By Rose Hoban
Lawmakers at the General Assembly started moving a bill this week that would punish doctors who don’t attempt to resuscitate and provide care for a fetus that might be born alive during an abortion attempt.
The move comes a scant two weeks after a U.S. district court judge struck down North Carolina’s ban on abortion after 20 weeks’ gestation. It also comes amid an emotionally charged national debate on the treatment of babies born with severe, life-ending anomalies.
The bill would charge health care providers participating in such an abortion procedure, where the fetus displays signs of life, to “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.”
In a small, crowded committee room at the legislature Wednesday, lawmakers exchanged sharp words with one another as they debated the bill.
“To characterize what happens between women and their doctors in the way that has been characterized today is shocking to me,” said Asheville Democrat Sen. Terry Van Duyn. “This is a political stunt and that’s all it is. What they’re describing is, is, these are very difficult decisions and to characterize in this way, I, I just don’t even know what to say.”
“We’re not talking about getting in between a woman and their doctor,” shot back Bill sponsor Joyce Krawiec (R-Kernersville). “We’re talking about babies that are born alive, they are no longer within their mother’s womb, they are laying on a table, breathing, hearts beating. That’s what we’re talking about today, we’re talking about their right to health care.”
But beyond the heated rhetoric, the statistics show that in North Carolina, abortion procedures taking place after 20 weeks, or later, after the limits of fetal viability which occurs around 22 weeks of gestation are vanishingly small, making the possibility of this bill being called into use even smaller.
Ban pushes procedure out of state
Across the United States, the CDC reports that in 2015, 1.3 percent of abortions took place after 21 weeks, but in North Carolina, that number was much smaller. In 2015, only 11 out of a total of 22,846 abortions was performed after 21 weeks, according to the State Center for Health Statistics.
At the request of Congress, the CDC also did a national review of fetuses born alive after abortion attempts over a 12 year period between 2003 and 2014. In that time, there were more than 49 million births, with 143 involving “induced terminations.” Of those, two-thirds involved “maternal complications or, one or more congenital anomalies,” where the newborn died within hours.
North Carolina has had a ban in place since the early 1970s on abortions performed after 20 weeks gestation, with exceptions for the life and health of the mother and a few other exceptions, but there had not been a prosecution of a late gestation abortion for decades.
In 2015, however, the General Assembly enacted new reporting obligations on physicians performing any abortions after 16 weeks gestation, restricted who may perform abortions and increased the waiting period for a woman to have an abortion to 72 hours.
The legislature also tightened the restrictions on the 20-week ban, only permitting the procedure, “to avert (the mother’s) death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.”
It was after the passage of these restrictions that a handful of abortion providers sued the state over the 20-week ban.
In the following two years, only two abortions taking place after 20 weeks (one each in 2016 and 2017) in North Carolina have been reported, according to the State Center for Health Statistics. But the number of women who went out of state to have an abortion after 20 weeks jumped from 5 in 2015 to 35 in 2016, and 39 in 2017.
Durham-based OB/GYN Amy Bryant said the passage of those laws in 2015 definitely had a chilling effect on physicians’ willingness to perform these procedures.
“Just the other week, I had to send the family to Virginia to have the procedure done,” said Bryant, who was one of the plaintiffs in the district court case. “We weren’t going to be able to do it here because they didn’t meet the criteria that the ban put in place, even though they had a pregnancy that was just not compatible with life.”
She ticked off some of the types of anomalies that prompt these decisions, including being born without a brain.
“There’s fetuses that develop without kidneys and they develop a syndrome that is not compatible with life, they can’t live outside the womb,” she said. “There are some severe deformities that make it very difficult for life without exceptional suffering.”
If these fetuses were to be delivered still living, the Born-Alive Abortion Survivors Protection Act also sets strict penalties for a physician who might withhold actions to preserve that life. Failure to act could bring physicians a fine of up to a quarter million dollars, and the bill also allows for criminal prosecution on par with voluntary manslaughter as well as civil penalties.
The bill bars the prosecution of a mother.
“Most people are unaware of these restrictions,” Bryant said. “So, it’s a real shock that, you know, they’re not going to be able to get the care they need where they expected to be able to get it.”
National political overtones
The issue of what happens to a baby born with severe anomalies took on a life of its own during a debate over an abortion bill in Virginia. In the wake of legislative hearings, Gov. Ralph Northam was asked during a radio interview on local radio station WTOP about a bill that would allow for abortions to be performed late in a pregnancy.
Northam, who trained as a pediatric neurologist, responded that these procedures are done in cases where there “may be severe deformities, there may be a fetus that’s nonviable.”
He went on to explain that “the infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if that’s what the mother and the family desired and then a discussion would ensue between the physicians and the mother.”
Some interpreted part of that statement to mean that Northam was in favor of infanticide.
During Wednesday’s committee meeting, both Krawiec and Charlotte Sen. Dan Bishop (R) cited Northam’s comments, implying as much.
“What I think we understand that folks say that this is something we can’t intercede in the judgment of physicians in that moment, what comes back to me is Gov. Northam’s comment that the baby would be kept comfortable,” Bishop said. “The implicit idea there that the baby would be kept comfortable while we who are in charge decide to terminate his life. That is… that is a monstrous concept.”
Bryant said this type of rhetoric frustrates her because the reality inside a treatment room is different.
“Usually, when this happens, you’re dealing with a family that’s really devastated by the news that they’ve gotten that, that this is not a normal pregnancy,” she said. “And they often make the decision that they would like to, you know, they’d like to not prolong the suffering of themselves or their family or their fetus by terminating a pregnancy.
“Sometimes everybody in the room is crying,” she said, even the medical providers.
Emotions ran high in the committee room as well, where a handful of advocates wearing light blue stood to add their testimonies to the record.
“This is about infanticide, plain and simple,” said Tami Fitzgerald, executive director of the North Carolina Values Coalition. “Has nothing to do with abortion, …but I would remind you that abortion is not health care and neither is infanticide, so any argument that this bill would prop itself up between a woman and her doctor is false.
“If an infant, newly born, can be left to die without medical care, or worse, left to die by the very physician that delivered that child into the world, then where does this end?”
The bill is scheduled to be heard again in a Senate committee Thursday as well as a companion House bill being heard later in the day.