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The Born-Alive Abortion Survivors Protection Act is a Reminder that we Have a Pretty Good Legislatur

By Russell Withers, General Counsel & Senior Policy Analyst. Feb. 20, 2020

Roughly one year ago, Senator Ben Sasse introduced the Born-Alive Abortion Survivors Protection Act (The "Act"), which simply requires doctors to provide care to infants born alive after an attempted abortion. Stated in the plainest terms possible, the bill prohibits post-birth abortion.

Let's walk things back for a second to Roe v. Wade, the landmark U.S. Supreme Court decision from 1973 holding that there is a constitutional right to abortion. Setting aside the right to privacy and the various "penumbras" in the Bill of Rights, Roe relied heavily on "viability" with respect to the extent to which states may regulate or or even proscribe abortion. Indeed, Roe states that "[f]or the stage subsequent to viability, the State in promoting the interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life of the mother."

It is astounding that in 45 years, the debate has shifted away from trimesters and viability to whether or not a doctor should be required to do everything in his or her power to protect a living baby. That this is even a debate is truly bizarre.

In February 2019, on strict party lines, 44 U.S. Democratic Senators blocked the Act, preventing it from becoming federal law.

At TCCRI, we thought protecting the lives of born children was a worthwhile idea, so we recommended a state level law to that end in our 2019 Constitutional Freedoms Task Force Report. Representative Jeff Leach and Senator Lois Kolkhorst (and 86 additional authors, coauthors, and cosponsors) also thought it was a good idea. The bill ultimately took the form of House Bill 16, which passed both chambers of the Texas Legislature with bipartisan support.

Back at the federal level, Senator Sasse has reintroduced the Act for another shot at passage in 2020, yet it appears as though it will suffer the same fate that it suffered in 2019. That is unfortunate, but it underscores the importance of state legislatures, and we have a pretty good one in Texas.

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