First pro-life bill of new Congress fails in Senate

Sen. James Lankford, R-Okla., held a news conference on Thursday that he hoped would celebrate the passage of his Born-Alive Abortion Survivors Act. He was surrounded by pro-life advocates, senators, and survivors in a Capitol meeting room. But Lankford called it a disappointing day.

“We were looking for a moment of just common sense, quite frankly, to say, if there are any areas that we can agree on, it should be that when a child is breathing and crying on a table, somebody should pay attention,” Lankford said.

For the third time, a coalition of Republican senators revived the Born-Alive Abortion Survivors Act. The bill would penalize healthcare providers who do not provide adequate care to babies who survive attempted abortions. Doctors who fail to do so would face up to five years in prison.

But in a Wednesday party-line vote, 47 Democrats voted against letting the bill proceed in the Senate. Without the 60 votes required to overcome a filibuster, Republicans are back to the drawing board. But they knew they would be.

“Democrats will oppose legislation to provide appropriate medical care to newborn children who survive abortions because they are afraid,” Senate Majority Leader John Thune, R-S.D., said in floor remarks before the cloture vote. “Democrats are afraid that by recognizing the humanity of the newly born child, they will inadvertently point to the humanity of the unborn child. … And so because there is nothing more important to Democrats than abortion, they will vote against legislation to provide appropriate medical care to babies born alive in an abortion clinic, just in case such a law ends up jeopardizing their cherished ‘right’ to an abortion.”

The 2002 Born Alive Infants Protection Act legally recognizes an infant as a person at the moment of birth as long as signs of life are present. Senators endorsing the current bill said it would close a loophole: The 2002 law does not require intervention, meaning doctors could leave babies exposed to die if the mother was attempting to abort.

That’s what happened to Melissa Ohden, the founder of the Abortion Survivors Network. During Lankford’s news conference, Ohden said that a saline abortion failed to kill her. When she was born at 30 weeks’ gestation, a nurse defied a doctor’s orders and cared for her.

“The words ‘born alive’ are seen as polarizing terms, thanks mainly to Democrats who continue to dehumanize us and use us as pawns in the political game of abortion,” Ohden said. “I was accidentally born alive, but I deserve to be seen and heard.”

Democratic members said that federal law already protects newborns. They argue the Born-Alive act would scare doctors away from offering abortions and accuse the GOP of fearmongering by characterizing a “no” vote as support for infanticide.

“Well, it failed because of the Democrats’ abortion extremism,” Sen. Josh Hawley, R-Mo., told WORLD. “If you can’t protect babies who have actually been born, then let’s just admit it, you’re in favor of infanticide, which is essentially what they all went on record saying yesterday.”

Pro-life advocates say the bill should have been low-hanging fruit for both parties.

“This is the bill that you kind of can’t believe isn’t already the law,” said Hannah Daniel, the director of public policy for the Ethics and Religious Liberty Commission, an entity of the Southern Baptist Convention. “It’s really just extending the most basic levels of medical and legal protections to children who survive abortions. But this is something that’s been introduced and voted on for so many Congresses in a row.”

This year, the ERLC thought it might be different. Daniel, and her team put together explainers on the bill and lobbied senators to support it. But they did not get any meetings with Democrats on the Hill. Daniel said that indicates to her that pro-life wins will still be difficult, even with Republicans in the majority in both chambers.

 “It’s very telling that not a single Democrat would vote for this kind of bill. This isn’t even restricting abortion in any way. So we were pushing behind the scenes to make sure this would be considered early on in the new era of Republican leadership in Washington.” Daniel told WORLD.

Republicans are divided over whether to work with Democrats or work around them. Hawley recommended trying to protect abortion survivors through executive orders or budget reconciliation, which does not require 60 votes.

But Lankford said he’s playing the long game of changing hearts and minds in districts, then states, then their representatives in Washington. He told WORLD that an unnamed Democratic member called him and said it was tough to vote no. The member said the social media discussion about the Born-Alive act did not accurately reflect what was in the bill, but it did influence the party’s position, according to Lankford.

“We’ve already found common ground on immigration,” Lankford told WORLD, referencing the recently passed Laken Riley Act. “It’s about keeping the conversation going. The Born-Alive Act puts it out there for the public to be able to talk about. I knew we didn’t have 60 votes, but I refuse to not speak out for children and just have them forgotten. This is a way to get the conversation to the forefront and talk about it as a country.”

Without bipartisan support, pro-life advocates still have other options. The ERLC is advocating for a provision in federal appropriations bills to remove federal funds from Planned Parenthood. Hawley pointed out that the Biden administration did little to enforce the Hyde Amendment, which bans the use of federal funds for abortion. If Republicans can prove a pro-life measure falls under a budgetary issue, the Senate parliamentarian can approve its inclusion in government funding rather than a standalone bill.

The House passed its own version of the Born-Alive act on Thursday, but it faces ill chances in the Senate. During his first administration, President Donald Trump was the first sitting president to speak at the National March for Life. He also told the Senate to pass a law to stop abortions past 20 weeks of gestation. That bill also failed to overcome a filibuster. Now beginning his second term, Trump has not yet given directions for pro-life legislation. On the campaign trail last year, he said he supports pro-life protections with exceptions and that each state should determine its own laws.

“I think this is just a reminder that even though Republicans are in control of all three branches, that there are going to be challenges,” Daniel said from her Capitol Hill office. “We have a lot of work to do to strengthen the resolve among Republican members and then at the same time continue to educate Democratic lawmakers. We can’t give up on half of the country and think they’re never going to work with us on this issue.”