Jurisprudence

House Republicans’ “Born Alive” Abortion Bill Isn’t Just Political Messaging. It’s a Cry for Help.

The GOP is beholden to the anti-abortion movement—but terrified of actually passing anti-abortion laws.

Kevin McCarthy gestures with his right hand in front of microphones.
Speaker of the House Kevin McCarthy. Anna Moneymaker/Getty Images

Since the midterms, everyone has wondered where the GOP will go next on abortion, and this week, House Republicans offered an answer. The bill, called the Born-Alive Abortion Survivors Protection Act, passed with uniform support from the House GOP. It would require doctors to offer the same care after abortion that is available to any child of the same gestational age, and it prescribes fines and prison time for doctors who violate it. With Democrats in control of the Senate, the new bill isn’t going anywhere, but that’s not what House Republicans are aiming for. They’re trying to send a message about what the GOP has to offer, in 2024 and beyond.

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If the Born-Alive Act is a messaging bill, it’s best read as a distress signal from a party that doesn’t know what to do with the abortion issue.

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Roe v. Wade is gone, which means, in theory, that anything goes. Anti-abortion groups have proposals teed up, and many would like to see the GOP advance a ban at six weeks (if not earlier). House Republicans have to worry about disappointing base voters who share the movement’s priorities. On the other hand, doing something meaningful to restrict abortion may strike House Republicans as even more politically risky. The GOP is still smarting after a bruising midterm that saw Democrats maintain control of the Senate, win six of six abortion-related ballot initiatives, and hold even House Republicans to the worst modern midterm result for a party out of power in decades. House Republicans have set an impossible task for themselves: pleasing a base that wants nothing less than a national ban without offending the majority of voters who don’t like what the GOP has to say about abortion.

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What they’ve offered are bills to shore up a status quo that took shape while Roe was still good law. House Republicans plan a vote to make the Hyde Amendment, a ban on Medicaid reimbursement for abortion, permanent. At present, the Hyde Amendment gets sneaked into annual appropriations bills for the Department of Health, Education, and Welfare, but it has been impossible to dislodge since it first passed in 1976.

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And then there’s the Born-Alive Act, which would hardly produce a radical change. Born-alive strategies harken back to a series of high-profile cases in the 1970s when physicians faced manslaughter prosecutions for allegedly withholding care or harming infants born alive after abortion. Never mind that the techniques that made a live birth possible (though exceedingly rare) were abandoned over the next few decades: Anti-abortion activists still found the idea of a born-alive bill compelling. In the late 1990s, Hadley Arkes, an activist and professor, proposed a bill that would change the meaning of the word “person” in federal criminal law to include “every infant member of the species homo sapiens who is born alive.” Arkes thought that a born-alive bill would make it easier to justify bans on abortion later in pregnancy and serve as an important step in establishing, as Arkes wrote, “that the claim of the child to protection of the law does not pivot on the question of whether anyone happens to ‘want’ her.”

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That bill passed in 2002, but it wasn’t exactly a major game-changer: The acts Arkes wanted to prohibit were already illegal. The vast majority of abortions take place early in pregnancy, and the safest and most common second-trimester procedure, dilation and evacuation, all but precludes a live birth. Still, incrementalism and caution were necessary while the federal courts still recognized a right to abortion.

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Not so much anymore. There’s nothing stopping the House from passing a bill recognizing fetal personhood and banning all abortions—the ultimate goal of the anti-abortion movement since the 1960s. Even the 15-week abortion ban proposed in the Senate by Lindsey Graham would be closer to what the anti-abortion movement wants than this bill.

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The House GOP seems nostalgic for the world we all lived in a year ago—one that already had both a born-alive law and a Hyde Amendment, one in which Republicans routinely railed against the evils of abortion without having to do anything concrete. But the Overton window has shifted, partly thanks to the GOP itself. Anti-abortion activists are not content with the bans they’ve already passed: They’re pressing for measures that target out-of-state providers and the people who help those seeking abortion, and many are gunning for a national ban. Republicans spent decades pledging their support for personhood, and the anti-abortion movement expects them to deliver, especially since state legislators in places like Texas and Missouri seem more than happy to oblige.

House Republicans seem to know they’ve created a political monster—putting reproductive rights and justice at the center of our politics and fueling a series of bans that even many conservatives and independents reject. But getting themselves out of harm’s way won’t be easy. The born-alive strategy isn’t a messaging bill. It’s a cry for help.

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