Kansas health care providers could face criminal charges over accusations about their care of newborns delivered during certain abortion procedures after the Republican-controlled Legislature on Wednesday overrode Democratic Gov. Laura Kelly's veto of their legislation.
The new law takes effect July 1 and will require that heath care providers “exercise the same degree of professional skill, care and diligence” to preserve the health of newborns delivered during an abortion procedure that a “reasonably diligent and conscientious” provider would with other live births. The newborns will have to be transported to a hospital, and violating the law will be a felony, punishable up to a year’s probation for a first-time offender.
GOP lawmakers and anti-abortion groups pushed for the new rule and other anti-abortion measures even though a decisive statewide vote in August 2022 affirmed abortion rights. Abortion opponents argued that voters still left room for “reasonable” restrictions, while abortion rights lawmakers said the bills broke faith with voters.
The new measure may be largely symbolic: Providers say the cases covered by the new law rarely, if ever, occur in Kansas because of how the state already regulates abortion. But abortion rights advocates also see the law as designed to sow confusion and fear so that doctors don't want to provide abortion care and women are afraid to seek it.
“The words in these laws do not have any kind of real meaning," said Elisabeth Smith, state policy and advocacy director for the Center for Reproductive Rights, which defends access to abortion. "Doctors and hospitals and clinics that are trying to interpret them don't know what they mean and they don't know how a prosecutor or a district attorney will be reading those laws.”
The Kansas law is similar to laws in at least 18 other states requiring that such newborns go to a hospital while also imposing criminal penalties for doctors who don’t provide the same care other providers would other live births. In Montana, voters rejected a proposed “born alive” law in November 2022.
Abortion opponents argued that the new law is a commonsense measure that protects newborns.
“We do have a culture of death,” said Republican state Rep. Ron Bryce, a southeastern Kansas physician. “The value of life is of the utmost importance.”
The votes on overriding Kelly's veto were 87-37 in the House and 31-9 in the Senate, with two-thirds majorities needed.
Jeanne Gawdun, who lobbies for Kansans for Life, the state's most influential anti-abortion group, said lawmakers “stood together for compassion and basic human decency.”
The House voted 84-40 and 86-38 to overturn those vetoes, and the Senate is expected to vote on overriding them Thursday.
The U.S. Supreme Court ruled in June 2022 that the U.S. Constitution allows states to ban abortion. But the Kansas Supreme Court ruled in 2019 that under the state constitution, access to abortion is a matter of bodily autonomy and a “fundamental” right. The statewide vote last year — the first state referendum after the U.S. Supreme Court decision — rejected stripping out protection for abortion access out of the Kansas Contitution.
But abortion opponents and Republican lawmakers have argued that Kelly's stance on abortion is too far to the left, even after last year's vote. House Speaker Dan Hawkins, a Wichita Republican, said Wednesday's rebuke was for “the most radical in the pro-abortion movement.”
As Rep. Clark Sanders, a Republican from central Kansas, called the veto an “egregious wrong," Rep. Stephanie Clayton, a Kansas City-area Democrat, took a bathroom break.
She muttered outside the chamber, “I’m not going to listen to some old guy telling me how my body works.”
The new law includes a requirement for providers to file annual reports with the state health department on infants “born alive” during abortion procedures. Like most states, Kansas doesn't collect such statistics.
Abortion opponents argue that there are likely hundreds of newborns delivered during abortion procedures each year in the U.S. Anti-abortion groups extrapolate from data from the handful of states requiring reports of such live births and data from most Canadian provinces.
“It is proper to offer medical care to a living, breathing, heart-beating, muscle-moving human being,” Sanders told his colleagues.
But abortion rights supporters are skeptical because Kansas bans most abortions at the 22nd week. None past that point have been reported in the state since 2016.
The American College of Obstetricians and Gynecologists says almost no infants survive if they are born before 23 weeks. Providers sometimes induce labor to deliver a fetus early if it has a severe medical problem, expecting death to follow within minutes or even seconds.
Abortion opponents argue that the new law only applies when abortion procedures are involved, but abortion rights advocates argue that doctors may worry it can be applied more broadly and then order futile medical care for a full-term but dying newborn.
“Symbolic in the abortion context,” Smith of the Center for Reproductive Rights said, describing the law. “Potentially very harmful in a limited number of cases where people, last moment with a dying infant, could be affected.”
