PHOENIX — Gov. Doug Ducey on Friday signed into law what appears to be the most comprehensive restrictions in the country on what doctors have to do if a baby is born alive during an abortion.
Ducey’s action came less than 48 hours after he got the final version.
“I have been consistently pro-life through my time as governor,” said the Republican, who has signed every abortion bill that has reached his desk in his more than two years in the office.
The law, which takes effect this summer, expands on existing statutes that say if there is a live birth, it is the duty of any doctors in attendance to see that “all available means and medical skills are used to promote, preserve and maintain the life of such fetus or embryo.”
But doctors who testified during hearings on SB 1367 told lawmakers that they read the current law to require no special efforts if there is no reasonable chance the child will survive.
They said it would be cruel to subject a premature or severely deformed baby to extraordinary measures that will not save its life. Instead, they said the practice is to provide comfort to the baby and, if the family wants, allow the mother to hold the baby.
The ability to simply provide comfort and not lifesaving measures is limited under the new law.
The new law provides the first-ever definition in statute of being “delivered alive.” In essence, it says that includes any fetus or embryo, no matter how premature, showing breathing, a heartbeat, umbilical cord pulsation or “definite movement of voluntary muscles.”
At that point, medical professionals will be required to do everything possible to keep the baby alive. A separate provision in the law says any clinic that does abortions on women beyond the 20th week of pregnancy must have someone available with neonatal skills to care for the child if born alive.
The state Department of Health Services is now required to develop a list of protocols, along with what equipment must be available in those facilities.
Elizabeth Nash of the Guttmacher Institute, which researches issues of reproductive rights, said what Arizona has had until now — the generic requirement to promote, preserve and maintain life — is similar to that in 34 other states, as well as what is required under federal law.
This change, she said, puts greater requirements on Arizona doctors than anywhere else, with only Arkansas having anything close. Arkansas does not have requirements for things like equipment that must be available in cases of live births, Nash said.
The measure that Ducey signed is not what Sen. Steve Smith, R-Maricopa, initially introduced and shepherded through the Senate. The original proposal included an absolute requirement to provide lifesaving measures in all situations where an abortion results in a live birth.
When several representatives lamented that measure would needlessly prolong life or suffering, Rep. Eddie Farnsworth, R-Gilbert, crafted language to give doctors an out, at least in cases of a “specific lethal fetal condition.” That is defined in existing law as a condition diagnosed before birth, “and that will result, with reasonably certainty, in the death of the unborn child within three months after birth.”
Rep. Kirsten Engel, D-Tucson, said that if a baby is going to die anyway, requiring rapid resuscitations is inappropriate.
“If the fetus or embryo is born alive, according to the definition in the underlying bill, there is an absolute obligation to resuscitate,” she said, with doctors obligated to follow whatever protocols are established by state health officials.
That’s true: Even in those kinds of cases, doctors still will be required to perform “rapid neonatal resuscitation.” Only when a doctor determines that further treatment “will do no more than temporarily prolong the act of dying when death is imminent” does the law eliminate the requirement for further medical care.
Engel said it’s wrong to mandate even that. “It will do no more than temporarily prolong the act of dying,” she said.
There’s another controversial provision in the new law.
The exception Farnsworth added to taking extensive lifesaving measures will apply only to those cases where an abnormality has been diagnosed ahead of time. Doctors are still required to do everything possible for any other live birth, including on a fetus before the point of viability.
Farnsworth was unapologetic for keeping that requirement in place.
He said while the current medical thinking is that viability starts at 24 weeks, that is far from certain, and medical science is changing.
“You don’t ever know when a 20-weeker is going to come out and be viable,” he said.
Farnsworth added that even in those circumstances, there still are limits on what doctors have to do. That comes down to the protocols that state health officials will enact.
For example, he said some doctors testified that they do not have intubation equipment small enough for severely premature infants.
“If the technology doesn’t exist, you can only do what you can do,” Farnsworth said.
Part of what spurred the legislative action is the question of whether existing law allows doctors to make decisions on an ad-hoc basis of when to try lifesaving measures in the case of a live birth.
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, cited a case of an abortion that resulted in a live birth where the baby girl was allowed to die. Herrod said in that case, the girl sat on a cold steel table for 78 minutes without receiving medical care.
Farnsworth said having a definition of being alive — the list including heartbeat and breathing — removes from doctors the ability to determine what actions to take or not take. In some cases, he said, “You could argue that they’ve essentially committed negligent homicide.”
Under the new law, families will be allowed to bring civil lawsuits against a doctor for up to six years.
