Live Birth Abortions: What Legal Boundaries Exist?

The topic of live birth abortions is a highly controversial and sensitive issue that has sparked intense debates and legislative discussions in recent years. Live birth abortions, also known as partial-birth abortions, refer to procedures where a substantial portion of the living child is delivered outside the mother's body before being killed. This practice has been described as crossing the line from abortion to infanticide. While infanticide is illegal in all 50 states, laws regarding live birth abortions are more complex and subject to varying interpretations. Some states have introduced bills such as the Born-Alive Abortion Survivors Protection Act, which aims to protect infants born alive after an abortion attempt by requiring healthcare practitioners to provide appropriate medical care. However, the enforcement and interpretation of these laws vary, and the topic remains a highly divisive issue in American politics.

Criminal penalties for health practitioners who don't provide certain medical care

In 2019, the "Born-Alive Abortion Survivors Protection Act" was proposed by Republican Senator Ben Sasse. This bill would have amended the federal criminal code, instituting penalties and jail time for health care practitioners who don't provide certain medical care in the case of an abortion or attempted abortion that results in a live birth. The bill would have required health care practitioners to exercise the same degree of professional skill and care to protect the newborn as they would for any other child born alive at the same gestational age. Violators of the bill could have faced fines and/or jail time of up to five years.

While the bill did not pass, it sparked a debate about the role of health care practitioners in providing medical care for infants born alive during abortion procedures. Some argued that the bill was unnecessary, as existing homicide laws already criminalize the intentional killing of a baby. Additionally, a 2002 born-alive bill had reaffirmed that infanticide is illegal in every state.

However, others supported the bill, arguing that it was necessary to protect newborn babies and ensure they receive proper medical care. The bill's proponents pointed to situations where there may be a "backing away" from providing medical interventions for a baby born alive during an abortion.

The issue of criminal penalties for health care practitioners who don't provide certain medical care in the case of live birth abortions remains controversial. Some physicians have expressed concern about the lack of clarity and confusion surrounding the laws and exceptions, which has had a chilling effect on emergency care. There have been reports of women experiencing pregnancy complications being turned away from hospitals due to fear that performing an abortion would be illegal.

To date, no physician has been criminally prosecuted for providing an abortion due to a medical emergency. However, the fear of repercussions, including the loss of medical licenses, lawsuits, and criminal charges, has impacted doctors' willingness to provide needed emergency care.

Reporting requirements for knowledge of violations

The "Born-Alive Abortion Survivors Protection Act" outlines specific reporting requirements for anyone with knowledge of violations of the act's provisions. This act, introduced in 2023, establishes requirements for the degree of care a health care practitioner must provide in the case of a child born alive following an abortion or attempted abortion.

The act mandates that a health care practitioner or any other employee who has knowledge of a failure to comply with the degree-of-care requirements must immediately report such failure to law enforcement. This provision ensures that any deviations from the mandated standards of care are brought to the attention of the appropriate authorities without delay.

The consequences for failing to report such violations are significant. According to the act, a health care practitioner or employee who fails to report a failure to comply with the degree-of-care requirements is subject to criminal penalties. These penalties can include a fine, imprisonment of up to five years, or both.

The act also specifies that an individual who intentionally kills or attempts to kill a child born alive is subject to prosecution for murder under existing federal law. This provision further emphasizes the seriousness of violations and the importance of reporting them to the appropriate authorities.

Additionally, the act bars the criminal prosecution of the mother of a child born alive under this act. Instead, it allows the mother to bring a civil action against a health care practitioner or other employee for violations of the act's provisions. This aspect of the act protects the mother from legal repercussions while providing her with a means to seek justice and accountability.

The reporting requirements outlined in the "Born-Alive Abortion Survivors Protection Act" are designed to deter violations, encourage prompt reporting, and provide avenues for accountability and justice in cases where violations occur.

Bans on prosecuting mothers

Protecting Mothers from Prosecution:

It is widely recognized that mothers should not be prosecuted for live-birth abortions. This protection is included in various state laws and policies, ensuring that women are not penalized for making difficult decisions regarding their health and pregnancies.

Focus on Healthcare Providers:

While mothers are generally shielded from prosecution, healthcare providers often face legal consequences for performing abortions. This can create a chilling effect, deterring doctors from providing abortions even in cases where it is legally permitted, out of fear of potential repercussions.

The Impact on Women's Health:

The lack of prosecution for mothers aims to remove barriers to accessing reproductive healthcare. By not criminalizing mothers, laws recognize the complex and personal nature of abortion decisions, ensuring that women can seek the medical care they need without fear of legal repercussions.

Mental Health Considerations:

Abortion restrictions can have significant mental health implications for women. Denying access to abortion or creating legal barriers can lead to increased psychological distress, especially for those facing unwanted pregnancies or experiencing mental health issues.

Addressing Inequalities:

International Human Rights Obligations:

By shielding mothers from prosecution, states uphold their international human rights obligations. These include the rights to life, health, privacy, liberty, and freedom from torture, ensuring that women's fundamental rights are protected during pregnancy and childbirth.

Civil action against health practitioners

The "Born-Alive Abortion Survivors Protection Act" outlines the civil action a mother can take against health practitioners. The act, sponsored by Republican Sen. Ben Sasse, would amend the federal criminal code to institute penalties and jail time for health care practitioners who don't provide certain medical care in the case of a child born alive following an abortion or attempted abortion.

The act specifies that a mother cannot be prosecuted under the bill and allows her to bring a civil action against health care practitioners who violate the legislation. This means that if a health care practitioner does not provide the required standard of care for a child born alive following an abortion or attempted abortion, the mother can take legal action against them.

The act requires that a health care practitioner present at the time of birth must exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as they would for any other child born alive at the same gestational age. This includes immediately transporting and admitting the child to a hospital. Violators of this requirement can be fined and/or jailed for up to five years.

The act also includes a reporting requirement for anyone with knowledge of such violations. This means that health care practitioners or other employees who know of a failure to comply with the degree-of-care requirements must immediately report it to law enforcement. Failure to report such violations is also subject to criminal penalties, including fines and/or jail time of up to five years.

Existing homicide laws

In 2002, the "Born-Alive Infants Protection Act" was passed, reaffirming that "infanticide is already illegal in every state". The act defined a "person" as "every infant member of the species homo sapiens who is born alive at any stage of development". It also defined "born alive" as the "complete expulsion or extraction from his or her mother" of an infant who, after expulsion or extraction, breathes or has a beating heart, a pulsating umbilical cord, or definite movement of voluntary muscles.

In 2023, the "Born-Alive Abortion Survivors Protection Act" was introduced, which would amend the federal criminal code by instituting penalties and jail time for health care practitioners who don't provide certain medical care in the case of a child born alive following an abortion or attempted abortion. The bill would require health care practitioners to exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as they would for any other child born alive at the same gestational age. It would also require that the child be immediately transported and admitted to a hospital. Violators could be fined and/or jailed for up to five years.

The bill also specifies that an "intentional killing" through an "overt act" would be punishable under existing federal law on murder. Additionally, mothers would be barred from prosecution under the bill and allowed to bring a civil action against health care practitioners who violate the legislation.

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