By Rose Hoban
UPDATED: Gov. Roy Cooper vetoed SB 359, stating: “Laws already protect newborn babies and this bill is an unnecessary interference between doctors and their patients. This needless legislation would criminalize doctors and other healthcare providers for a practice that simply does not exist.”
Legislators approved final passage of a bill Tuesday evening that would criminalize physicians who fail to provide life-saving care to fetuses that survive an unsuccessful abortion procedure and are subsequently born alive.
Despite objections from Democrats, the Born Alive Abortion Survivors Protection Act now goes to Gov. Roy Cooper for his signature or potentially his veto.
The Senate passed the bill Monday evening, sending it to the House, wrapping up a quick trip through the General Assembly. During debate on the House floor Tuesday, Rep. Pat McElraft (R-Emerald Isle) had an emotional moment as she recounted her experiences as a young phlebotomist in the 1970s at Onslow Memorial Hospital in Jacksonville, where she said she witnessed the remains of babies born alive but allowed to die.
“I was on a break and went in to visit with the pathologist in the pathology lab and I asked him, I said, ‘What are all these little pigs doing in these buckets?’ He told me, ‘Pat, look again,’ and I did. They were perfectly formed little human babies in those buckets,” she said, her voice cracking.
She also claimed that at the time, there was a doctor at the hospital that would drown babies born alive during unsuccessful abortions in saline.
“Who would have ever thought that the governor of Virginia would advocate for infanticide?” McElraft asked, pointing to recent legislation in Virginia which would have loosened some restrictions on abortions performed after the point of viability, generally recognized to be about 22 weeks gestation.
Opponents of the bill pushed back that the bill was unnecessary.
“Infanticide is already illegal in North Carolina and under federal law,” said Rep. Carla Cunningham (D-Charlotte).
Under the bill physicians could be charged with a Class D felony, which also includes voluntary manslaughter, in addition to a $250,000 fine, as well as civil charges. Women giving birth would be immune from prosecution.
Cunningham and fellow Democrat Susan Fisher (D-Asheville) both pointed out current statutes criminalizing the killing of a child born alive, and laws against causing the death of an unborn child.
“Do any of you really think that infanticide is legal today in North Carolina?” Fisher asked. “If you think that then why on earth didn’t you do something to stop it in the decade that you have had in the supermajority?”
Changed milieu
During the debate, McElraft cited a 1981 interview in the Philadelphia Inquirer with the former chief of abortion surveillance at the then-Centers for Disease Control who said there were hundreds such births nationwide annually.
But there’s little evidence of such practices currently. A 2016 CDC review of fetuses born alive after abortion attempts over the period spanning 2003 to 2014 found 143 instances where a newborn survived an abortion attempt, out of 49 million births during that time. Of those, two-thirds involved “maternal complications or, one or more congenital anomalies,” where the newborn died within hours.
And, since the 1970s, the overall landscape of abortion has changed dramatically in the U.S. and in North Carolina.
In North Carolina, the abortion rate has steadily declined over time, down from 23 per thousand pregnancies in 1990 to 11.2 per thousand pregnancies in 2017, the most recent year for statistics.
Nationally, abortion rates have also fallen, from 27.4 per thousand pregnancies in 1990 to 11.8 per thousand pregnancies in 2015, the last year for national data compiled at the CDC.
Since the 1990s, North Carolina has restricted abortions by requiring longer waiting periods, limiting which insurance policies can cover abortions, and having a long-standing ban on procedures taking place after 20 weeks’ gestation.
According to the CDC, more than 90 percent of abortions nationally take place before 13 weeks gestation, with about only 1.3 percent occurring after 21 weeks.
North Carolina sees parallel trends, with 87.2 percent of procedures occurring before 13 weeks, and all but 40 out of 22,677 abortions in 2017 occurring before 21 weeks gestation.
[sponsor]During the floor debate, Cunningham pointed to existing laws that sanction unprofessional conduct and neglect on the part of health care practitioners. “The penalties that are in the bill are very necessary if your goal is to discourage physicians and health care providers from performing women’s health services.”
The statistics seem to indicate that’s already happening.
In 2015, the state enacted a law requiring physicians performing any abortions after 16 weeks to submit information about the procedure and tightened training standards for physicians who perform abortions, as well as lengthening the wait time for a procedure to three days.
Since that time, the number of abortions recorded as occurring after 21 weeks has dropped. In North Carolina in 2017, statistics record only one abortion of a fetus that was more than 21 weeks’ gestation being performed in-state. The other 39 instances were for women who went out of state to have the procedure.
If Cooper were to sign the bill, North Carolina would join other states that have passed such “abortion survivor” laws. But the governor’s signature may not be forthcoming.
“This unnecessary legislation would criminalize doctors for a practice that simply does not exist,” wrote Ford Porter, Gov. Cooper’s spokesman in response to a request for comment. “Laws already exist to protect newborn babies and legislators should instead be focused on other issues like expanding access to health care to help children thrive.”
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