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Legal aspects of abortion

The "Born-alive infants protection act"


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Overview:

The Born-Alive Infants Protection Act states that any baby that has been born alive is to be legally considered a person. As such, she or he would automatically be granted full protection under the U.S. Constitution. Other existing laws require that newborns must receive medical attention as needed. Killing a born-alive infant would be considered murder. This seems like such an obvious ethical mandate that one wonders who could possibly be against it. Some might wonder why such a bill is needed; after all, it is the traditional function of medical staff to give a baby any needed care after it has been born. Similar state laws exist in most U.S. states. But initial perceptions are sometimes deceptive; situations involving human life sometimes involve complex ethical challenges. 


Voting history:

The bill was originally H. R. 4292. Its status and text is available online. It was re-introduced as H.R. 2175.

It was introduced to the House by Representative Charles Canady (R-FL) on 2000-April 13. He has a long history of pro-life activity. It was approved by the House Judiciary Committee on JUL-26 by a vote of 22 to 1. The only representative to vote against the bill was Rep. Melvin Watt (D-NC); he was concerned that there had been "insufficient time to study how it would affect the application of various federal laws." 1

Thebill was presented to the House with 44 co-sponsors. It was passed on 2000-SEP-26 by a vote of 380 to 15. 2 The re-introduced bill was passed on 2002-MAR-12 by the House. In a "statement of administration policy," the President offered his support for the bill on 2002-MAR-12. 8,9

An identical bill, sponsored by Sen. Rick Santorum, (R-PA), is was passed by the Senate on 2002-JUL-18. 10 It was signed into law by President George W. Bush on 2002-AUG-5. He said:

"This important legislation ensures that every infant born alive -- including an infant who survives an abortion procedure -- is considered a person under federal law. Today, through sonograms and other technology, we can see clearly that unborn children are members of the human family, as well. The Born-Alive Infants Protection Act is a step toward the day when every child is welcomed in life and protected in law. It is a step toward the day when the promises of the Declaration of Independence will apply to everyone, not just those with the voice and power to defend their rights." 11


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What the bill says:

The title of the Bill is "To protect infants who are born alive." It does not accomplish this directly. Rather, it defines that any embryo, fetus or newborn who is "born alive" is a human person. Once it is considered a person, it is protected from harm by other, existing, laws.

The bill contains only two main sub-sections:

  • The first defines the words 'person', 'human being', 'child', and 'individual', as including "every infant member of the species homo sapiens who is born alive at any stage of development." Although the term "infant" normally refers to a newborn baby, here its meaning is extended to also include fertilized ova, pre-embryos, embryos and fetuses.
  • The second explains the term "born alive." As defined for a

"... member of the species homo sapiens, [it] means the complete expulsion or extraction from its mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion." 3 

The second definition was derived from "a model definition of 'live birth' that was promulgated by the World Health Organization in 1950 and is, with minor variations, currently codified in 30 States and the District of Columbia." 4 When the bill became law, it was the first time that the personhood of a "born- alive" member of the human race was codified in federal legislation.

"Embryology textbooks say that the heartbeat begins [in a human embryo] at 18 to 22 days after fertilization." Thus, the law could theoretically apply to an embryo only three weeks after fertilization and a few days into pregnancy: i.e. a few days after the embryo attaches itself to the wall of the uterus.


Motivation for the bill:

The House Judiciary Committee justified the need for the act on the basis of recent "changes in the legal and cultural landscape." These include:

  • Intact D&X procedures (a.k.a. Partial Birth Abortions) have been widely publicized in recent years. What has not been discussed to any degree are the reasons why an intact  D&X procedure is done. It is generally used to terminate a pregnancy in which the fetus has died, or where the continued delivery of the fetus would very seriously disable the woman or threaten her life. The procedure involves the physician partly delivering the fetus, feet first. Its brains are removed; this allows the skull to collapse. The fetus is then fully pulled from the woman. This is considered by some to be infanticide, or something close to it. Although many state laws have been passed to prohibit D&X procedures, they have typically been so obscurely worded that they might have be interpreted as prohibiting a wide range of abortion procedures. The U. S. Supreme Court struck down an Nebraska D&X law in 2000-JUN by its usual 5:4 vote. Supreme Court Justice Thomas wrote that the procedure "approaches infanticide, and thereby dehumanizes the fetus and trivializes human life." The U. S. Third Circuit Court of Appeals overturned a similar New Jersey law in 2000-JUL. The House Judiciary Committee was concerned that if an intact D&X procedure is legal, then it is only a small step to killing a fully-born fetus.

