“Born-Alive Abortion Survivors Protection Act” advances, setting up veto fight

An abortion-related bill is on its way to the Senate floor this week — and likely headed for a veto.

Senate Bill 405, the “Born-Alive Abortion Survivors Protection Act,” was reported favorably out of the Senate Rules committee Monday night. Under the measure, doctors who fail to provide care for an infant born after a failed abortion could be charged with a misdemeanor and face civil penalties. Governor Roy Cooper vetoed a nearly identical bill of the same name in 2019. Republicans tried to overturn that veto, but didn’t have the votes. They still don’t have enough votes to do so, without support from Democrats.

Sen. Joyce Krawiec (R-Forsyth), primary sponsor of the bill, said this version of the bill lowers the criminal penalty from a felony to a Class I misdemeanor.

The bill’s sponsors said it is not about abortion but about protecting infants after they are born, despite the intention to abort a pregnancy.

“This is all about saving an infant, an innocent life that has been delivered outside of the mother’s body, no longer a part of the mother’s body,” Krawiec said. “It is by all definitions a living, breathing human – a citizen of America, of North Carolina.”

Krawiec shared stories she had been told about infants born after failed abortions left in empty rooms to die or tossed into medical waste bins.

“This is not humane,” Krawiec said.


Sen. Joyce Krawiec (R-Forsyth)

But legal experts say a variety of laws already exist to protect infants born under these conditions. They range from the Equal Protection and Due Process Clauses of the U.S. Constitution and the federal Child Abuse Prevention and Treatment Act (CAPTA) to the Born-Alive Infants Protection Act passed by Congress in 2002.

Gov. Cooper also pointed to these protections in his statement on his veto of the similar 2019 bill.

“Laws already protect newborn babies and this bill is an unnecessary interference between doctors and their patients,” Cooper wrote.

Opponents of the current bill say its real goal is to further stigmatize legal abortion and promote the idea that medical professionals who perform abortions are willing to mistreat and kill infants who are born when abortions fail.

“The claims of this bill are blatantly false and are being pushed by anti-abortion activists in order to scare people and stigmatize reproductive health care,” said Susanna Birdsong, director of public affairs for Planned Parenthood’s South Atlantic region. “Because the bill assesses criminal penalties to providers, the impact of the bill will be to intimidate providers from providing the care that their patients need.”

In Tuesday’s committee discussion, proponents of the bill repeatedly said abortion is not the issue but specific instances of infants born when abortions fail. But their comments were replete with language questioning the legality and morality of abortion in general.

Krawiec offered anecdotal testimony from a nurse she claimed she was fired for comforting, rocking and singing to an infant who was born but ultimately died after a failed abortion. A letter from a woman claiming to be a survivor of a failed abortion was read aloud to the committee.

“Any so-called right to abortion is over when that child is living and breathing,” Krawiec said.

Tami Fitzgerald, executive director of the NC Values Coalition, directly connected the current bill to ongoing legal fights over limiting access to legal abortion.

“This bill is even more important now that our 20-week limit on abortion has been challenged in court by Planned Parenthood and the ACLU,” Fitzgerald said. “Because of that lawsuit abortions can be performed up to birth because the abortionist is allowed to determine when the baby is viable under the lower court’s ruling. Unless the lower court’s ruling is overturned, more babies will be born alive during abortions in North Carolina.”

Liz Barber, policy analyst with the ACLU of North Carolina, said even the hypotheticals given throughout Tuesday’s committee meeting are already a non-issue in the state in terms of legal protections.

“I don’t think it will come as a shock to anyone in this room that to kill a living baby is murder in the state of North Carolina,” Barber said.

Passing the current bill won’t improve existing protections, Barber said. But it is useful as a political tool.

“It demonizes doctors,” Barber said. “It suggests, by legitimizing this false narrative, that doctors are committing infanticide.”

The bill faces a steep climb to become law. The deadline for bills “crossing over” from one chamber to the other is Thursday, May 13. The bill will likely see a vote in the Senate this week and with Republican support is likely to be passed in both the Senate and House. But with a veto likely, Republicans would need three-fifths of present, voting members to overturn.

A veto may end the bill’s chances to become law, but it could offering fodder for political ads and campaign fundraising for both candidates and political groups.

After the 2019 veto, the NC Values Coalition condemned Cooper with both religious and political language, saying he “vetoed the life of innocent babies, created in the image of God” during the week of Easter.

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