Texas Lawmakers

Bills under consideration in Texas and other states would penalize health care providers for failing to care for an infant who survives an abortion attempt. | Eric Gay/AP Photo

Health Care

Republicans in at least nine states are pushing similar late-term abortion bills that could rally the GOP base in 2020.

Republican legislators across the country are rallying behind President Donald Trump’s efforts to link Democrats with “infanticide,” daring Democratic governors to veto “born alive” bills animating the party’s base before the 2020 elections.

Bills approved by GOP-run legislatures in Montana and North Carolina this week would penalize health care providers for failing to care for an infant who survives an abortion attempt. The measures, which are also winding through legislatures in Texas and elsewhere, are being pushed by anti-abortion groups that quickly seized on bills in New York and Virginia aimed at loosening restrictions on third-trimester abortions.

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“Pro-life activists in the legislature are really making things uncomfortable for the governors,” said Mallory Quigley, a spokesperson with Susan B. Anthony List, an anti-abortion group allied with the Trump administration. “Now they have a tricky situation politically with these pro-life bills headed to their desk.”

North Carolina Gov. Roy Cooper, who faces reelection next year in a state Trump won by 3.6 percentage points, on Thursday vetoed the bill state lawmakers passed two days earlier. A spokesperson for Montana Gov. Steve Bullock, who is mulling a presidential run as a bridge-building moderate, indicated he will likely do the same.

“This needless legislation would criminalize doctors and other healthcare providers for a practice that simply does not exist,” Cooper said in a statement after vetoing the bill.

Democrats and abortion rights activists say the GOP and Trump — who said Democrats “don’t mind executing babies AFTER birth” — are using inflammatory language to spread misinformation about third trimester abortions, which are rare and often involve serious health problems for either the pregnant woman or the fetus. Democrats argue the law already prevents doctors from killing babies, and the so-called “born alive” measures would prevent doctors from providing appropriate care and add emotional pain to already tough medical decisions.

Similar bills in Congress have been defeated or stalled, but Republicans plan to press the issue heading into the 2020 election. Trump has won over evangelicals, a key GOP constituency, with his strong anti-abortion position and attempts to cut funding for Planned Parenthood. Conservatives, seeking to paint Democrats as so extreme on abortion that they tolerate “baby-killers,” believe the issue can motivate their voters and appeal to Hispanics — who are divided on abortion — and suburban women who helped fuel Democrats’ midterm election gains.

Cooper’s veto emerged as an immediate flashpoint in North Carolina, a 2020 battleground for the presidency and control of the Senate — Democrats believe they must topple Sen. Thom Tillis (R-N.C.) next year to have a shot at retaking the chamber. The state GOP accused Cooper of aligning with “infanticide and extremist” abortion providers.

Cooper, who in 2016 just narrowly defeated an unpopular Republican incumbent, is betting his veto won’t hurt his reelection effort.

“Two decades ago you’d never have seen a North Carolina politician take this kind of step,” said Mitch Kokai, a senior political analyst with the John Locke Foundation, a conservative think tank in Raleigh. “But I’m guessing Cooper is making the political calculation that there are enough supporters of the pro-choice movement concerned about this legislation and its ties to the pro-life cause that he thinks it’s not going to hurt him.”

Texas and six other states are debating similar bills based on model legislation from National Right to Life that would impose fines and prison sentences on physicians and nurses who neglect an infant surviving an abortion. The Texas bill is on the verge of passage — the state House and Senate must reconcile slightly differing versions of the bill before it’s sent to Republican Gov. Greg Abbott, who has tweeted his support.

The political firestorm over third trimester abortions was ignited earlier this year by a vote in the New York legislature to ease restrictions on the procedure and Virginia Gov. Ralph Northam’s graphic comments defending a similar bill in his state. Democratic presidential candidates have faced questions about the issue on the campaign trail.

“What happened in New York and Virginia is seen as very extreme,” Quigley of SBA List said. “You’ve got Beto [O’Rourke] and Bernie [Sanders] and people running for president, having to speak on late-term abortion. This is going to be an issue that hurts them.”

Democrats are largely united on abortion rights and have tried to highlight Trump administration actions undercutting access to Planned Parenthood and contraception. Still, some Democrats worry about their party’s strategy to counteract Republican messaging on these bills.

“[Democrats] should be increasingly concerned, not just about this policy but about … a model that takes a national message, often a muddled one, and figures out a way to localize and it and weaponize it,” said a Democratic Senate aide. “The moment you take a national thing and localize it and it makes Democrat governors uncomfortable, Republicans win.”

Senate Democrats earlier this year blocked an attempt to bring up a “born alive” bill from Sen. Ben Sasse (R-Neb.), before the measure was defeated largely along party lines in late February. Three Democrats — Sens. Bob Casey of Pennsylvania, Doug Jones of Alabama and Joe Manchin of West Virginia — voted for it. House Republicans, meanwhile, have been gathering signatures to force a vote on the floor.

The state measures so far have passed largely with GOP votes. However, they got some support from Democratic lawmakers in conservative parts of the country.

“The picture painted by [the bill] is horrific,” said Texas state Sen. Judith Zaffirini, one of two Senate Democrats who voted for the bill in a statement. “The idea that a doctor would, in the aftermath of a failed abortion, witness a newborn child struggle for life and do nothing to assist is incomprehensible and abhorrent.”

But many Democratic state lawmakers argued the bills were meant to score political points or to discourage doctors from providing abortions. Democrats in North Carolina argued that Republicans never pushed for a vote when they held legislative supermajorities as recently as last year.

“Let me just say that not a single one of us in this room supports infanticide,” said Texas state Rep. Donna Howard, a Democrat who organized a boycott of the state’s bill on the House floor Tuesday. “The misinformation perpetuated by this bill is dangerous and is the exact type of rhetoric that leads to threats of violence against providers.”

Democrats say Republicans are misrepresenting how often and why abortions happen later in pregnancy. In Texas, for example, no infants survived an abortion attempt between 2013 and 2016, the only years that state health department data is available. And if a doctor does harm to a baby, charges can be filed under existing the law — as was the case with abortion provider Kermit Gosnell, who was convicted of murder in 2013.

The “born alive” bills would criminalize negligence, meaning that prosecutors would not necessarily have to prove a premeditated intent to harm to bring a case. Second, they establish harsh penalties — in Montana’s bill, for example, physicians and nurses could face up to 20 years in prison.

Anti-abortion groups are confident the measures would withstand legal challenges, unlike other state laws that have sought to ban abortion before fetal viability — the standard set by Roe v. Wade. Some abortion rights groups said they likely wouldn’t try to block these measures in court, decrying the bills as a “scare tactic.”

“Newborns are already protected under existing law, so this legislation is completely unnecessary,” said Elisabeth Smith, chief counsel for state policy at the Center for Reproductive Rights.

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