U.S. Sen. Tina Smith, a Minnesota Democrat, speaks during a press conference inside the U.S. Capitol building on Wednesday, Jan. 22, 2025. Also pictured is Sen. Patty Murray, D-Wash., left, and Sen. Jeanne Shaheen, D-N.H. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — U.S. Senate Democrats blocked legislation Wednesday that would have established penalties for health care professionals who don’t provide medical care for infants born following an attempted abortion, arguing the bill would have kept parents from making decisions about care for newborns delivered early following a fatal fetal diagnosis.

Republicans said the issue should lend itself to common ground between the two political parties, citing a “loophole” in federal law that could potentially permit health care providers to allow an infant to die, instead of using medical interventions.

The 52-47 procedural vote needed the support of at least 60 senators to advance under the chamber’s legislative filibuster rules, but no Democrats voted to move the bill toward final passage. Tennessee Republican Sen. Bill Hagerty didn’t cast a vote.

The vote marked the first time this year Republicans, who now control both the House and Senate, brought up an abortion bill for debate. The vote took place on the anniversary of the Roe v. Wade decision that established a constitutional right to abortion in 1973, but was overturned by the Supreme Court in 2022.

Oklahoma Republican Sen. James Lankford, who sponsored the eight-page bill, said debate on the legislation was “not just an academic issue,” but one with real-world implications.

“It’s rare, but the question is, what do we do in those situations? How do we track this? How do we engage on it?,” he said.

When an abortion results in a live child, Lankford said, “the current practice is everyone kind of backs away and allows the child to die on the table by exposure because it is against American law in every single state to take the life of a child. But if everybody just steps back and watches the child die that’s okay.”

Lankford cited the story of Melissa Ohden, a woman he says lived following an attempted abortion because a Neonatal Intensive Care Unit, or NICU, nurse noticed her crying and breathing in a pile of medical waste, before rushing her to the emergency department for medical care. Ohden is founder and CEO of the Abortion Survivors Network.

“It was years later that she learned her adopted mom had adopted her because her birth mom literally didn’t know she still existed. Her birth mom was never told that the abortion, quote unquote, didn’t work,” he said.  

‘Killing a baby is illegal in every single state’

Washington state Democratic Sen. Patty Murray said during a floor speech Tuesday the bill was a “sham” and a “disgrace,” before noting that “killing a baby is illegal in every single state.”

“In fact, we passed a law in 2002 that made that crystal clear. I would know because I was here. It passed unanimously,” Murray said. “Doctors already have a legal obligation to provide appropriate medical care to any infant born in this country.”

The legislation, she said, would have created “a new government mandate that would override the best judgment of grieving families who find out their fetus has a fatal condition.”

“And it would create new, medically unnecessary barriers for doctors and patients, at a time when doctors already have their hands tied when it comes to providing basic reproductive health care,” Murray said.

New Hampshire Democratic Sen. Jeanne Shaheen said during a press conference on Wednesday ahead of the vote she wasn’t concerned about Republicans using the vote against vulnerable incumbents up for reelection in 2026.

“I have run now in seven statewide races in New Hampshire and in every single one of those races, I have been attacked by Republicans for my support for allowing women to make their own decisions,” Shaheen said.

“It’s not a decision that I should make as a senator, that the court should make, that the men who are in the Senate should make,” she added. “It’s a decision for women and their families. And for those people who don’t understand that, they are on the wrong side of morality on this one.”

Georgia Sen. Jon Ossoff and Michigan Sen. Gary Peters are the two most vulnerable Democrats up for election in 2026, both representing states President Donald Trump won in November’s presidential election.

Details of Senate legislation

Lankford’s bill would have required medical providers “to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.”

The bill adds that anyone who “intentionally performs or attempts to perform an overt act that kills a child” would be charged with “intentionally killing or attempting to kill a human being.”

It is already illegal to kill children, or adults, under federal law as well as state laws.

The House is set to vote on its own version of the bill, sponsored by Missouri Republican Rep. Ann Wagner and co-sponsored by 130 GOP lawmakers, later this week. But without Democratic backing in the Senate, the bill won’t make it to Trump’s desk.

Wagner’s House bill appeared extremely similar to the Senate version, though the two weren’t marked as “related bills” on Wednesday in the congressional database.

The House approved a version of the bill two years ago following a mostly party-line 220-210 vote, with one Democrat voting for the measure and one voting “present.”

The bill didn’t come up for a vote in the Senate, which was controlled by Democrats at the time.

Congress approved a similarly named, Born-Alive Infants Protection Act of 2002, more than two decades ago, with broadly bipartisan support.

Groups weigh in

Dr. Stella M. Dantas, president of the American College of Obstetricians and Gynecologists, wrote in a statement sent to States Newsroom that the “offensively named legislation does not reflect the reality of abortion later in pregnancy, harms families who receive devastating diagnoses and restricts their ability to choose the path of medical care that is right for them.”

“This legislation is not evidence-based,” Dantas wrote. “Its impacts fall with crushing weight on families trying to access reproductive care in devastating circumstances and limits how clinicians are able to provide care.”

The American College of Obstetricians and Gynecologists writes on a webpage about the differences between abortion and perinatal palliative care that “the idea of ‘abortions’ being performed after delivery of a fetus is” misinformation and that “no such procedure exists.”

Perinatal palliative care, ACOG explains, “encompasses a coordinated care strategy that centers on maximizing quality of life and comfort for newborns who have life-limiting conditions in early infancy.”

“When providing perinatal palliative care, obstetrician–gynecologists’ chief aim is to alleviate the newborn’s suffering and honor the values of the patients involved—namely, the newborn’s parent or parents,” the website states. “Ultimately, the parent or parents, in consultation with their physician, decide which course of perinatal palliative care to pursue.”

Eighteen medical organizations — including ACOG, the Society for Maternal-Fetal Medicine, the American Academy of Nursing and the American Academy of Pediatrics — sent a letter to Congress on Wednesday urging lawmakers not to pass the bill.

Susan B. Anthony Pro-Life America President Marjorie Dannenfelser released a written statement that the 2024 election showed Americans “have clearly rejected the extreme pro-abortion agenda.”

“We cannot continue to turn a blind eye to that baby fighting for his or her life, whether in a hospital or an abortion center, whether that little one is deemed ‘wanted’ or not,” Dannenfelser wrote. “These children must not be discarded like trash. With a new administration in Washington and new majorities in the Senate and House, there has never been a better or more urgent time to protect the life of every newborn equally.”

A SBA webpage about the legislation notes that while the 2002 law was “a step in the right direction,” it didn’t include any “enforcement mechanisms.”

“Federal law and 31 states do not adequately protect the lives of infants born alive after botched abortions (state and federal laws are not necessarily redundant, either),” the webpage states.

Anna Bernstein, principal federal policy adviser at the Guttmacher Institute, wrote in a statement to States Newsroom the bill “misrepresents the reality of care later in pregnancy and seeks to criminalize and intimidate health care providers, despite existing laws that already ensure appropriate medical care is provided.”

“By perpetuating disinformation and stigma, this bill undermines reproductive autonomy and paves the way for political interference in deeply personal and painful decisions, particularly for families facing tragic situations such as fatal fetal diagnoses,” Bernstein wrote.

The Guttmacher Institute, she wrote, “strongly opposes this bill, as it disregards the complexities of people’s lives, attempts to criminalize providers, and perpetuates misinformation about abortion care.”