In the summer of 2020, Snopes readers asked us to look into the accuracy of social media posts that claimed to list the names of 41 U.S. Senators who had “voted to let babies scream until they die if born alive.”
The meme referred to Senate Bill 311 (SB 311), which was introduced in the Senate in January 2019 by Sen. Ben Sasse, R-Neb. The non-partisan Congressional Research Service summary of the legislation reads as follows:
This bill establishes requirements for the degree of care a health care practitioner must exercise in the event a child is born alive following an abortion or attempted abortion.
A health care practitioner who is present must (1) exercise the same degree of care as reasonably provided to another child born alive at the same gestational age, and (2) immediately admit the child to a hospital. The bill also requires a health care practitioner or other employee to immediately report any failure to comply with this requirement to law enforcement.
A person who violates the requirements is subject to criminal penalties — a fine, up to five years in prison, or both. Additionally, an individual who intentionally kills or attempts to kill a child born alive is subject to prosecution for murder.
The bill bars the criminal prosecution of a mother of a child born alive for conspiracy to violate these provisions, for being an accessory after the fact, or for concealment of felony. A woman who undergoes an abortion or attempted abortion may file a civil action for damages against an individual who violates this bill.
The text of SB 311 can be read in full here. It’s true that Democratic and Independent senators did vote to block that bill’s progress, but the above-displayed Facebook meme leaves out crucial context — federal and state laws already provide protections for babies born alive after abortions — and obscure the stated reasons for those votes, an essential component of any evaluation of a legislative vote. Overall, we rate the meme’s core claim as “Mostly False.”
The proposed “Born-Alive Abortion Survivors Protection Act” has been stuck in the Senate since February 2019, despite efforts by Republicans to revive it in February 2020. The bill has not been forwarded to any Senate committee, and Republicans have failed on two occasions to obtain the votes necessary to advance the legislation through the Senate.
Those two votes, in February 2019 and February 2020, were on motions of cloture. A motion of cloture is, roughly speaking, a proposal signed by at least 16 senators to close debate on a particular bill. At first glance, that might suggest that those in favor of the cloture motion are opposed to the content of the legislation itself, but in fact, “invoking cloture” is a way to advance a bill’s progress in the Senate by pushing through the debate stage and arriving at a full-Senate vote on the legislation itself. Cloture is a key mechanism for breaking a filibuster in the Senate.
On most matters, a cloture motion must be agreed to by 60% of senators, which usually means 60 votes (except in cases where a Senate seat is temporarily vacant). In the 2019 vote, only 53 members voted “Yea,” and in 2020 that number was 56 — below the 60-vote threshold on each occasion.
It’s worth noting that the Senate has not yet voted on whether to pass SB 311 itself, so a vote in favor of a motion for cloture should not be conflated with a vote in favor of the substance of the legislation. However, it is reasonable to assume, in general, that senators who voted to push SB 311 through to the next stage towards enactment were also in favor of enacting the bill itself, and those who voted against the cloture motions were doing so in order to halt the legislation’s progress because they opposed its contents.
This assumption is borne out in the partisan contours of the 2019 and 2020 cloture votes: On both occasions, no Republican voted against the motion, and only Democrats voted against it (including Independent Sens. Angus King of Maine and Bernie Sanders of Vermont, who both caucus with the Democrats). On both occasions, three Democrats crossed the floor and voted in favor of the cloture motions: Sens. Bob Casey of Pennsylvania, Joe Manchin of West Virginia, and Doug Jones of Alabama.
The exact claim in the Facebook meme is somewhat confusing. The caption refers to 41 senators, but the list contains 44 names. In February 2019, all 44 of the senators listed in the meme voted against the Republican cloture motion. However, in February 2020, 41 of them voted against the cloture motion, with the remaining three not voting (Sens. Amy Klobuchar of Minnesota, Elizabeth Warren of Massachusetts, and Sanders). So it’s not clear to which vote the meme refers. However, on each occasion the wording of the cloture motion and the question put to senators was identical, so the distinction is only a formal one.
