TOPEKA, Kan. — A Kansas proposal based on the disputed idea that providers leave infants to die after they're born during 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 an abortion procedure results in a live birth, 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 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.
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 will survive a court challenge because it doesn't limit abortion itself. State Rep. Clark Sanders, a Republican from central Kansas, said the bill deals only with cases when a newborn is “completely out of her or his mother,” and has a heartbeat and is breathing.
“What we’re considering today is: What are a doctor and other medical personnel required to do in that circumstance?” Sanders said during Tuesday's debate. “What rights does that person have?”
House passage would send the measure to the Senate, where GOP leaders have also signaled they see it as a priority.
“At its core, I really feel this is a basic human rights issue,” said Republican state Rep. John Eplee, a northeastern Kansas doctor.
Supporters of the bill portrayed it as saving infants born during unsuccessful or botched abortions, but it also would apply to cases in which doctors bring on labor to push 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 unsuccessful abortions and impose criminal penalties for doctors who don’t try to save them. In Kansas, failing 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 prviate medical decisions in the most complicated and heart-breaking 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.”
Because most states, including Kansas, don't collect data on births during abortion procedures, abortion opponents and abortion rights supporters don't have solid numbers.
Some abortion opponents have argued that there are likely hundreds of infants a year born across the U.S. during abortions, but that's more than 600,000 or more abortions performed annually, according to U.S. Centers for Disease Control and Prevention statistics. Also, the CDC says fewer than 1% of all abortions occur after the 21st week of pregnancy.
Kansas law bans most abortions after the 22nd week of pregnancy — when Kansas automatically considers a fetus able to survive outside the womb — 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 unsuccessful 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.
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.
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 arguments were made ahead of last year's vote in Montana.
But supporters of the Kansas bill said that wasn't so, because parents would be allowed to stay with their newborns as they went to the hospital and when they were there. State Rep. Leah Howell, a Wichita-area Republican, 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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