On Wednesday, the Kansas state Senate advanced a bill based on the misleading notion that fetuses are sometimes born "alive" after an abortion. The bill now sits on the governor's desk awaiting approval, months after Kansans voted to uphold abortion care protections in the state.
Meanwhile, critics say that the very name of the bill is a ruse designed to trick the public into believing that viable fetuses are often literally killed after emerging alive from a pregnant person's body.
Colloquially known as the "born alive" bill, legislation HB 2313 would add new criminal penalties in Kansas. In the Kansas legislation, Kansas lawmakers propose that healthcare providers or employees who are present for an abortion have to "exercise the same degree of professional skill, care and diligence to preserve the life and health" of a fetus, if born alive.
"Born alive" is defined as breathing or having a beating heart, the pulsation of an umbilical cord, and voluntary movement of the muscles — regardless of if the umbilical cord has been cut or not. Expulsion of the fetus in the bill is defined as "a result of natural or induced labor, cesarean section or induced abortion."
The bill also states that anyone who performs "an overt act that kills a child who is born alive during an abortion or attempted abortion" will be guilty of a felony.
In as statement to Salon, Anamarie Rebori-Simmons, the communications director for Planned Parenthood Great Plains Votes, a Kansas-based branch of the advocacy group, said the legislation is "ill-informed," "unnecessary," and drives "a false narrative that further shames and stigmatizes essential reproductive health care."
"Trusted medical providers already follow existing laws while offering the highest standards of care," Rebori-Simmons said. "This is just another instance where politicians are putting themselves directly between the patient and provider."
Indeed, it is not the first time a bill with such language has been proposed or passed in the United States. In 2002, former president George W. Bush signed H.R. 2175, which granted infants "born alive" protections, but it did not mandate care or include penalties for physicians. Yet over the last few years, bills at the state level — like the one in Kansas — have been surfacing, and which require enforcement of criminal penalties.
In November 2022, Montana voters rejected a similar bill to the Kansas one, where physicians could have faced penalties of up to 20 years in prison. In 2022, Missouri state House members proposed a bill with the same title and similar language. Recently, Republican Congresswoman Ann Wagner of Missouri reintroduced the Born-Alive Abortion Survivors Protection Act at the federal level.
"Essentially what this type of legislation describes to voters is that there are abortions that are being performed across the country where a neonate is born alive, and not provided resuscitative care and kind of left to die."
As Rebori-Simmons noted, the Kansas legislation is yet another example of "political theater at the expense of Kansans and their health and well-being," in part because a viable fetus surviving an abortion never happens. In other words, the very name of the bill is a sort of rhetorical sleight-of-hand.
"Essentially what this type of legislation describes to voters is that there are abortions that are being performed across the country where a neonate is born alive, and not provided resuscitative care and kind of left to die," Dr. Timothy Mitchell, maternal fetal medicine physician in Montana, told Salon. Yet such a thing simply "does not occur in modern abortion procedures and in reproductive health care practices," he continued.
Indeed, abortions at or after 21 weeks are very uncommon; they represent an estimated 1 percent of all abortions in the United States, where fetus viability happens at 24 weeks gestation. These late-term abortions usually occur due to a lethal fetal anomaly — perhaps one found in a routine anatomy scan, which happens at around 20 weeks of pregnancy — or when a woman's life is in danger from her pregnancy. Many firsthand accounts of these situations have been publicly shared in various media outlets, and show what a difficult and heartbreaking experience a late-term abortion can be for a family.
Mitchell told Salon that if a law like this passes, it could yield yet more harmful to people with high-risk pregnancies.
"If you have a pregnancy that is complicated by lethal fetal anomalies, where despite all of the resources that we have, and everything we do for that little one, it's not going to change the outcome," Mitchell said. "Born alive bills prevent families from being able to say goodbye in a way that they would like to, because it forces a family or forces the physician to intervene with the inevitable process, and attempts to provide resuscitative efforts at risk of going to jail."
Dr. Kristyn Brandi, Darney Landy Fellow at the American College of Obstetricians and Gynecologists (ACOG), told Salon that born alive bills are "misleading" because they equate abortion with infanticide — something that "couldn't be farther from the truth."
Such laws prevent providers from giving "end-of-life or palliative care to fetuses with conditions that are not compatible with life."
"This is also harmful to pregnant people because these laws inadvertently prevent other types of labor care from happening," Brandi said. She said that such laws prevent providers from giving "end-of-life or palliative care to fetuses with conditions that are not compatible with life."
Brandi called the bill "cruel" and "heartbreaking," adding that such bills are able to gain support because the heavy stigma around abortion creates an environment of misinformation.
"The vast majority of abortion care works with a set of pills that you take at home or a five minute outpatient procedure – nothing like what these bills describe," Brandi said. "They also disregard that doctors that provide abortions often also provide prenatal and labor care — [but] we know the difference and are able to help patients navigate the care they need safely and with compassion."