The Content of SB 311
In evaluating whether the Democratic senators listed in the meme did, in fact, “vote to let babies scream until they die if born alive,” it is necessary to assess the reasons for their votes against cloture motions and the effect of the failure of the cloture motions.
It hardly needs to be said, but neither the bill itself, nor any statements made by the Democratic senators who opposed it, contained any mention of “babies screaming until they die.” So in voting against the progress of SB 311, no senator was explicitly voting in order to bring about that outcome, in those terms. Rather, that phrase was a characterization of the effect of the votes, which originated from the creator of the Facebook meme.
By voting against the cloture motions, the senators halted the progress of a bill that, if enacted, would mean that federal law required health care practitioners to provide the same life-saving treatments and interventions for a baby born alive after a failed abortion (including admitting the baby to a hospital) as they are currently required to provide to babies born alive under other circumstances.
The bill would also mean that health care practitioners would be required, under federal law, to report to law enforcement if they became aware that someone else had violated those requirements. Any health practitioner convicted of failing to fulfill those requirements, or failing to report someone else’s violation, would be liable to be fined and/or imprisoned for up to five years. SB 311 would also mean that a person found to have intentionally killed a baby born alive after a failed abortion would be liable to conviction and punishment under the federal prohibition against murder.
Does this mean that by preventing the passage of SB 311 Democratic senators were allowing health care practitioners to lawfully let babies die, without rendering aid, if they are born alive after a failed abortion? Not really.
Federal law already explicitly states that babies born alive, regardless of the circumstances, are human persons and should be treated as such in the context of criminal law. The Born-Alive Infants Protection Act was signed into law by U.S. President George W. Bush in 2002. It states that:
(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
This means that intentionally killing a baby born alive can be, and is, prosecuted as murder, since the baby is defined under the 2002 act as a human person. In principle, it also means that doctors and nurses have the same professional, legal, and ethical responsibility to babies born alive after failed abortions as they do to babies born alive in other circumstances.
The 2002 law does not include an explicit, affirmative duty of care for health care practitioners and does not stipulate any penalties for failing to provide appropriate care. However, many individual states do.
Based on research originally published by the anti-abortion Family Research Council, Snopes checked legislation in all 50 states and found that, as of Aug. 20, 2020, 34 states have laws that explicitly either: affirm the equal right to medical care of a baby born alive after an abortion; or assert an affirmative legal obligation for medical practitioners to provide care; or set out criminal penalties for failing to provide care; or all of the above provisions. A full list of each state’s “born alive” abortion laws, including links to the original legislation, can be found here.
(Note: At the time of the first cloture vote in February 2019, the number of states with “born alive” abortion laws was 33. West Virginia’s Senate passed the state’s own Born-Alive Abortion Survivors Protection Act on Feb. 10, 2020, and Gov. Jim Justice signed it into law on March 2, 2020. By the time the U.S. Senate had its second cloture motion on Feb. 25, 2020, Justice had already vowed to sign the West Virginia law, meaning the number of states with “born alive” abortion laws was imminently about to become 34.)
The effect of the decision to block the progress of SB 311 through the U.S. Senate was to preserve the legal status quo around the country, namely that: two-thirds of states already had laws offering various levels of protection for babies born alive after failed abortions, and various levels of criminal penalties set out for health care practitioners who fail to provide care for them; and that federal law already recognized that babies born alive after failed abortions should be treated as human persons in the context of criminal law. This significantly undermines the Facebook meme’s claim that the 44 senators had voted to allow babies to be left to die if they are born alive after a failed abortion, because that it isn’t the case in most states.
However, passing SB 311 would mean that there would be no ambiguity about the criminal implications and consequences of the 2002 law. Under SB 311, federal law would unequivocally set out a legal duty of care and a reporting obligation for health care professionals, as well as specific criminal penalties. While the 2002 law empowered states to enact their own “born alive” abortion laws, and 34 states have opted to do just that, 16 states have not, and SB 311 would introduce a “born alive” abortion law that would apply uniformly throughout the entire country. By voting to block the progress of SB 311, the Democratic and Independent senators did undoubtedly prevent that outcome from becoming much more likely.
