“Born-Alive” Abortion Survivors Will Be the GOP’s Secret Weapon in 2020

Today, Ohden and Jessen may be the faces of the “Born-Alive Abortion Survivors Protection Act”—the Republican Party’s latest major anti-abortion bill—but this is by no means their first time being spokeswomen for this federal policy, or for abortion restrictions as a whole. Jessen has been testifying in Congress since 1996, when she first was introduced to help pass a ban on intact dilation and extraction (intact D&E) abortions, a procedure the Right reframed as “Partial-Birth Abortion,” and successfully banned in 2003.^18-19

Jessen’s own story involved an older procedure called a saline-induced abortion, wherein a salt solution is injected into the amniotic sac, causing extremely intense contractions that force early delivery.²⁰ A saline abortion bears no resemblance to an intact D&E abortion (which involves no irritants or contractions and instead is performed by a medical professional who removes the fetus manually) but nonetheless, Jessen became an early spokeswoman against it. “I am happy to be alive. I almost died. Every day I thank God for life. I do not consider myself a by-product of conception, a clump of tissue, or any other of the titles given to a child in the womb. I do not consider any person conceived to be any of those things,” the then-19-year-old said in her testimony. “The best thing I can show you to defend life is my life.”²¹

Jessen’s testimony as an abortion survivor was powerful enough to make her a regular figure as Congress debated the federal Born Alive Infants Protection Act of 2002, a George W. Bush-era bill that was eventually signed into law. During its signing, Bush singled Jessen out for thanks. “This important legislation ensures that every infant born alive—including an infant who survives an abortion procedure—is considered a person under federal law,” Bush said. “I appreciate Gianna Jessen, who is an abortion survivor and a pro-life advocate.”²²

Ohden didn’t testify in Congress until 2015, but her story has much in common with Jessen’s. Both women survived saline abortion procedures in 1977, and both were about 30-weeks gestation when the abortion was attempted. (Ohden’s birth mother believed she was only five months pregnant. It is unclear if there was confusion in Jessen’s situation, too.) Ohden was fortunate to suffer no long-term health effects from the attempt, while Jessen was eventually diagnosed with cerebral palsy. Both were adopted after the abortion attempts but eventually met their birth mothers, although only Ohden formed a relationship with hers.

And of course both had their stories used as campaign fodder for the Republican Party during past presidential campaigns. In 2008 Jessen’s was used in an attack ad launched by former Chicago nurse and anti-abortion activist Jill Stanek to draw supporters away from Democratic candidate Barack Obama over failing to vote in favor of an Illinois state version of a born alive act.^23-24 In 2012, Ohden worked with the anti-abortion Susan B. Anthony List to star in a similar ad opposing Obama’s re-election, on the same grounds.²⁵ (This time Stanek, who would later become National Campaign Chair of the Susan B. Anthony List, was featured in the commercial as well.)

By 2015 both activists were testifying in Congress together to urge the government to defund Planned Parenthood Federation of America.  Technically, the House Judiciary Committee hearing on “Planned Parenthood Exposed” concerned disproven claims that Planned Parenthood was “selling fetal tissue”—claims based on secretly-recorded and misleadingly-edited videos.^26-27 Yet Ohden and Jessen both used their platform to again tell the story of their survival after failed saline abortions nearly four decades earlier.

“Planned Parenthood receives $500 million of taxpayer money a year to primarily destroy and dismember babies,” Jessen told the Judiciary Committee. “Do not tell me those are not children. A heartbeat proves that. So does [sic] 4D ultrasounds. And so do I.”²⁸Ohden spoke similarly, stating, “My own tax dollars and yours go to fund an organization that has perfected the very thing that was meant to end my life.”²⁹

But it was in early 2019 that activists like Jessen and Ohden finally made it mainstream.  The 2018 retirement of United States Supreme Court Justice Anthony Kennedy and the subsequent appointment of Brett Kavanaugh made the long-term prospects of Roe v. Wade unlikely, and 13 states began introducing bills to codify Roe in case federal protections end.³⁰ New York led the way with the Reproductive Health Act, a bill that removes abortion from the criminal code and protects a person’s right to a legal pregnancy termination until viability, as well as allow an abortion post-viability if there was a medically indicated need for one.

