Born-Alive Abortion Survivors Protection Act
- Sponsor
- Sen. Lankford, James [R-OK]
- Last action
- Jan 22, 2025
Bottom line
The bill mandates specific medical care for infants born alive after an abortion, imposing federal criminal penalties and civil liabilities for non-compliance, while exempting the mother from prosecution.
What it actually does
This bill amends title 18, United States Code, to require healthcare practitioners to provide the same degree of care to a child born alive after an abortion or attempted abortion as would be given to any other child of the same gestational age, including immediate transport to a hospital. It establishes criminal penalties for non-compliance, including up to 5 years imprisonment, and mandates reporting of violations to law enforcement. Additionally, it creates civil remedies allowing the woman on whom the abortion was performed to sue for damages, while explicitly exempting the mother from prosecution.
Proponents argue
Proponents argue this bill is a vital measure to protect the lives of infants who survive abortions, ensuring they receive the same medical care and legal protections as any other newborn. They contend it closes a perceived loophole in existing law by providing specific federal enforcement mechanisms and penalties, reinforcing the principle that all live-born infants are legal persons deserving of care.
Opponents contend
Opponents contend that existing federal and state laws, including the Born-Alive Infants Protection Act of 2002 and child abuse statutes, already protect infants born alive, making this bill redundant. They argue it is a politically motivated attempt to restrict abortion access, interferes with medical judgment in complex and rare circumstances, and could criminalize healthcare providers for difficult medical decisions.
The bill is relatively short and accessible, allowing an informed reader to understand its core provisions within the typical time allotted for legislative review.
Section 2
Congressional Findings on Born-Alive Infants' Legal Personhood
This section establishes that if an abortion results in the live birth of an infant, that infant is a legal person under U.S. law, entitled to all legal protections. It asserts that any infant born alive after an abortion has the same claim to legal protection as any other newborn or patient in a healthcare facility.
Supporters argue
Supporters argue these findings are crucial for establishing the moral and legal basis for the bill's requirements, ensuring that the personhood of infants born alive is unequivocally recognized and protected under federal law.
Critics contend
Critics contend that these findings are largely redundant, as the Born-Alive Infants Protection Act of 2002 already established legal personhood for all infants born alive, regardless of the circumstances of their birth.
Tradeoffs
This provision navigates the tension between reinforcing existing legal principles and potentially using such reinforcement as a basis for further restrictions on abortion access.
Section 3(a)(1)
Standard of Care and Hospital Admission for Born-Alive Infants
This provision mandates that any healthcare practitioner present when a child is born alive after an abortion or attempted abortion must exercise the same degree 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.
Section 3(a)(2)
Mandatory Reporting of Non-Compliance
This section requires any healthcare 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(b)
Criminal Penalties for Non-Compliance and Intentional Killing
This provision establishes criminal penalties for violations of the mandated care requirements. A healthcare practitioner who fails to comply can be fined, imprisoned for up to 5 years, or both. If a practitioner intentionally performs or attempts an overt act that kills a child born alive, they shall be punished under section 1111 of title 18, United States Code, which covers murder.
Section 3(c)
Bar to Prosecution for the Mother
This section explicitly states that the mother of a child born alive after an abortion or attempted abortion may not be prosecuted for any violation of this section, including attempts or conspiracies to violate it, or related offenses under sections 3 or 4 of title 18.
Section 3(d)
Civil Remedies for Women
This provision allows a woman on whom an abortion was performed or attempted, and whose child was born alive in violation of the care requirements, to bring a civil action against the person who committed the violation. She can seek objectively verifiable money damages for all injuries (psychological and physical), statutory damages equal to three times the cost of the abortion, and punitive damages. The court must award reasonable attorney's fees to a prevailing plaintiff, and to a prevailing defendant if the plaintiff's suit is found frivolous.
The bill defines 'abortion' as the use of any instrument, medicine, drug, or substance to intentionally kill an unborn child or to intentionally terminate a pregnancy, with specific exclusions. These exclusions are: (i) after viability, to produce a live birth and preserve the life and health of the child born alive, or (ii) to remove a dead unborn child.
Section 3(e)(1)
Why it matters:This is standard legislative practice to place definitions in a dedicated section. However, the specific wording of the exclusions is highly consequential for how the bill's requirements apply to different medical procedures.
Case for: Supporters argue that a precise definition of 'abortion' is necessary to clearly delineate the scope of the bill's application, ensuring it targets specific actions while exempting legitimate medical procedures.
Case against: Critics may argue that the nuanced definition, particularly its exclusions, could still lead to ambiguity or unintended interpretations in complex medical scenarios, potentially impacting the provision of necessary care.
Estimated impact: The definition directly shapes the applicability of the bill's criminal and civil penalties, determining which medical procedures fall under its purview and which are explicitly excluded.
The bill defines 'born alive' by referencing section 8 of title 1, United States Code, commonly known as the 'Born-Alive Infants Protection Act'. This means the bill incorporates the existing federal definition of a human being who has been completely expelled or extracted from his or her mother and who, after such expulsion or extraction, breathes or has a beating heart, pulsation of the umbilical cord, or definite voluntary muscle movement, regardless of whether the umbilical cord has been cut or the placenta is attached.
Section 3(e)(3)
Why it matters:This is standard legislative drafting practice to avoid redundancy and ensure consistency with existing federal law. It is not necessarily evasive.
Case for: Supporters argue that referencing an existing, established federal definition of 'born alive' ensures consistency across federal statutes and avoids creating conflicting legal interpretations.
Case against: No specific opposition is typically raised against referencing the existing federal definition of 'born alive,' as it is a widely accepted legal standard for personhood after birth.
Estimated impact: This reference ensures that the bill's protections apply to any infant meeting the established criteria for being 'born alive,' aligning with existing federal legal personhood definitions.
The bill specifies that whoever intentionally performs or attempts to perform an overt act that kills a child born alive described under subsection (a) shall be punished as under section 1111 of title 18, United States Code. Section 1111 defines murder in the first and second degrees and prescribes penalties, including death or life imprisonment for first-degree murder.
Section 3(b)(2) and Section 1111 of title 18
Why it matters:This is standard legislative practice to reference existing criminal code sections rather than reprinting them. It is not evasive.
Case for: Proponents argue that referencing the federal murder statute ensures that the intentional killing of a child born alive is treated with the utmost legal severity, consistent with the protection of any human life.
Case against: Opponents may argue that applying the federal murder statute to medical professionals in these highly sensitive contexts could lead to an overly aggressive criminalization of medical decisions, even in cases where the intent to kill is disputed or where the infant's prognosis is extremely poor.
Estimated impact: This provision significantly raises the stakes for healthcare practitioners, potentially subjecting them to the most severe federal criminal penalties, including life imprisonment or the death penalty, for actions deemed to be the intentional killing of a born-alive infant.