Technical corrections only. The legislative text of H.R. 21 is identical between v2 and v3. The changes reflect the bill's procedural status, showing v2 as passed by the House and v3 as received and referred to committee in the Senate, with no substantive policy changes.
Born-Alive Abortion Survivors Protection Act
- Sponsor
- Rep. Wagner, Ann [R-MO-2]
- Committees
- Judiciary Committee (primary)
- Last action
- Jan 24, 2025
Bottom line
H.R. 21 establishes federal requirements for medical care for infants born alive after an abortion, imposing criminal penalties for non-compliance and creating civil avenues for redress, while exempting the mother from prosecution.
What it actually does
This bill amends title 18, United States Code, to require health care practitioners to provide the same degree of professional skill, care, and diligence to a child born alive after an abortion or attempted abortion as would be given to any other child born alive at the same gestational age, including immediate transport to a hospital. It mandates reporting of violations and establishes criminal penalties for non-compliance, including punishment for murder if a child born alive is intentionally killed. The bill also creates civil remedies for the woman upon whom the abortion was performed and explicitly bars prosecution of the mother.
Proponents argue
Proponents argue that this bill ensures that every infant born alive, regardless of the circumstances of their birth, receives the same medical care and legal protections as any other newborn. They contend that existing laws are insufficient to guarantee this protection and that the bill closes a perceived loophole, affirming the legal personhood of such infants and preventing infanticide. Supporters emphasize that this is a measure to protect vulnerable human life.
Opponents contend
Opponents contend that existing federal and state laws, such as the Born-Alive Infants Protection Act of 2002, already protect infants born alive, making this bill redundant. They argue that the bill is primarily intended to create additional legal and criminal liabilities for healthcare providers, potentially interfering with complex medical decisions in tragic circumstances involving non-viable fetuses, and could have a chilling effect on abortion access by increasing risks for providers.
The bill text is concise and can be read quickly, but its legal and ethical implications require significant consideration beyond a superficial reading.
Section 3(a), amending 18 U.S.C. § 1532(a)(1)
Requirements for Health Care Practitioners
This provision mandates that any health care practitioner present when a child is born alive after an abortion or attempted abortion must exercise the same level of professional skill, care, and diligence to preserve the child's life and health as they would for any other child born alive at the same gestational age. Following this care, the child must be immediately transported and admitted to a hospital.
Supporters argue
Supporters argue this provision is essential to ensure that infants who survive an abortion attempt are treated with the same dignity and receive the same life-saving care as any other newborn, upholding their legal personhood and right to life.
Critics contend
Critics argue that existing medical ethics and professional standards already dictate appropriate care for live births, and that this provision is an unnecessary intrusion into medical practice, potentially complicating care in situations where an infant is not viable or has severe anomalies.
Tradeoffs
The provision balances the protection of infants born alive with concerns about federal overreach into medical practice and the potential for legal complications in highly sensitive medical scenarios.
Section 3(a), amending 18 U.S.C. § 1532(a)(2)
Mandatory Reporting of Violations
This section requires any health care practitioner or employee of a hospital, physician's office, or abortion clinic who knows of a failure to comply with the mandated care requirements for a born-alive infant to immediately report that failure to an appropriate State or Federal law enforcement agency, or both.
Section 3(a), amending 18 U.S.C. § 1532(b)
Penalties for Violations
This subsection establishes criminal penalties for violating the requirements for born-alive abortion survivors. A general violation can result in a fine or imprisonment for up to 5 years, or both. More severely, intentionally performing or attempting an overt act that kills a child born alive is to be punished under section 1111 of title 18, which covers murder or attempted murder of a human being.
Section 3(a), amending 18 U.S.C. § 1532(c)
Bar to Prosecution of the Mother
This subsection explicitly states that the mother of a child born alive described under the act may not be prosecuted under this section, for conspiracy to violate this section, or for an offense under section 3 or 4 of title 18 based on such a violation.
Section 3(a), amending 18 U.S.C. § 1532(d)
Civil Remedies for Women
This provision allows a woman upon whom an abortion was performed or attempted, and where a child was born alive in violation of the act's requirements, to bring a civil action against the person who committed the violation. Appropriate relief includes objectively verifiable money damages for all injuries (psychological and physical), statutory damages equal to three times the cost of the abortion, and punitive damages. Prevailing plaintiffs are awarded attorney's fees, while prevailing defendants can receive attorney's fees if the plaintiff's suit is found to be frivolous.
The bill defines 'child born alive' by reference to section 8 of title 1, United States Code (commonly known as the 'Born-Alive Infants Protection Act').
Section 3(a), amending 18 U.S.C. § 1532(a)
Why it matters:This is standard legislative practice to avoid redundancy and ensure consistency with existing legal definitions, rather than an attempt to obscure the definition.
Case for: Referencing an existing, widely understood definition ensures legal consistency and avoids creating conflicting interpretations of 'born alive' across federal statutes.
Case against: A reader unfamiliar with the referenced statute would need to consult external legal text to fully understand the scope of 'child born alive' as it applies to this bill, potentially hindering immediate comprehension.
Estimated impact: The definition from 1 U.S.C. § 8 states that 'born alive' means the complete expulsion or extraction from its mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or abortion. This broad definition is central to the bill's applicability.
The bill provides a specific definition of 'abortion' for the purposes of this section, meaning the use of any instrument, medicine, drug, or substance/device to intentionally kill an unborn child or to intentionally terminate a pregnancy, with specific exceptions. The exceptions are: after viability, to produce a live birth and preserve the child's life and health; or to remove a dead unborn child.
Section 3(a), amending 18 U.S.C. § 1532(e)(1)
Why it matters:Definitions are typically placed at the end of a section; however, the specific wording of 'abortion' is critical to the bill's scope and could be easily overlooked despite its significance.
Case for: Defining 'abortion' within the bill's context clarifies the specific procedures and intentions to which the 'born-alive' requirements apply, aiming to prevent misinterpretation and ensure legal precision.
Case against: Critics might argue that the specific phrasing of the definition, particularly the 'intentionally kill' or 'intentionally terminate' clauses and their exceptions, could be interpreted to broaden the scope of what constitutes an abortion in a way that impacts medical practice beyond the stated intent of protecting born-alive infants.
Estimated impact: This definition dictates which medical procedures fall under the purview of the bill's requirements, directly influencing the legal and medical responsibilities of practitioners. It aims to distinguish between procedures intended to result in a live birth (even if premature) and those intended to terminate a pregnancy.