The new law reasserted the protections inherent in the Roe decision, as well as the companion case Doe v. Bolton. But anti-abortion activists misrepresented the new law as one that would now allow abortion for any reason at any point until birth—an accusation that they have leveled against Doe, as well.^31-32 And that re-opened the door for abortion survivors to once again take center stage.

If the debate over intact D&E taught the anti-abortion movement anything, it was exactly how potent an image of an “abortion survivor” can be. When abortion opponents fought against the Freedom of Choice Act in the early 1990s just after President Bill Clinton was elected, they made D&E and intact D&E the focal point of their campaign. According to abortion scholar Johanna Schoen, North Carolina Right to Life produced a four-page brochure featuring a beautifully dressed, 16-month-old Ana Rosa Rodriguez—a toddler missing one arm as the result of an abortion gone wrong at seven-and-a-half months’ gestation. Other images in the brochure included anti-abortion activist Jenny Westberg’s simplistic yet still graphic drawing depicting an intact D&E abortion procedure.

“‘Everyone would agree,’ a caption next to [Rodriguez’s] photo read, ‘that what happened to Ana Rosa should never happen again,’” writes Schoen in her book Abortion After Roe. Schoen continued:

Ana Rosa’s jarring photo spoke volumes without the young girl needing to say a word. It was at that point that the anti-abortion movement appeared to realize that while gory photos of second- and third-trimester fetal remains could occasionally be effective on the sidewalk outside of an abortion clinic or in other public arenas, to truly shift public opinion on abortion they needed to do whatever necessary to put an undeniably human—and living—face on the topic. And that need became even more explicit after progressive states began their 2019 efforts to codify the protections in Roe.

The “born-alive” fervor hit its apex in January 2019 when Virginia attempted to change local abortion laws to allow just a single doctor to approve a medically indicated post-viability abortion. (The current regulations require three doctors to approve before a termination can be performed.)  Democratic Delegate Kathy Tran fumbled when asked if the proposal would “allow for an abortion to occur when a woman is in labor and about to give birth,” agreeing that she believed it would. Virginia’s Democratic Governor Ralph Northam further exacerbated the issue when he then stated on a radio show that, “There may be a fetus that’s not viable. So in this particular example, if a mother’s in labor, I can tell you exactly what would happen. The infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if that’s what the mother and the family desired. And then a discussion would ensue between the physicians and the mother.”³⁴

Both incidents had the Right screaming that Democrats supported “infanticide”—the murder of a child after it is born—and they trotted out their small cadre of “survivors” to make exactly that point.

Making the rounds, primarily on right-wing television, radio, and other media outlets, were the familiar faces of Jessen and Ohden, but also a newer “survivor” named Claire Culwell. Unlike Jessen and Ohden, Culwell wasn’t born during the process of the abortion her birthmother underwent, but rather was missed by the doctor performing the abortion—who did abort her twin—and was born because no one would perform an abortion when her birthmother realized four weeks later than she was still pregnant.³⁵ While Culwell was born two-and-a-half months premature as a result of pregnancy complications, she most definitely was not a “born-alive survivor” in the frame that abortion opponents were using, but that didn’t stop her from implying that the “Born-Alive Survivors Protection Act” introduced in Congress would have somehow protected her from infanticide.

