Written Testimony of Catherine Glenn Foster, M.A., J.D. President and CEO, Americans United for Life. In Support of H.B. 1795 Submitted to Senate Subcommittee on Health Professions, February 14, 2023.
Dear Chair Barker and Members of the Committee:
My name is Catherine Glenn Foster, and I serve as President and CEO of Americans United for Life (AUL). Established in 1971, AUL is a national law and policy nonprofit organization with a specialization in abortion, end-of-life issues, and bioethics law. AUL publishes pro-life model legislation and policy guides, tracks state bioethics legislation, and testifies on pro-life legislation in Congress and the states. Our vision at AUL is to strive for a world where everyone is welcomed in life and protected in law. Thank you for the opportunity to testify in support of H.B. 1795, a bill that would provide protections for infants born-alive following an abortion procedure.
Virginia Has Robust Powers to Protect Infant Survivors of Botched Abortions Through H.B. 1795
In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and returned the abortion issue to the democratic process. This means that the “States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’” The Court recognizes that “[t]hese legitimate interests include respect for and preservation of prenatal life at all stages of development . . . [and] the preservation of the integrity of the medical profession.”
As Dobbs indicates, Virginia has robust powers to pass protections for infants who survive the abortion procedure. The bill before you today would provide greater protection for newborn life than what is currently offered in Virginia, as well as the federal Born-Alive Infant Protection Act (BAIPA).
Medical Intervention Is Critical to Increasing the Survival Rates and Alleviating the Suffering of Born-Alive Infant Survivors
Advancements in medical technology have allowed medical professionals to save prematurely born children at younger gestational ages. Preborn children as young as 21 weeks gestation have been able to survive outside the womb. According to an article from the American Academy of Pediatrics, “[r]ecent studies reveal that, with active treatment, infants born at 22 weeks’ gestation can achieve survival rates of 25% to 50%.” Reports from the Centers for Disease Control and Prevention (CDC) show that there are still as many as 10,000 abortions in the U.S. that occur at or after 21 weeks gestation. However, “[a] periviable infant (variously interpreted in the United States as one between 20 and 24 weeks gestational age) is a critically ill patient due to developmental immaturity.” Periviable infants need critical medical care, such as “goal-oriented intensive care including resuscitation and invasive interventions or . . . comfort-oriented end of life care such as warming, morphine for air hunger, and feeding if applicable.”
It is a common misconception that most late-term abortions are performed only for reasons of medical necessity. As the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) states, “most abortions are done for social reasons.” Dr. James Studnicki published a similar outcome in the Journal of Health Services Research and Managerial Epidemiology regarding late-term abortions. As he says, “[t]he Guttmacher Institute has provided a number of reports over 2 decades which have identified the reasons why women choose abortion, and they have consistently reported that childbearing would interfere with their education, work, and ability to care for existing dependents; would be a financial burden; and would disrupt partner relationships.” Accordingly, most abortions occur for elective reasons of the mother, not because of the baby’s medical condition.
The bill protects all infants born alive, regardless of the child’s gestational age at the time of birth. Medical pioneering teams are working to increase the survival rates for extremely premature babies. Previable infants born alive have human dignity and deserve comfort care, which they would receive under this bill. As AAPLOG recognizes, “[a] previable infant born alive (variously interpreted as a fetus delivered before 20 to 24 weeks, with those before 20 weeks being termed abortus or miscarriage in medical literature) is a patient at the end of his or her natural life.” Medical professionals can provide perinatal care to these young patients, which “focus[es] on maximizing quality of life and comfort for newborns with a variety of conditions considered to be life-limiting in early infancy,” which “includes lethal fetal conditions” such as extremely premature delivery after a botched abortion. Perinatal palliative care plans “must include plans for assessment and care of the newborn and should include considerations such as newborn bonding and skin-to-skin contact, warmth, hydration, feeding and lactation, management of respiratory distress, and pain control.”
While there isn’t standardized abortion reporting, the reports that are available, along with the stories from survivors, show it is not a myth that there are infants born alive following an abortion procedure. For example, one CDC report found that over a 12-year period, at least 143 babies survived the abortion procedure before ultimately passing away. But the CDC notes “it is possible that this number (143) underestimates the total number of deaths involving induced termination.” A study published in Obstetrics & Gynecology found that of the 241 preborn children aborted for having a fetal anomaly between 20 and 24 weeks gestational age, 122 infants survived the procedure before ultimately passing away.
Research organization Charlotte Lozier Institute has also gathered information from voluntary state abortion reports. It found that information on born-alive infants was available from eight states: Arizona, Arkansas, Florida, Indiana, Michigan, Minnesota, Oklahoma, and Texas. 35 infants were born alive in Arizona, Florida, Minnesota, and Texas in 2020 and 2021. Another eight babies were born alive in Florida in 2022. In this regard, infants are surviving attempted abortions, and they are in critical needs of medical intervention to increase their chances of survival and to provide comfort care.
H.B. 1795 Supplements the Federal BAIPA, Providing Necessary, Commonsense Protection for Born-Alive Infants
In 2002, Congress passed BAIPA, clarifying that federal law recognizes infants born alive at any stage of development as persons. While the law acknowledges that all born-alive infants have equal legal standing regardless of the circumstances of their birth, the law does not ensure the infant will receive life-saving protection should he or she need it. It is still necessary to require an affirmative action by a physician to ensure that an infant born alive after an abortion receives the same level of medical care as any other infant would.
H.B. 1795 is more comprehensive than the federal BAIPA and fills in its gaps by expanding protections for born-alive infants. The bill specifies the abortion provider “shall . . . exercise the same degree of professional skill, care, and diligence to preserve the life and health of the human infant who has been born alive as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.” In other words, H.B. 1795 would require that any infant born alive must be treated as what she is—a person. The bill then states the provider must also “take all reasonable steps to ensure the immediate transfer of the human infant who has been born alive to a hospital for further medical care” thus guaranteeing she is given potentially life-saving medical attention and care to survive. H.B. 1795 safeguards these commonsense steps will be taken by creating civil and criminal penalties for physicians who fail to follow this requirement, and mandates reporting of any failures to the Board of Medicine.
While Virginia currently requires “measures for life support for the [child who survives the abortion procedure] must be available and utilized if there is any clearly visible evidence of viability,” H.B. 1795 would bring Virginia in line with many other states that meaningfully mandate life-saving medical care. At least thirty-four other states have some form of protection for newborns who survive the abortion procedure.
H.B. 1795 is also necessary because the federal BAIPA has limited application. It only extends to hospitals operated by the federal government or those which receive federal funding, and the hospital’s employees. It would not require many private or state-operated clinics and hospitals to provide care or medical attention to born-alive infants. However, the ability to have an abortion in Virginia does not include the right to commit infanticide, nor justify the denial of basic protections for born, living human infants. H.B. 1795 would create the affirmative duty of healthcare providers to give medically appropriate and reasonable care for the most vulnerable members of the community.
The bill ensures Virginia’s desire to protect a living newborn does not remain merely a nice thought or idea. By providing for civil and criminal penalties for violation of the law, in line with violations of other codes of professional conduct, this bill ensures that infant protections will be properly and consistently enforced, making these safeguards more than just a rule on paper.
I strongly encourage the Members of this Committee to support H.B. 1795 and continue to uphold the Commonwealth’s duty to protect the lives of all its citizens, no matter the circumstances in which they were born.