Abortion Survivor: New York’s New Abortion Law ‘Inexcusable,’ Would Have Left Her Unprotected

The newly-passed Reproductive Health Act repeals New York's previous requirements to provide life-saving care to babies that are born alive after an abortion attempt. "I definitely have some thoughts on that issue," abortion survivor Melissa Ohden said in a video sharing her survival story with The Stream.

By Timothy M. Jackson Published on January 30, 2019

The girl didn’t want an abortion. But her mother, a prominent nurse in Sioux City, Iowa in 1977, forced her into the procedure. The girl was pregnant out of wedlock. Her mother wouldn’t allow it. Her mother’s friend and colleague, Dr. Kelberg, performed the late-term abortion.

Except the baby didn’t die. She was born alive, weighing 2 lbs. 14 oz. But Dr. Kelberg and the baby’s grandmother left her to die. The girl never knew her child was still alive.

A nurse heard the baby girl’s cries and rushed her to the NICU. Melissa Ohden survived.

When a baby like Melissa is born alive after an abortion attempt in New York today, no New York law will protect her life.

That’s as of last Tuesday, when the New York State Senate passed the Reproductive Health Act. It repealed the section of New York law requiring a doctor to provide life-saving care to babies born alive.

“The care of survivors appears to be subject of who is working at that time. That’s inexcusable,” Melissa said. “I’m alive today because that nurse was willing to save me. My life should not be dependent on someone’s willingness to do so. No other children’s lives should be dependent on this.”

The Neglect of Children Born Alive

Born-Alive Abortion Survivors Protection Act

Senator Ben Sasse has just reintroduced a bill called the Born-Alive Abortion Survivors Protection Act, which would require health care practitioners to immediately bring the surviving child to a hospital to be treated as any other baby born at that gestational age. It also provides criminal penalties for health care practitioners who fail to comply. A 2002 federal law with a similar name, The Born-Alive Infants Protection Act of 2002, had no criminal penalties attached to violations. Sasse’s bill would go much farther in protecting babies born alive. No Democrat has yet been willing to co-sponsor this bill.

Does New York’s Reproductive Health Act really neglect to protect babies born in Melissa’s circumstance? Legal scholar Robert P. George, the McCormick Professor of Jurisprudence at Princeton University, confirmed this missing language in the bill: “I don’t see any protection of any kind in the bill for children targeted for death in abortions.”

In fact, language providing these protections has been actively stricken from the law. The New York bill says, “section 4164 of the public health law is repealed.” This part of the law required a doctor to provide life-saving care to babies born alive.

“When an abortion is to be performed after the twentieth week of pregnancy, a physician other than the physician performing the abortion shall be in attendance to take control of and to provide immediate medical care for any live birth that is the result of the abortion,” the now-repealed section read.

The law had required an additional person to be present to take interest in the life of the child, the way the nurse did for Melissa’s life. This is no longer required.

The Most-Commonly Cited Problem With the New Law

The injustices written into New York’s Reproductive Health Act are piling up.

Pro-life advocates are most-commonly heard mourning the law for another reason. The bill states that: “an abortion May be performed by a licensed, certified, or authorized practitioner within 24 weeks from the commencement of pregnancy, or there is an absence of fetal viability, or at any time when necessary to protect a patient’s life or health.”

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This section expands the scope of legal abortion. An abortion could previously be performed after 24 weeks only to protect the life of the mother. Under the new law, an abortion can be performed any time when necessary to protect the mother’s “health.” “Health” is far broader than “life.”

Hadley Arkes, the Ney Professor of Jurisprudence Emeritus at Amherst College, points this out in his book Natural Rights and the Right to Choose. “Under Roe v. Wade and Doe v. Bolton, the ‘health’ of the pregnant woman encompasses ‘mental health.’ Any doctor could testify that his patient would suffer distress if she were denied an abortion, and that was sufficient to satisfy the formula of ‘mental health’.”

Translation: A woman can legally have an abortion performed up to the point of birth for virtually any reason.

Melissa’s story highlights that there’s more than one harm in the new law.

Who Should We Trust To Take Interest in the Baby’s Life?

Even though it is hard to believe a crying baby could be legally abandoned today, the logic is consistent. Put yourself in the mind of a physician legally performing late-term abortions. You have accepted the belief that there is nothing unjust about killing a human being before she is born, whether viable or not.

When this child exits her mother’s body, you find that she is not dead, as you intended. What difference is there in killing this same child moments later in a different location? After all, you believe abortion is all about a private choice between you and the only patient you have recognized: the mother.

If you decide to leave this child to die, you are only fulfilling the original agreement between you and the mother. To kill her child for her. Everything would become much more complicated if you decided to give the child life-saving care.

Saline abortions were performed on children of Melissa’s gestational age at the time. Toxic salt is injected into the amniotic fluid, poisoning the child to death. Labor was then induced when the child was expected to have died: “I weighed 2 lbs. 14 oz. when I was born alive, which indicated to the medical professionals that my birthmother was further along in the pregnancy than the 20 weeks that had been reflected in my medical records. When a neonatologist examined me, he noted that he estimated me to be about 31 weeks gestational age.”

Melissa would not like her chances in another situation like this: “I would not trust my abortionist to have provided me medical care when I survived. Knowing that a nurse rushed me out of the room to the NICU so that others would know that the abortion had failed and I had [been] born alive, I believe she knew just how dire my circumstances were, and knew what would happen to me if she didn’t grab me and rush me out when she did.”

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