Congress Delivers Born-Alive Infants Protection Act

Life Insight- A Publication of the NCCB Secretariat for Pro-Life Activities

Vol. 13, No. 3 July-August 2002

Congress Delivers Born-Alive Infants Protection Act

Possible item of interest to "Ripley's Believe It or Not": For the first time since becoming Senate Majority Leader in May 2001, Sen. Tom Daschle (D-SD) allowed a pro-life measure to reach the Senate floor for a vote!

A seemingly modest bill, the Born-Alive Infants Protection Act was first introduced in July 2000 and passed the House two months later on a lop-sided vote of 380-15, only to be killed in the Senate by an anonymous objection to a request for unanimous consent. Later, attached as a rider to the Patients' Bill of Rights, the pro-life bill passed the Senate 98-0, but it died with that legislation.

Reintroduced in the 107th Congress, the measure (now H.R. 2175) was again passed by voice vote. The Senate agreed to the bill by unanimous consent on July 18, 2002. The Born-Alive Infants Protection Act became law on August 5 at a signing ceremony in Pittsburgh, to which President Bush invited both nurse Jill Stanek, who shocked the country with her eye-witness account of live-birth abortions in a suburban Chicago hospital, and Gianna Jensen, who survived a saline abortion.

Put simply, the Act provides – for the purpose of federal law – that the words "person," "human being," "child," and "individual" shall include "every infant member of the species homo sapiens who is born alive at any stage of development." The measure also codifies the definition of "born alive" found in the laws of most states – evidence of heartbeat, respiration, and/or voluntary movements after the infant's complete expulsion from the mother.

From its simplicity and from the nearly unanimous votes in Congress one might conclude that no one could oppose it, but that assumption would be wrong. As Professor Hadley Arkes of Amherst anticipated when he conceived this bill over a decade ago, organized pro-abortion groups could not sit by silently while Congress recognized the full humanity of prematurely born children even outside the womb.

Why the Opposition?

Supporters of unrestricted abortion gave three reasons for opposing the Born-Alive Infants Protection Act: it was "unnecessary"; it contradicted Roe v. Wade; and it allegedly misled the public regarding current abortion law and practice.

The National Abortion and Reproductive Rights Action League (NARAL), for example, complained that the bill is "unnecessary because newborn infants already receive full legal protection." As we shall see, however, some doctors and judges have denied that legal rights from birth apply to newborns who survive attempted abortions.

NARAL and others also denounced the bill for "directly contradicting one of Roe's central tenets." Namely, "Roe v. Wade clearly states that women have the right to choose prior to fetal viability." Under their distorted reading of Roe, the privacy "right" to choose to terminate a pregnancy includes a "right" to make sure the child is dead. So if a baby survives an abortion attempt performed before the point of "viability" (or simply slips out alive), as far as NARAL is concerned, it should remain a nonentity, a nonperson. And no efforts need, or should, be taken to preserve the child's life, as would be taken for a "wanted" child born prematurely. Their view, stated plainly, is that the status of a pre-viable "fetus" should not change when she is born alive. It seems to follow that an abortionist is not going far wrong if he kills her by an overt act after her birth!

NARAL also objected to the Act for the following reason:

"This legislation ... seeks to further mischaracterize Roe v. Wade to the American public as a decision that has recently been "expanded" [by Stenberg v. Carhart] to the point that newborn infants are now at risk. Although the legislation was statutorily unnecessary ... it was openly used by its anti-choice sponsors to lure pro-choice lawmakers and advocates into the trap of defending against their preposterous mischaracterizations of the current state of abortion-rights law."

The discussion below should make it clear that supporters of the Act characterized the current state of abortion-rights law accurately.

The Act Is Necessary Due to Developments in Abortion Law and Practice

Nurse Jill Stanek, formerly employed by Christ Hospital in a Chicago suburb, testified to Congress about that hospital's practice of "live-birth abortion." Instead of performing a grisly, mid-trimester abortion, doctors at Christ Hospital simply induced labor, delivered premature infants, and allowed them to die from respiratory distress due to immature lungs. Inductions were scheduled in the weeks just prior to expected "viability"so that children could not survive very long without medical attention. These newborns were simply abandoned to die in a back room or, in one case, accidentally dumped in a hamper with soiled linens. Nurse Stanek was reprimanded for comforting one little victim until he died in her arms 45 minutes later.

Nurses at an Ohio hospital have described caring for babies born alive to patients of partial-birth abortion practitioner Dr. Martin Haskell. Their mothers unexpectedly gave birth outside clinic hours, in a motel or emergency room beyond the reach of Dr. Haskell's scissors. Although some of these children died in the arms of a nurse who took time to cuddle and rock them and sing to them for their few remaining hours, at least one survived and was later adopted.

