Did 41 Democrats Vote Against ‘Protecting Already Born Babies’?

In February 2020, pundits and blogs launched a round of invective against Democratic Party lawmakers after a bill targeting healthcare providers fell short of garnering enough votes for debate on the Senate floor.

The latest salvo followed a cloture vote regarding the “Born-Alive Abortion Survivors Protection Act,” a bill proposed by Nebraska Republican Sen. Ben Sasse that he claimed would protect “abortion survivors” — live births allegedly taking place after an abortion procedure. The bill required 60 votes to move forward, but fell short after 41 Democrats voted to block it. Three Democrats joined with all 53 Republican senators in voting for it. It also failed to advance in the Senate in 2019.

The measure would have required healthcare professionals to “exercise the same degree of professional skill, care, and diligence to preserve the life and health” of a child carried to term in those circumstances as they would in a regular birth. The penalty for failing to do so would be up to five years in jail.

In arguing for the bill, Sasse claimed that its opponents were misrepresenting it by calling it another instance of the GOP attempting to limit access to abortion procedures. “There’s nothing in the bill that’s about abortion. Nothing,” he said before the cloture vote. “It’s about infanticide. That’s the actual legislation.”

In reality, abortions under those circumstances account for 1.4 percent of all abortions, and abortions after 24 weeks — which are typically undergone either to protect the mother’s life or because the fetus has a fatal condition — occur in less than 1 percent of all abortions.

Medical professionals have also offered rebukes to Sasse’s take. Kristyn Brandi, the board chair for the healthcare advocacy group Physicians for Reproductive Health and OB-GYN, criticized supporters of the bill for describing births following abortions after a fetus has gestated for more than 21 weeks as children being “born alive” after “botched abortions.”

“These terms are insulting to doctors that provide compassionate care to their patients​ and to the patients receiving care,” Brandi told Rewire News, which focuses on reproductive health. “More importantly, they are insulting to the real-life experiences of families that need this care. What this bill does is create a vehicle for false narratives and inflammatory language around abortion ​built to further stigmatize abortion care and the patients needing it.”

In a separate statement opposing the bill, the American College of Obstetricians and Gynecologists said that it “uses dangerous rhetoric that undermines the public trust in obstetrician-gynecologists, stigmatizes necessary health care for women, and callously disregards the tragedies and difficult decisions women and their families face.”

The bill’s emergence followed a disinformation attack against Virginia Governor Ralph Northam (D) in 2019 concerning state House Bill 2491, which would have eased restrictions on third-trimester abortions. Northam was asked during a radio interview what would happen in the event of a birth following an abortion. “The infant would be resuscitated if that’s what the mother and the family desired,” he said at the time. “And then a discussion would ensue between the physicians and the mother.”

The bill was tabled in the state House of Delegates in January 2019. Republicans, including United States President Donald Trump, would go on to spin Northam’s remark as him (and by extension, the Democratic Party as a whole) endorsed “executing babies.”

But as the New York Times reported, late-term procedures do involve preservation of life:

For instance, a condition called pre-eclampsia, involving high blood pressure and other problems, can kill both mother and fetus, and in most cases the only treatment is to deliver the baby. If it seems unlikely that the baby will survive, the family may choose to provide just comfort care — wrapping and cuddling the baby — and allow the child to die naturally without extreme attempts at resuscitation.

A 2002 law, the Born-Alive Infants Protection Act, already extends legal protections to children born at any stage of a pregnancy.

Update, 4/20/2022, 2:33 PM (bb): A regional variation on this conspiracy theory has motivated a “convoy” of far-right activists to harass lawmakers in California over a bill shielding people who have had abortions, following a cascade of states attempting to criminalize or threaten the procedure. As the Sacramento Bee reported:

One such bill, Assembly Bill 2223, authored by Assemblywoman Buffy Wicks, D-Oakland, aims to shield women and other birthing people from criminal and civil liability in the event of a miscarriage, self-induced or criminal abortion or infant death due to pregnancy-related causes.


Neither the language of the bill, nor the lawmaker’s stated intent, supports the allegation that AB 2223 would decriminalize infanticide. The proposed statute specifies that no one shall be subject to a civil or criminal penalty based on their actions with respect to their pregnancy or pregnancy outcome, “including miscarriage, stillbirth, or abortion, or perinatal death due to a pregnancy-related cause.”