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Kansas governor vetoes 'born-alive' abortion bill, but lawmakers likely have the votes to override

Rose Conlon
Kansas News Service

The bill is based on the disputed premise that doctors sometimes leave infants to die if they’re born living as a result of an attempted abortion — something critics say doesn’t happen.

Kansas Governor Laura Kelly, a Democrat, on Friday vetoed the first abortion-related bill to reach her desk this year, setting up a likely effort by conservative lawmakers to override her.

The “born-alive infants protection act” is based on the disputed premise that doctors sometimes leave infants to die if they’re born living as a result of an attempted abortion. A live birth resulting from an attempted abortin is an exceedingly rare occurrence.

The bill would impose criminal charges on doctors who don’t provide certain care to those infants, including immediate transport to a hospital.

A coalition of anti-abortion groups pushed the legislation. It’s seen as a largely symbolic effort to pass incremental anti-abortion legislation despite lawmakers’ inability to ban abortion outright. The Kansas Supreme Court has said the state constitution protects abortion rights, and a significant majority of Kansans voted down a proposal to change that last year.

What would the ‘born-alive’ bill do?

Killing a newborn baby is already considered homicide. Opponents dismissed the bill as a political attempt to stoke misinformation about abortion. They say it could also interfere with palliative care for dying infants.

On top of existing homicide laws, a 2002 federal "born-alive" law explicitly established that newborns have the same legal rights as anyone else. But the Kansas bill goes further by making it a felony for doctors to not follow specific medical steps. It also enables parents to sue doctors in those instances, and creates new data reporting requirements.

In a statement accompanying her veto, Kelly called the legislation “misleading and unnecessary.”

“The intent of this bill is to interfere in medical decisions that should remain between doctors and their patients,” she said.

Kansans for Life, one of the groups behind the bill, called Kelly’s veto “heartless.”

“This once again proves how out of touch Gov. Kelly is with the values of the people of Kansas,” spokesperson Danielle Underwood said in a statement. “We now call on all Kansans to urge their legislators to do the right thing and override Gov. Kelly's heartless veto."

Lawmakers appear to have the votes needed to override her veto when they return to the Statehouse at the end of the month. The Senate passed the bill 31-9 last month with two Democrats joining Republicans to support it, and the House approved the bill 86-36 earlier this month with three Democrats joining Republicans. Overriding a veto requires 27 votes in the Senate and 84 votes in the House.

Conservative state legislatures have enacted “born-alive” bills in more than a dozen states in recent years, and Montana voters rejected a similar proposal in November. The Republican-controlled U.S. House of Representatives approved a similar bill earlier this year, but it is not expected to pass the Democratic-controlled Senate.

How often are infants born living during an abortion?

During an emotional committee hearing on the Kansas bill, Coffeyville Republican Rep. Ron Bryce, a physician, said that years ago as a medical resident he took a premature infant born during an abortion to the neonatal intensive care unit. He said the infant died a few hours later.

“Though strong enough to temporarily live outside the womb,” he said, “he was too young to survive for very long.”

There is no recent national or Kansas data on live births during abortions, but medical experts say it’s a very rare occurrence. Those rare cases, they say, are usually the result of a later abortion due to severe pregnancy complications. Kansas already prohibits abortions after 22 weeks — generally considered to be before viability — and over 90% of abortions happen in the first trimester.

“There are conditions of pregnancy which can be devastating and often life-threatening that may result in an extremely premature neonate being born with signs of life and no chance of survival,” Jennifer Villavicencio, lead for equity transformation at the American College of Obstetricians and Gynecologists, said in an email.

“These cases almost always involve highly desired pregnancies, and are heart-wrenching,” she added.

Critics say the bill could interfere with palliative care

Opponents of the Kansas bill say it could force doctors to take dying infants with no chance of survival away from grieving parents.

“Terminal infants would be ripped from their parents’ arms and forced through painful, medically unnecessary procedures that would only prolong their suffering,” said Aileen Berquist, policy director for the ACLU of Kansas, in written testimony.

Others said it would force families to foot the bill for expensive medical interventions that doctors know are futile, but necessary to avoid prosecution.

“If we pass this, we are actively choosing to put Kansas families into medical debt,” Rep. Christina Haswood, a Democrat from Lawrence, said during a House floor debate last month. “In rural areas, how far is your local hospital? How much does that ambulance ride cost, or that helicopter ride?”

But Rep. John Eplee, a Republican from Atchison, said the bill concerns a “basic human rights issue.”

“Granted, 98, 99% of these infants are going to pass away shortly after delivery — some a few minutes, some a few hours, ” he said. “But during that time, it should be our duty to provide appropriate, compassionate end-of-life care.”

At one point during debate, Democrats tried to wholly replace the text of the bill with text that would expand Medicaid in the state.The amendment was ultimately declared not germane.

The bill is one of several anti-abortion measures conservative Kansas lawmakers are pushing. Last week, they also sent a bill to Gov. Kelly’s desk that would require that doctors give patients unproven information that the effects of abortion pills may be reversible. It also spells out that certain care for pregnancy complications and miscarriages is not considered abortion under state law.

And they’ve added $2 million in state funding for anti-abortion crisis pregnancy centers through an “alternatives to abortion” program to the state budget, and could funnel up to $10 million to those centers through a sweeping tax credit proposal.

Rose Conlon reports on health for KMUW and the Kansas News Service.

The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.

Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Rose Conlon is a reporter based at KMUW in Wichita, but serves as part of the Kansas News Service, a partnership of public radio stations across Kansas. She covers health, the social determinants of health and their connection to public policy.
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