WASHINGTON -- Sen. Tom Cotton has again introduced legislation directed at assisting families affected by miscarriages and stillbirths, which includes offering a refundable tax credit to those with a stillborn baby.
The HEALING Mothers and Fathers Act would amend the Family and Medical Leave Act to provide women and their spouses with 12 weeks of unpaid leave in situations involving the "spontaneous loss of an unborn child." Mothers and couples affected by a stillbirth would be eligible for a tax credit whose amount would equal the child tax credit.
Cotton, R-Little Rock, first introduced the legislation in November 2021 as Republican Rep. Ashley Hinson of Iowa introduced a related measure in the House of Representatives. Nine Republican senators, including John Boozman, R-Rogers, are co-sponsoring the newest Senate bill.
"The loss of an unborn child is a tragedy for any family, and parents who lose an unborn child still have to incur many expenses that parents of a healthy child do, such as furnishing a nursery or purchasing baby clothes or other baby supplies," Cotton told the Arkansas Democrat-Gazette.
"While no amount of money can take away a family's pain, we can ensure that grieving parents at the time they need to mourn the loss of their child can ease the additional costs that they face."
Cotton introduced his bill last Tuesday, days before the 30th anniversary of President Bill Clinton signing the Family and Medical Leave Act into law. Clinton commemorated the anniversary last Thursday at the White House alongside President Joe Biden and Vice President Kamala Harris.
"I think it's an unintended gap in the law," Cotton said. "Women who have a stillbirth or even a miscarriage oftentimes have medical complications, both physical and emotional."
The first bill followed the creation of a similar tax credit for Arkansas families impacted by a stillbirth. State Rep. Les Eaves, R-Searcy, led the effort to pass Paisley's Law, which is named after Eaves' granddaughter, who did not have a heartbeat before her birth.
"You leave the hospital like a normal person with a baby born alive leaves," Eaves said. "You've got all your flowers and gifts, and they wheel you out in a wheelchair, put you in your car and pack your car with all the things that are at the hospital with you. You go home to your nursery, and there's nothing else to add to the nursery."
Around 21,000 babies are stillborn -- or die during or after the 20th week of pregnancy -- in the United States each year, including 318 babies in Arkansas. The Natural State's fetal mortality rate is higher than the national rate, with 8.94 fetal deaths per 1,000 births compared to the overall rate of 5.74 deaths. Black women are also more than twice as likely to have a stillbirth compared to white and Hispanic women.
"Most people are blissfully unaware that stillbirth even happens any more," Jill Wieber Lens, the Robert A. Leflar Professor of Law at the University of Arkansas School of Law, said. "We think it is something that happens in low-income countries and something that happened maybe in the 1920s, but not now."
Lens encouraged Eaves to introduce Paisley's law following her own experiences. Her son, Caleb, died during the 37th week of pregnancy, and Lens gave birth after his death.
"Not only do you have to go through all that grief and pain, but the very next thing you have to do is prepare and pay for a funeral," Eaves said.
Arkansas is one of a few states that offers a tax credit to those affected by a stillbirth as a result of Paisley's Law. The legislation created a $500 income tax credit for individuals affected by the stillbirth of a child. Eaves told the Arkansas Democrat-Gazette that he is drafting legislation to increase the amount to $1,500.
"I'm sad that parents have to go through these things, but it makes me extremely grateful that our federal delegation recognizes the importance of this issue," Eaves said of Cotton's efforts. "As Paisley's grandfather, it's also a nice feeling to know that if they are able to get it done, that her life made a difference to a lot of people."
Lens approved the provision relating to the tax credit, noting that parents whose baby dies after birth are eligible for a tax credit, yet parents with a stillborn baby do not have this resource.
"That has always seemed very illogical to me," she said. "In both of those scenarios, parents have incurred the exact same expenses preparing for that kid. So I think, logically, if the parents whose baby died just after birth are able to get a tax credit, I would think that should apply to especially late stillbirths."
One section of Cotton's bill that concerns Lens involves abortion services. The introduced legislation states that related funding could not be used for abortion services, and grants and other dollars for family planning could not go to entities that offer abortions or refer patients to an abortion provider.
"We want women and people with the capacity for pregnancy to be able to access the best health care possible, right?" Lens said.
"Some of those same entities that might provide abortions or refer abortions are also doing preventive screenings and just general health care for women. The healthier you can be before you have a pregnancy, the better. That will actually help prevent miscarriages and stillbirths."
Federal Title X family planning program funds cannot be used for abortion services. Cotton compared the inclusion of the language to the Hyde amendment, which lawmakers traditionally approve during the appropriations process. The Hyde amendment prevents federal money from covering abortion services with exceptions for rape, incest and the woman's health.
"It's a belt-and-suspenders approach," the senator said.
Cotton's introduction of the legislation comes early in the 118th Congress, whose chambers are split between the major political parties. Democrats control the U.S. Senate, while Republicans are the majority party in the House.
"We're going to try to expand our support to gain at least some Democrats, and we'll also work with our counterparts in the House of Representatives as well," Cotton said.
"The House typically moves faster than the Senate," he added. "I would welcome such action because I think it would be a positive step to achieve our goal, which is to ensure we are providing fair and equal coverage for families irrespective of their child's health at birth."