Sasse: Federal Law Doesn’t Criminalize Killing or Denying Care for Babies Who Survive Abortion

Melanie Arter | February 12, 2020 | 2:58pm EST
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(Photo credit should read ANDREW HARNIK/AFP via Getty Images)
(Photo credit should read ANDREW HARNIK/AFP via Getty Images)

( – Sen. Ben Sasse (R-Neb.), who chaired a Senate Judiciary Committee hearing Tuesday on the Born Alive Abortion Survivors Protection Act, said that while federal law recognized that babies born alive after a botched abortion are persons, the law fails to offer them protections from being killed them or denied medical care once they survive an abortion.

Sasse said that the hearing itself was not about abortion policy, it was about making sure that “every newborn baby has a fighting chance whether she’s born in a labor and delivery ward or whether she’s born in an abortion clinic.”


In 2002, Republicans and Democrats came together to ensure that children born alive are recognized as persons under federal law, but unfortunately, federal law does not criminalize the denial of care to babies that survive an abortion. Today this committee has an opportunity to learn from experts in both the legal and medical communities as we consider what we can do to protect these most vulnerable among us, these newborn babies.

Before senators and journalists begin to write off this hearing as just another messy and complicated fight about longstanding disputes surrounding abortion policy, I would like to humbly ask that we not just immediately retreat into our fortified and familiar trenches that the two parties have occupied for most of the past 47 years. I want to say that I am proudly pro-life, but I’m not actually here today to try to persuade any of my pro-abortion rights colleagues that they should join us at next year’s March for Life. That’s not what this hearing is about.

This hearing isn’t about overturning Roe vs. Wade. In fact, this hearing is not actually about limiting access to abortion at all. This hearing isn’t a debate about third trimester or second trimester or first trimester abortion. This hearing is about making sure that every newborn baby has a fighting chance whether she’s born in a labor and delivery ward or whether she’s born in an abortion clinic. 

That’s what the Born Alive Abortion Survivors Protection Act does. That’s all it does. It makes sure that a baby that is born alive during a botched abortion would be given the same level of medical care that would be provided to any other baby at the same gestational stage. We need to underscore this, because we’re probably going to hear lots of things surrounding the hearing that are about other topics. Many of them are important. Many of them have meaningful debates, but they’re probably not really what this hearing is about.


Sasse said the hearing is about “babies that are born alive surviving a botched abortion attempt and whether not they should be provided the same level of medical care that would be provided to any other baby at the same gestational stage.”

He noted that “last year, 53 senators – a majority of the Senate – and including three Democrats - Senators Casey, Jones and Manchin – voted in favor of this legislation, the Born Alive Abortion Survivors Protection Act, and some of the Democrats that didn’t vote in favor of the legislation said they would like to have a hearing on the legislation.”

He called on senators to “seriously engage the position that they’ve taken in good faith rather than letting politics and rhetoric surrounding other topics consume this hearing.”

Furthermore, he said, “For two centuries, Americans have worked relentlessly to extend basic human rights to more and more of our fellow citizens, and Senator Bernie Sanders and I – two men who don’t agree much in terms of our voting record – do agree about this. This is a recent Senator Sanders quote: ‘The mark of a great nation is how it treats its most vulnerable people.’”

“Yes, and Amen, and that’s exactly why we’re here today. It’s time to protect these newborn and vulnerable babies,” the senator said.

Sen. Dick Durbin (D-Ill.) said that what Sasse described “is a horrible situation” that should be against the law, and he recommended that people look up Dr. Kermit Gosnell, a Philadelphia abortionist serving life in prison for killing three babies born alive during an abortion attempt by snipping the babies’ necks with scissors.

“There’s no question about it. It ought to be against the law, and it is. For those who want to take a look at this issue, I recommend to you a very simple procedure: go to your computer. Go on the Internet and type in two words: Kermit Gosnell,” Durbin said. 

“In the year 2013, this physician was found guilty of the very thing that Senator Sasse has described this morning. Where is he today? Do we need a new law to go get him? No, you’ll find him in prison serving a life sentence without parole plus 30 years. He broke the law by doing exactly what Senator Sasse has described. He’s in prison. As far as I’m concerned, should be. What we’ve got to do is take a serious look at this and ask does it add anything to the protections currently in the law against infanticide,” he said.

Durbin said that in a “bipartisan effort,” virtually everyone joined together a few years ago “to establish this basic standard in federal law as well,” and Tuesday’s hearing was “addressing an issue already addressed in virtually every state in terms of infanticide and involuntary manslaughter when it comes to babies in this circumstance.”

He also suggested that the committee take a look at the disparity in infant and maternal mortality when it came to African-American women and babies.

“If your interest is infant mortality, consider the fact that if you are an African American infant born in America today, you are three times more likely to die in the first year of birth – three times African American. What about the mother giving birth?” the senator asked.

“In the United States of America, African American women are six times more likely to die giving birth than other women in this country, and the numbers sadly are horrible in comparison with the rest of the world, which is making real progress on maternal mortality and infant mortality,” he said. “Can we take the hot button issues and set them aside and all agree to focus on infant mortality and maternal mortality? There’s plenty of room for improvement there starting with this president’s budget.”

Following Durbin’s opening statement, Sasse chimed in to illustrate “two distinctions” in Durbin’s comments - “chief among them that Kermit Gosnell is in prison as he rightly should be.”

“Though federal law recognizes the dignity and the personhood of these babies who’ve been born alive, it doesn’t actually criminalize killing them or denying them care, and so about half of states don’t have any prohibition on this, and the federal law doesn’t have any punishment or prohibition,” Sasse said.

“And second of all, there’s active killing versus passive killing, and the practice that we’re going to talk about today, and I know that Mrs. Stanek’s testimony’s going to deal with directly is the practice of allowing these babies to die by simply removing and withholding all care from them. So I agree in the spirit of Senator Durbin’s comments that there are multiple places that we agree. There’s also still lots and lots of gaps that we need to tackle,” he said.


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