A growing fad in recent years from Republicans is to pursue “born alive” bills for babies who survive abortions. 

You might ask, why are these laws needed, since the murder of infants is already illegal?  You might also recall that the federal government already passed the “Born-Alive Infants Protection Act” in 2002.

So what is the purpose in these bills?

Turns out that the 2002 law signed by George W. Bush didn’t actually do anything.  No penalty was prescribed for violation of the act.  It merely urged the federal government (not the states) to administratively recognize a “person” as including a child who is born alive, but only when it comes to a “ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.”  The act then tried to skirt around the real issue, abortion: “Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being ‘born alive’ as defined in this section.”

The idea that such language could straddle the fence is specious.  There is no neutral position on abortion.  To mention birth as a dividing line for human rights is to unavoidably diminish the child who, moments earlier, was targeted for death by doctors licensed to kill.  Although cleverly disguised, the Born-Alive Infants Protection Act of 2002 in effect gave weight to Roe v. Wade.  

You may notice that nothing has been done in the years since the passage of this law to actually end abortion.  If anything, abortion has increased by the undetectable use of Obama’s abortion-inducing drugs that the Trump administration continues to make available.  It seems the 2002 “born alive” law only created an appearance that progress was being made—while actually promoting a co-existence with abortion.   

Insincere Republicans in the states have picked up on the utility in this approach.  Rather than end abortion, these Republicans have noticed they can deflect and still gain pro-life support with feel-good band-aids.  Such was the case in Texas, when state representative Jeff Leach refused to allow a floor vote on legislation he once co-sponsored, the Abolition of Abortion in Texas Act.  In 2019, Rep. Leach reversed his support.  As chairman of the Judiciary & Civil Jurisprudence Committee, Rep. Leach blocked the abolition bill (H.B. 896), which clarified that the murder code protects all children.  In its place, Rep. Leach sponsored the “Texas Born-Alive Infant Protection Act” (H.B. 16), and the governor signed it into law last year.

Rep. Leach’s “born alive” act penalizes the doctor with a $100,000 fine for botching an abortion and failing to subsequently take the baby to the hospital.  The mere existence of this penalty makes the abortion seem legitimate.  The doctor is fined for failing to do what the mother hired him to do: kill the baby before he was born. 

The Texas act goes a step further into degradation by making it a mere third-degree felony to allow a child to die without care.  In Texas, infanticide (so long as your mom tried to kill you in the womb) is now nothing more than a third-degree felony, like being busted with 5 lbs of marijuana. 

What we are seeing with these “born alive” bills is that they are not just nothing, they are worse than nothing.  They create an incentive for abortion doctors to be better killers, while also reducing the legal status of the born child, simply because his mother wanted him dead.  

We see this even more explicitly in West Virginia.  On March 2, 2020, Republican Governor Jim Justice signed another “born alive” bill:

“If a physician performs or attempts to perform an abortion that results in a child being born alive the physician shall (A) Exercise the same degree of reasonable medical judgment to preserve the life and health of the child as a physician would render to any other child born alive at the same gestational age; and (B) Ensure that the child born alive is immediately transported and admitted to a hospital.”

What is the penalty for allowing the child to die after a botched abortion?  “[D]iscipline from the applicable licensure board.”

In other words, jail time is not required.  For murder, no more penalty may come than that the doctor might lose his license—and even that is up to the board.  

The sad reality is that “born alive” legislation of this sort trivializes life, and lowers its protection.  It broadens the reach of Roe

The only answer is to simply end abortion, and provide equal protection as the Constitution requires. 

Siena Hoefling
Siena Hoefling is the Executive Director for Equal Protection for Posterity