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Explainer: Executive Order to protect born-alive babies

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September 29, 2020

President Trump signed an executive order that seeks to ensure that “infants born alive, no matter the circumstances of his or her birth, have the same dignity and the same rights as every other individual and are entitled to the same protections under Federal law.”

The “Executive Order on Protecting Vulnerable Newborn and Infant Children” clarifies several existing laws, including the Emergency Medical Treatment & Labor Act (EMTALA), Section 504 of the Rehab Act and the Born-Alive Infants Protection Act to ensure born-alive babies in American hospitals are entitled to non-discriminatory access to medical care,with the consent of a parent or guardian, when they present at hospitals receiving Federal funds.

EMTALA ensures an individual’s access to emergency medical screening and stabilizing services, regardless of the ability to pay. The Executive Order clarifies thatE MTALA applies to all children, including those born prematurely, are born with a disability, or survive an abortion. It further clarifies Section 504 of the Rehab Act, which prohibits discrimination against individuals with disabilities by programs and activities receiving Federal funding. The Born-Alive Infants Protection Act makes clear that all infants born alive at any stage of development are considered persons for purposes of these and other federal laws and are, therefore, afforded the same legal protections as any other person.

Even though there are existing laws, some hospitals refuse to properly provide lifesaving medical care to babies who were born prematurely, with a disability or babies surviving an abortion. The Executive Order directs the Secretary of the Department of Health and Human Services (HHS) to “ensure that individuals responsible for all programs and activities under his jurisdiction that receive Federal funding are aware of their obligations toward infants, including premature infants or infants with disabilities, who have an emergency medical condition in need of stabilizing treatment, under EMTALA and section 504 of the Rehab Act, as interpreted consistent with the Born-Alive Infants Protection Act.”

The Office of Civil Rights at HHS has passed regulations under Section 504 of the Rehabilitation Act to further clarify the protections, and have a complaint portal where the public can file a complaint if they believe that a child has not received proper medical care.

Why is this important?

Any measure that seeks to protect vulnerable born-alive babies ought to be applauded, because Christians affirm that every life, both unborn and born has inherent dignity and worth. We should celebrate when our laws protect all life. The majority of Americans support limits on abortion. According to a Marist poll, 70% of Americans would limit abortion to the first three months of pregnancy, or to a more stringent requirement. Nearly half of those who identify as pro-choice (47%) also support such restrictions. Labeling someone as “pro-choice” doesn’t clearly indicate how they view restrictions and limits on abortion and lumps everyone into the same category.  

What’s next?

This executive order is a positive announcement of administrative policy, yet, a permanent and legislative solution is needed. Congress should swiftly pass the Born Alive Abortion Survivors Protection Act to ensure that every child, including those who survive attempted abortion, is fully protected under the law. This important bill would amend the federal criminal code to require any health care practitioner who is present when a child is born alive following an abortion or attempted abortion to, first, exercise the same degree of care as reasonably provided to any other child born alive at the same gestational age, and second, ensure that such a child is immediately admitted to a hospital.

The ERLC is committed to defending the vulnerable at every stage of life. Withholding medical care from an infant who was born alive denies the human dignity affirmed to them by God. Such a callous dereliction of responsibility by both the legal system and medical profession also denies that child’s basic human right of life as guaranteed by the United States Constitution.