“This is what it looks like to survive an abortion. After my birth mother’s abortion, I was born with my hips dislocated, I had club feet and I was in body casts to correct what had happened to me…but I STILL deserved to LIVE,” Culwell wrote on Facebook in February. “The Democratic Party of the US Senate voted against a bill that would protect babies like me who survive abortions. Instead, they will leave babies like me to die. It is unfathomable that this is where we are in our country. We MUST do better.”³⁶

Culwell’s rhetoric is misleading at best, and likely deliberately so. The bill in question would have forced any abortion provider who did terminations near the point of viability to have special equipment necessary to keep an extremely premature infant alive (as we see in Arizona, where a similar bill was passed in 2017), requiring what many saw as medically futile and potentially painful interventions on fetuses that may not even have the lung development to survive.³⁷ It would impose criminal penalties for not intervening medically, using the legal code to supersede medical knowledge and experience. Yet with all of its requirements—and the “survivors” advocating for it—there is still little to support the idea that these interventions are needed at all.

There is very little data collected about unsuccessful abortion attempts in clinics and hospitals, in part because the phenomena itself is so rare.³⁸ Current technology allows doctors to accurately date pregnancies, making it unlikely that a provider would mistakenly believe they are terminating a five-month pregnancy when the fetus is really more than seven months’ gestation, and prominent ultrasound use makes missing the number of fetuses in the womb unlikely.³⁹ Meanwhile, most third-trimester abortions are usually performed because of physical issues with the fetus. While viability has technically moved to the point where a fetus can survive earlier than ever before outside a womb (as early as 22 weeks’ gestation),⁴⁰ those cases are rare and require intensive medical care and months of hospitalization and may still include long term health issues.

Still, live births during an abortion have been proven to happen, and those recent cases illustrate just how unnecessary a “Born-Alive Abortion Survivors Protection Act” really is. A Minnesota Department of Health report released in July states that there were three reported cases of live births during an abortion in the year 2018.⁴¹ Of those three cases, one fetus had “anomalies incompatible with life”; one was “previable,” so no futile medical efforts were made; and one received “comfort care…as planned,” i.e., was provided with perinatal hospice care to ease its suffering but received no interventions meant to prolong its life.

In other words, they would offer the exact care that Governor Northam suggested in his radio appearance, which the Right then labeled “infanticide.”

The “Born-Alive Abortion Survivors Protection Act” isn’t just an unnecessary and burdensome answer to a fictitious scenario that has no bearing in the way abortion has been provided for the last three decades. It’s a political tool meant to keep the Republican Party in power after the 2020 elections. Like Jessen in 2008 and Ohden in 2012, conservative groups like the Susan B. Anthony List are determined to create a controversy out of this non-existent crisis in order to peg Democratic candidates as supporting “infanticide” for refusing to vote in favor of the federal bill. The March for Life Education and Defense Fund—which organizes the March for Life, the largest annual gathering of anti-abortion activists in the nation—announced in December that it would make pushing for the passage of “born-alive” legislation its priority for 2020. “‘Born-alive’ is simple,” March for Life Action President Tom McClusky said in a press statement on December 3, according to the Washington Examiner. “This isn’t even an abortion issue. This is a baby born alive after an abortion. You can no longer define it away as a clump of cells or some part that can be removed like tonsils.”⁴² To highlight the legislation, both Ohden and Culwell are featured speakers for the January event.⁴³

Advancing this legislation is a calculated move designed to help President Donald Trump win re-election, and it is assistance that the Trump campaign is eager to accept. More than a year ahead of the 2020 election, Kayleigh McEnany, Trump’s reelection campaign press secretary, argued in The Hill that all of the Democratic candidates stood with Gov. Northam in favor of “infanticide,” and that “they have eliminated the rights of the most vulnerable among us—completely viable, fully formed infants, unable to make a case for themselves.”⁴⁴

But they don’t need “infants” to make a case, as long as they have Gianna Jessen, Melissa Ohden, and Claire Culwell to do it for them. And you can expect all three women to be a part of campaign stops, political ads, right-wing media interviews, and of course even more congressional hearings on the need to protect those who could potentially be “born alive” after a failed second- or third-trimester abortion. Even if that scenario truly doesn’t exist at all.