What Arizona's latest abortion law really does

The emotional debate surrounding Arizona legislation that specifies what doctors must do if a baby is born alive during an abortion has created confusion, concern and misinformation.

The Legislature has passed and Gov. Doug Ducey has signed into law Senate Bill 1367. It takes effect later this summer.

Here is key information about what the new law, sponsored by Sen. Steve Smith, R-Maricopa, and pushed by the conservative Center for Arizona Policy, actually does:

Existing Arizona law

Under current law, if a baby is "delivered alive" during an abortion, it is the duty of any doctors present to see that "all available means and medical skills are used to promote, preserve and maintain the life" of the baby.

"Delivered alive" isn't defined in law, and medical experts testifying against the bill at a previous hearing have said that gives them flexibility, requiring them to do everything possible to save the life of the fetus only if they believe it has a chance of surviving outside the uterus.

According to Dr. Peter Stevenson, a neonatologist, the decision to resuscitate depends on whether intervention is futile. Fetuses born at 20 to 21 weeks gestation have zero chance of survival and the standard of care nationwide is to provide "comfort measures" instead of resuscitation, he wrote in a letter to the Legislature.

That may involve wrapping the baby after it is born and allowing the parent to hold it until it dies.

He said the survival rate at 22 weeks for optimal candidates is 11 percent, and at 23 weeks it is 40 percent. At that point, he said, the national standard of care is to evaluate the individual situation and work with the parents to decide how to proceed.

Current law does define abortion.

Definition of abortion

Under Arizona statute, an abortion is "the use of an instrument, medicine or drug or other substance or device with the intent to terminate a pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to terminate an ectopic pregnancy or to remove a dead fetus."

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That covers the more commonly thought-of instances of a woman seeking to end an unwanted pregnancy by undergoing either a medication or surgical abortion to remove the fetus.

But it also includes terminations of pregnancies in situations where a woman learns her fetus suffers from a fatal congenital anomaly and is told it will not live more than a few minutes, hours or days beyond birth. Often under those circumstances, women choose to be artificially induced earlier in their pregnancy and deliver the baby.

What SB 1367 does

While the law has been broadly described as "anti-abortion legislation," it doesn't propose direct restrictions on abortions. It proposes new requirements for both abortion clinics and other medical providers to follow. Specifically, it:

• Defines "delivered alive" as a baby, regardless of the state of gestational development, who is born showing one or more of these signs of life: breathing, a heartbeat, umbilical cord pulsation or definite movement of voluntary muscles.
• Requires doctors to take measures to "maintain the life" of any fetus delivered alive during an abortion - regardless of gestational age.
• Requires the Arizona Department of Health Services to set policies that clinics, hospitals and physicians must follow to care for any baby delivered alive at 20 or more weeks of pregnancy, including having at least one person in the room during the abortion who is trained in neonatal resuscitation and requiring that rapid neonatal resuscitation - which includes positioning the airway, providing warmth and giving oxygen - be performed on the baby.
• If the abortion is performed due to a fetal anomaly, the doctor must document the specific condition that was diagnosed before the abortion and examine the baby after it is born to confirm the anomaly. The doctor must tell the mother before the abortion that the post-birth examination and rapid neonatal resuscitation still are required. Once those requirements are met in these cases, additional action is at the doctor's discretion.
• Requires clinics performing abortions on a fetus 20 weeks or older to have equipment on hand to care for a baby of that age delivered alive.
• Requires clinics to call 911 and immediately transfer to a hospital any baby born at 20 weeks or older during an abortion.

Why supporters say the bill is needed

​Bill supporters cite two Arizona cases in which an aborted fetus may have been born alive but soon died.

Last year, an abortion clinic worker called 911 after she believed she may have seen a fetus move or breathe. The fetus was taken to the hospital with no vital signs and pronounced dead. The Arizona Attorney General's Office investigated the incident and found no wrongdoing. If the proposed law was in place, Herrod has said, the clinic would have had equipment that could have saved the baby's life.

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A woman was convicted in Phoenix of using state Medicaid funds in 2010 to pay for an abortion after lying about having cancer. According to legislative testimony from Smith, law-enforcement documents reported the woman's 22-week-old fetus was born alive, survived for about 20 minutes and didn't receive lifesaving measures.

Supporters said this would prevent such "barbaric" incidents and give the baby a chance of survival.

Congenital anomalies

Because of the existing definition of abortion, the requirement to try to save the baby's life also would apply in cases in which a mother and doctor choose to induce a woman after a doctor determines the fetus has a fatal anomaly and is not expected to survive long after birth. But the requirements are not as extensive for these babies as for babies born with no pre-diagnosed anomaly.

In cases of anomalies, doctors must perform a post-birth exam to confirm the fatal problem and then staff must perform rapid neonatal resuscitation. If the doctor at that point determines that additional action will only temporarily prolong the act of dying, no further measures are required.

If the mother chooses to carry to full term or as close as possible and then induce, the life-saving measures are not required.

These instances are the focus of the opposition to the bill. Opponents have said such measures may be "cruel and painful" for a baby with no chance of survival and would strip parents of their final peaceful moments with their baby.

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Supporters argue that doctors aren't always accurate in their diagnoses and should be required to do everything possible to save these babies as well.

Congenital anomalies are uncommon. They involve chromosome disorders such as Down syndrome, inherited disorders such as cystic fibrosis and neural tube defects that result in the incomplete development of a brain or spinal cord. The latter category can range from milder cases of spina bifida to anencephalus, in which the baby is born with only part of a brain.

Some anomalies can be discovered earlier in a pregnancy via ultrasound or blood test. Others are often determined through a test of amniotic fluid, usually done between the 15th and 20th week of pregnancy.

Arizona cases

The Arizona Department of Health Services tracks birth and abortion data, but it's unclear exactly how many babies each year would be affected by this bill. Annual DHS reports do not include specific data about how many pregnancies are induced early because the baby isn't expected to survive, but it does offer some broader statistics indicating the percentage likely is small.

There were 98,027 pregnancies in Arizona in 2015.

Of those, 12,479 ended in abortion. DHS reported 220 of those abortions were performed at 20 gestational weeks or later. There were an additional 141 cases in which a pregnancy at 20 or more weeks of gestation was ended through "induced termination."

RELATED: Fewer abortions in Arizona during 2015, state says

There were 85,024 babies born in 2015.

Of those, DHS reported 408 were born with congenital anomalies, including 20 with anencephalus. It reported 235 of the 85,024 infants born died within their first seven days of life, but it did not detail how many of those died due to a congenital anomaly. This bill could apply to some of those 235 instances, if a doctor induced delivery early.

Deja vu?

The fight over this bill is reminiscent of a similar battle from 2012 over fetal defects.

The Center for Arizona Policy successfully pushed a bill in 2012 that would have banned all abortions after 20 weeks despite arguments that it would affect families who discover, often after that point, that their child has a fatal fetal defect.

The federal court struck down the law as unconstitutional.

Who pays the bills?

As with any other birth, the medical costs of these requirements would fall to the parents and the insurance companies.

According to hospital data, the charge for a delivery of a newborn with no complications often costs a few thousand dollars. Phoenix Children's Hospital cost data indicates care for the tiniest infants born with significant medical conditions can top $250,000.