The research demand for fresh fetal tissue and organs may also be driving abortionists to perform live-birth abortion. Organs are useless to researchers if degraded by poisons or harvested too long after death. Supply contracts sometimes stipulate that organs must be packed for shipping within 10 or 20 minutes after the cessation of blood circulation. A 1990 Redbook article reported that James Bardsley of Anatomic Gift Foundation: "advertises for doctors who use a technique called dilation and evacuation (D&E), in which the fetus is essentially pulled out of the anesthetized woman. Because the fetus is alive when the abortion begins, 'some doctors are squeamish about D&E's,' Bardsley says. But he cannot use fetuses aborted by the more common second-trimester method ... because 'we need tissue that is fairly fresh. We have to process the tissue within minutes of the time of death'" (G. Kolata, "Miracle or Menace?", Redbook, Sept. 1990).

The menace of live-birth abortion comes not only from the relatively small number of doctors willing to cross the line to infanticide. Professor Arkes gives examples of judges and even a U.S. Senator who would deny fundamental human rights to a newborn abortion-survivor and derisively persist in calling the live-born child a "fetus." For example, in 1977 Judge Clement Haynesworth ruled there was no obligation to preserve the life of a child who survived an abortion and surgery and died 20 days after delivery, explaining that, "The fetus in this case was not a person whose life state law could protect."

Arkes also points to a federal appeals court decision striking down New Jersey's law banning partial-birth abortion (Planned Parenthood v. Farmer). In her decision, Judge Maryanne Barry rejected a claim that a child delivered up to his head is "a fetus in the process of being born." Even if the child is alive when he's being removed from the birth canal, one must not speak of "birth" in her view, because a fetus marked for termination is radically different from a "wanted" child in the same physical location.

During Senate debate on the Partial-birth Abortion Ban Act, Senator Rick Santorum (R-PA) tried repeatedly to get supporters of the procedure to explain where they would draw the line on killing a child, if not when she is 4/5ths delivered. He asked Barbara Boxer (D-CA): Could the law not protect the child "once the child is born, separated from the mother"? She side-stepped the question by replying that the child has rights only "when you bring the baby home." When Senator Santorum asked her to clarify her evasive answer, she became irate and refused.

In his dissenting opinion in Stenberg v. Carhart, in which the Supreme Court invalidated a ban on partial-birth abortion in 2000, Justice Antonin Scalia warned that the majority's new application for its own health exception could implicate live-birth abortion. Prior abortion case law discussed the "health exception" in the context of keeping abortion available to serve the mother's mental, physical and emotional "well-being." The Court in Carhart, for the first time, applied the "health exception" to the choice of abortion methods. Because a single practitioner, Dr. Carhart, asserted that the partial-birth abortion procedure was safer for the mother than the widely used dismemberment method, Nebraska could not ban partial-birth abortion without a health exception. Tomorrow, another abortionist could claim that live-birth abortion is safer still (since no instrumentation is involved), and the Court could be bound to find any attempt to ban live-birth abortion unconstitutional without an all-encompassing "health" exception. It is even less invasive to the mother to kill the child completely outside the womb, after all.

Does the Act Contradict Roe v. Wade?

No. The Supreme Court's 1973 holding in Roe v. Wade was that the constitutional "right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The majority opinion went on to state that the scope of this privacy right is not unlimited:

"The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus. ... [It] is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly."

But nowhere does Roe state that her right to decide to terminate her pregnancy equals a right to a dead child, before or after the child's viability, during or after birth. If the goal is to "terminate her pregnancy," that has been accomplished by delivering a (live) child.

What Does the Born-Alive Infants Protection Act Accomplish?

First, the Act establishes a bright line at birth. From that point forward, a child born alive (irrespective of his being "pre-viable" or "unwanted") will be accorded the same rights and protections under federal law as any other "person," "human being," "child," or "individual."

Second, the Act establishes that a child who survives an abortion has an intrinsic worth and dignity as a human person irrespective or whether she is wanted by her mother. This may prove a disincentive to live-birth and partial-birth abortions.

Third, the Act does not establish that such rights are nonexistent before birth. Section 8 (c) reads:

"Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being 'born alive' as defined in this section." In other words, any current or future rights that the child may be acknowledged to have before birth are not foreclosed.

Fourth, as Professor Arkes explains, this bill "confirms the authority of Congress to bar some abortions." For federal purposes at least, Congress has established a precedent that it has authority to ban a method of "abortion," i.e., live-birth abortions. When it again takes up the question of partial-birth abortion, it will have a "firmer groundwork in place," Arkes argues.

In sum, Congress established the proposition that a child's rights and dignity are inherent (and will be upheld at least outside the womb), and rejected the widespread assumption among abortion supporters that a child's rights depend solely on whether he is wanted by his mother. Congress also established that the right to "terminate a pregnancy" does not imply a right to a dead child. And if this is true, doesn't it make sense to say that a child already 80% born should have a right to travel those last few inches to join the rest of us in the realm of fully recognized legal protection?