TOPEKA, Kan. – A Kansas proposal based on the claim that providers leave infants to die after they're born during certain types of abortions is nearing legislative approval, as Republicans pursue limited anti-abortion measures following a decisive statewide vote last year protecting abortion rights.
The Kansas House voted 88-34 on Wednesday to approve a bill declaring that when there's a live birth during an abortion procedure, medical personnel must take the same steps to preserve the newborn’s life as “a reasonably diligent and conscientious” provider would with other live births. The law would apply to any “complete expulsion or extraction” of a fetus from the mother, including labor and delivery abortions during which a doctor induces labor. The measure is similar to a proposed Montana law that voters there rejected in November and laws in 18 states, including Arizona, Florida, Ohio and Texas.
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The U.S. Supreme Court declared in June that states can ban abortion, and the Republican-controlled Kansas Legislature has long had strong anti-abortion majorities in both chambers. But a 2019 Kansas Supreme Court decision protected abortion rights and in August 2022, voters rejected a proposed change to the state constitution to overturn that decision and give lawmakers the power to greatly restrict or ban abortion.
Supporters of the “born-alive infants protection” bill argued during a House debate Tuesday that the measure would survive a court challenge because it doesn't limit abortion itself. But a few Republicans touched on their moral opposition to abortion as a reason for backing the bill.
“If you truly want to hold effective conversations about the indiscriminate and brutal acts of violence in our society today, we must teach others to hold life as precious and sacred," state Rep. Rebecca Schmoe, a Republican from northeastern Kansas, said during a debate Tuesday before voting for the bill Wednesday.
Abortion providers and abortion rights advocates contend measures like the ones in Kansas and Montana are designed only to give abortion care a false and negative public image. They also argue that current state laws against homicide and child neglect, as well as laws on doctors’ duties, are sufficient to address any real problems.
House passage sent the measure to the Senate, where GOP leaders have also signaled that they see it as a priority.
“I pray for the day where we would stop killing our own children and ask God for forgiveness and mercy,” said southeastern Kansas Rep. Trevor Jacobs, explaining his “yes” vote along with six other GOP conservatives.
Supporters of the bill portrayed it as saving infants born during botched abortions. But it would apply to cases in which doctors induce labor to deliver a fetus that won't survive outside the womb, often because of a severe medical issue, with the expectation that the newborn will die within minutes or even seconds.
Like the laws in the 18 other states, the Kansas measure would require the hospitalization of infants born during labor and delivery abortions and impose criminal penalties for doctors who don’t try to save them. In Kansas, failing to attempt to save such a newborn would be a felony, punishable by a year's probation for a first-time offender.
“This bill takes away the right of a mother to make her own private medical decisions in the most complicated and heartbreaking of cases,” state Rep. Lindsay Vaughn, a Kansas City-area Democrat, said, explaining her “no” vote Wednesday. “This is a right the overwhelming majority of Kansans voted to protect.”
Like most states, Kansas doesn’t collect data on births during induced abortion procedures.
According to the U.S. Centers for Disease Control and Prevention, less than 1% of the more than 600,000 abortions a year occur after the 21st week of pregnancy. The American College of Obstetricians and Gynecologists says almost no fetuses are viable before the 23rd week of pregnancy.
Kansas law bans most abortions after the 22nd week of pregnancy, and no abortions after that point have been reported since at least 2016.
Zack Gingrich-Gaylord, a spokesperson for Wichita abortion clinic operator Trust Women, said the facility has never seen an abortion result in a live birth in the nearly 10 years the clinic has been open.
“This is just this fantasy,” Gingrich-Gaylord said. “It’s simply not true that there’s any kind of danger of this happening.”
Not providing this care after abortions was already outlawed under a 2002 U.S. law, but it doesn't contain criminal penalties. The Republican-led U.S. House passed a measure in January to add penalties, but it's not expected to pass the Democrat-controlled U.S. Senate.
Opponents also said if the legislation passes, doctors would be forced into futile and expensive attempts to prolong dying infants' lives, and those medical interventions would deny parents opportunities to hold dying babies and to say goodbye. The same argument was made ahead of Montana's vote.
Such laws also don't tell doctors when they are allowed to stop medical interventions for a dying infant, said Hillary-Anne Crosby, who coordinated the campaign against Montana's proposed law. She said doctors would be forced to choose between medically appropriate care in line with a family's wishes and “safe” actions that avoid legal problems.
Supporters of the Kansas bill rejected such arguments.
State Rep. Leah Howell, a Wichita-area Republican who voted for the bill, said she had a baby die in the 20th week of pregnancy.
“Believe me, when this bill came to my attention, the very first thing I checked for was that this law would allow moms to hold their dying babies in their arms and tell them they loved them and to say goodbye,” she said, her voice wavering.
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