bill, which would have imposed penalties on doctors who refused to provide lifesaving medical care to abortion survivors.

Democrats have generally argued that legislation is redundant as the Born Alive Infant Protection Act of 2002 already guarantees care for babies who survive abortions. That particular bill clarified that born alive children had the same rights as others, but didn't directly apply penalties in the statute itself.

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Like Sasse's and Wagner's legislation, Gabbard's would seem to apply criminal penalties. Although the text is limited, it clarifies that it seeks to amend title 18 of U.S. code.

In September, President Trump signed an executive order applying EMTALA, which mandates emergency medical care, as benchmarks for whether federally-funded programs are in compliance. 

Laws like Trump's are generally intended to protect individuals like Gianna Jessen who claims to have survived a botched saline abortion. The Centers for Disease Control (CDC) reported that between 2003 and 2014, 143 infants were born alive during abortion attempts. 

"[I]t is possible that this number (143) underestimates the total number of deaths involving induced termination," the CDC noted. "In some cases, when a vague term such as “termination of pregnancy” was reported as due to a severe congenital anomaly or maternal complication, it was impossible to determine whether the pregnancy terminated spontaneously as the result of the anomaly or complication, or whether the mother elected to terminate because of the anomaly or complication."

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Democrats for Life, which has chastised its party's leftward drift, praised Gabbard and set up a petition supporting her. Gabbard, who caught headlines for criticizing former Secretary of State Hillary Clinton, indicated last year that she supported restricting abortions in the third trimester. However, she's also said she supports codifying Roe v. Wade, which pro-life advocates say effectively allows abortion up till birth.

The issue featured prominently in Republicans' political messaging after Virginia Gov. Ralph Northam indicated in 2019 that doctors should be able to refuse life-saving care to infants who survive abortions. “When we talk about third-trimester abortions... it’s done in cases where there may be severe deformities. There may be a fetus that’s nonviable," he said.

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“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.”

Outside of Northam's comments, recently released testimony from David Daleiden's civil trial has revealed that Planned Parenthood saw at least one infant born after an abortion, and may have seen more.