In evaluating whether voting against the cloture motions on SB 311 meant the 44 senators were voting to allow babies born alive after abortion to simply die without medical aid, it is also necessary to examine the reasons why the senators voted the way they did.
In general, the Democratic senators who gave statements about their votes on SB 311 said that they had opposed the passage of the bill because they felt it was unnecessary in light of existing law and because they felt it inappropriately criminalized health care practitioners and interfered in the doctor-patient relationship. None said they had voted against the cloture motions in order to allow babies to be left to die or expressed indifference about that outcome.
Sen. Tim Kaine of Virginia, for example, wrote, “We should not unnecessarily create new federal crimes and penalties to punish behavior that is already illegal under existing state and federal laws.” Sen. Ben Cardin of Maryland wrote, “It has always been illegal to kill or harm a newborn infant, and this bill had nothing to do with that. Instead, this bill would have subjected medical professionals to unprecedented criminal liability and inappropriately comes between a woman and her doctor.”
Sen. Mazie Hirono of Hawaii said SB 311 was “a solution in search of a problem,” adding, “Contrary to what the proponents of this bill argue, it is and has always been a crime to harm or kill newborn babies. And people guilty of this crime can already be charged and prosecuted to the fullest extent of the law.”
Speaking from the floor of the Senate, Sen. Tammy Duckworth of Illinois emphasized the fact that abortions that take place late enough for a fetus to show vital signs overwhelmingly occur in the context of a late diagnosis of a fetal abnormality that will, in short order, prove fatal. She stated that her reason for opposing SB 311 was that it would exacerbate the suffering of parents in such scenarios and force health care practitioners to attempt medical interventions that they know to be futile.
… Imagine the heartbreak of going to the doctor one day and learning that there’s no chance your baby will survive… that there’s no hope your baby girl will ever speak her first word or take her first step … Or that delivering her would put your own life at risk, leaving your firstborn to grow up without a mother. These are the types of scenarios that lead to the heart-wrenching decision to terminate a pregnancy later on. As the mom of two little girls, I can’t begin to fathom that kind of pain.
And yet today, some on the other side of the aisle are trying to use those parents’ suffering for political advantage … making worst-case scenarios like these all the more difficult by pushing a bill aimed to criminalize reproductive care no matter the cost. If it becomes law, this bill would force doctors to perform ineffective, invasive procedures on fetuses born with fatal abnormalities … even if it’s against the best interests of the child. Even if it goes against recommended standards of care and they know it wouldn’t extend or improve the baby’s life. Even if it would prolong the suffering of the families … forcing women to endure added lasting trauma … making one of the worst moments in their lives somehow even more painful. If physicians refuse, they’d be punished … sentenced to up to five years in prison.
In February 2019, the American College of Obstetricians and Gynecologists and the American College of Nurse-Midwives co-signed a letter to U.S. Senators, urging them to vote against SB 311 for similar reasons to those given by Duckworth and others, writing:
“It [S. 311] injects politicians into the patient-provider relationship, disregarding providers’ training and clinical judgment and undermining their ability to determine the best course of action with their patients.”
Late-term abortions are exceedingly rare. In 2016, the most recent year for which data was available, the U.S. Centers for Disease Control and Prevention (CDC) reported that just 1.2% of abortions took place after 21 weeks’ gestational age.
Deaths involving babies born alive after an abortion are even rarer. According to CDC data, just 143 newborn deaths were recorded as resulting from spontaneous or induced terminations of pregnancy between 2003 and 2014, a period during which more than 49 million live births took place. The CDC advised that the figure of 143 might be an understatement, but also stated that two-thirds of those newborn deaths involved a “maternal complication or one or more congenital anomalies,” which corroborates the claims of Duckworth and others.