The legislation could pave the way for lawsuits involving medication abortions, including in cases where the mother is injured
BY: ANNA SPOERRE
Missouri Independent
Doctors and other health professionals could be held criminally liable if they don’t offer life-saving care to a baby born during an attempted abortion under legislation that cleared the Missouri House Thursday.
“This bill gives the infant a fighting chance,” Republican state Rep. Brian Seitz of Branson, who co-sponsored the legislation, said Thursday morning.
He accused any lawmakers planning to vote against the measure of supporting infanticide, which is already illegal. Republicans have said the bill, which is the first anti-abortion proposal to clear a legislative chamber in Missouri this year, was made necessary after voters overturned the state’s abortion ban last year.
The bill passed 109 to 32, with four Democrats joining Republicans in a yes vote, and nine Democrats voting “present.”
Dubbed the “born alive abortion survivors act” and sponsored by Seitz and state Rep. Holly Jones, a Republican from Eureka, the bill would require any health care providers present at the time of an unsuccessful abortion 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 provider would render to any other child born alive at the same gestational age.”
Medical professionals say this is already the standard of care.
Perhaps more notably, the bill also opens the door for civil liabilities for those involved in “self-induced abortions,” raising questions about potential implications on medication abortions.
The type of abortions targeted by the House bill are rare, in part because abortions after fetal viability remain illegal in Missouri even after voters enshrined reproductive rights in the state constitution last fall.
State Rep. LaDonna Appelbaum, a Democrat from St. Louis, called the bill a waste of taxpayers’ money.
“Murder is already against the law, so what are we doing here?” she asked on the House floor.
The Born-Alive Infants Protection Act of 2002, which was approved by Congress and signed into law by then-President George W. Bush, grants personhood to any child born after an unsuccessful abortion. But Seitz and Jones have argued that federal law doesn’t go far enough.
“In federal law, they’re not provided health care,” Seitz said Monday during House debate. “In Missouri law we will give that infant a chance. I’d buy that infant a house. I think that infant should be given an award.”
Many Democrats have said the legislation is more nefarious, and have taken issue with this characterization of federal law, pointing to existing laws around infanticide — defined as causing the death of an infant “when the infant is partially born or born.”
Republicans disagreed.
“This bill isn’t an attack,” state Rep. Ben Baker, a Republican from Neosho, said Thursday. “It’s a shield for the innocent.”
State Rep. Gregg Bush, a Democrat from Columbia and a registered nurse, said he continued to worry the bill would unfairly criminalize health care providers who help families navigate complicated medical diagnoses.
The legislation would require any medical professionals with knowledge of a violation of the “born alive” law to report it to the state. Those who fail to report a violation could face up to five years in prison and up to $10,000 in fines. It goes on to say that anyone who “intentionally performs or attempts to perform an overt act that kills a child born alive” could be charged with first-degree murder.
The class A felony the bill would establish under Missouri law excludes anyone attempting to perform a legal abortion “if the act that causes the death is performed prior to the child being partially born, even though the death of the child occurs as a result of the abortion after the child is partially born.”
There were previously questions about whether the bill would apply to miscarriages, known in medical terms as “spontaneous abortions.” An amendment was added to the bill clarifying the law would not apply to “the natural and spontaneous loss of an unborn child before fetal viability.”
The amended version also revised a provision creating civil liabilities for anyone who assists in a self-induced or illegal abortion.
Missouri’s bill mirrors some of the language in a federal bill filed by U.S. Rep. Ann Wagner, a Republican from Missouri — though the civil liability provisions in the state proposal are much more expansive.
The revised language approved Thursday applies the civil liability to someone who “recklessly, or negligently supplies or makes available any instrument, device, medicine, drug, or any other means or substance” for a self-induced or unlawful abortion.
Sam Lee, a longtime anti-abortion lobbyist, previously told The Independent the civil liabilities language could apply to self-induced medication abortions, whether the fetus is born alive or not. It could also open the door to litigation against those who assist another person in obtaining a “self-managed” abortion — no matter how early in the pregnancy.
Seitz said his intention was to give a tool for a civil cause of action if there’s a poor health outcome for the woman attempting the abortion, but to exclude from civil liabilities any physician who was to legally prescribe abortion medication.
Under the Missouri proposal, anyone related to the woman, infant or fetus can seek damages. Lee previously said the legislation would not criminalize a woman who took abortion medication unless the child was born outside a clinical setting and the mother then “knowingly, recklessly or negligently” caused the death of the child.
Michael Wolff, a former chief justice of the Missouri Supreme Court and dean emeritus at the St. Louis University School of Law, previously told The Independent that the bill raises many questions about how such a law would be interpreted with the constitutional right to abortion now in place.
The lack of definition for “self-induced abortions” in state statute also contributes to the confusion, Wolff said, and could lead to attempts to target medication abortions.
Concerns were also previously raised about the bill’s requirement that an infant born during an attempted abortion be immediately transported and admitted to a hospital.
Mallory Schwarz, executive director of Abortion Action Missouri, testified before the House committee earlier this year that this could conflict with best practices for palliative care, especially if hospitals determined this law required any infant be resuscitated.
An example would be cases where a family chooses to induce an abortion following the diagnosis of a fatal fetal anomaly. That family may decide to end the pregnancy before reaching full gestational age but still want to meet their child before they pass away.
“Resuscitation would require CPR, which could break that tiny infant’s ribs,” Schwarz told the committee. “It would require aggressive medical care that is not in line with what the families and providers have already decided is best for that unique pregnancy, that unique circumstance.”