    On 2007-APR-18, the U.S. Supreme Court determined that a 2003 federal law banning intact D&X procedures was constitutional. More details
  • Court decisions: The Judiciary Committee believes that two court rulings have "eroded the born-alive principle and created confusion regarding the legal status of [those] premature infants who survive abortions," but who have little or no chance to survive. The decisions are:
    • The United States Court of Appeals for the Third Circuit's decision Stenberg v. Carhart, on 2000-JUL-26 and
    • The U.S. Supreme Court's decision in Planned Parenthood of Southeastern PA v. Casey on 1992-JUN-29.

    These rulings relied heavily on the viability concept: i.e. whether the fetus can survive on its own. Some have concluded that, in some hospitals, "premature infants who have survived abortions are not legally-protected persons if they have little or no chance of sustained survival." At 22 weeks gestational age, premature infants' immature lungs prevent them from surviving more than a few hours. At 23 weeks, they have about a 39% chance of survival but will probably be seriously and permanently disabled. At 24 weeks, their chances of survival are 50%; they have a lower probability of being disabled.

  • Philosophical argument: Peter Singer, a bioethicist from Princeton University has argued in favor of infanticide. He suggests that parents should have the right to decide to kill their disabled or unhealthy newborn babies within 28 days of birth.

    There may be other bioethicists or even agencies in North America that favor such infanticide; however, they are not widely known. Whenever the topic is discussed, Dr. Singer always seems to be the one person who is mentioned.

    In his book, "Practical Ethics" he discusses a wide range of ethical topics, such as abortion, infanticide, euthanasia, vegetarianism, the refugee problem and the protection of the environment. 5 Singer reasons from a utilitarian perspective that a fetus at a gestational age up to late in the second trimester has no capacity to suffer or feel satisfaction. The higher functions in the fetal brain simply have not developed sufficiently Thus, it is not possible for such a fetus to hold any preferences at all. He believes that if the woman prefers to have an abortion, then termination of the pregnancy is morally permissible. Using a similar argument, he suggests that newborns similarly lack certain essential characteristics of personhood: "... rationality, autonomy, and self-consciousness" Thus, he writes, "... simply killing an infant is never equivalent to killing a person."

The House Judiciary Committee reasoned that if this bill became law, it would impress upon physicians that the federal government considers that born alive embryos, fetuses and newborns are actual human beings under law.


What may happen in hospitals?

In rare cases, a fetus may have a fatal deformity, (e.g. anencephaly or lack of a brain), but is still born alive. Other fetuses which are normal but are born at 22 weeks or less gestation also show signs of life. In both situations, they have zero chance of surviving long-term. No treatment is possible for their condition. Most hospitals have a policy to give these newborns comfort care. This involves keeping the them warm and well fed. The medical professionals treat any any discomfort that the newborn is experiencing. They typically die within a few hours or perhaps a day or two. 

At least one hospital in the U.S. handled other unusual cases differently. The Judicial Committee heard from nurses from Christ Hospital in Oak Lawn, IL. They reported instances of fetuses who had serious but not life-threatening disabilities. Two common problems are:

  • Down Syndrome: This is a genetic disorder that causes the child to be developmentally delayed. The degree of disability from this disorder covers a wide range.
  • A neural tube defect (NTD). Spina bifida is the most common type. This often results in a degree of leg paralysis, and problems controlling their bladder and bowel functions. About 70% of children with the most severe form of Spina Bifida will be able to walk, perhaps with assistive devices.

These disabilities are often detected during pregnancy. Sometimes the pregnant woman will choose to have "induced labor" or "live-birth abortion" before the fetus is full-term.  Christ Hospital's policy was to give only comfort care to the newborns after birth until they died. No evaluations were made whether the newborns could have survived if given appropriate medical assistance. One nurse testified that a live-birth abortion was performed on a healthy infant at more than 23 weeks gestation. This is a time at which premature infants have about a 40% chance of survival, although usually with serious disabilities. The newborn was given only comfort care and died about 2� hours later. The hospital has since changed its policies. It now performs live-birth abortions only on fatally-deformed fetuses.

The House Judiciary Committee also heard of two other similar instances, both in 1998 -- one each in Australia and Germany.


Concerns about the bill:

  • Rep. Melvin Watt (D-NC) expressed concern that the bill was not "studied in a responsible way before being rushed through the Judiciary Committee." Congressional Research Service reported that the bill would amend about 15,000 provisions of the U.S. Code and 57,000 provisions of the Code of Federal Regulations. Apparently, nobody has studied the full affect that the bill would have on existing legislation. Watt commented:

"If we took our roles as lawmakers more seriously, we would examine this bill thoroughly to ensure that it serves only the intended symbolic purpose and does not result in unintended consequences...It is quite apparent that the Majority considered the political objective much more important than the legislative or substantive objective."

  • Jerrold Nadler (D-NY) had three concerns:
    • Considering the tremendous impact that the bill would have on tens of thousands of existing laws, Nadler said: "many implications of H.R. 4292 remain unknown. Consequently, it seems unwise to proceed so quickly."
    • "Because the bill refers to the 'complete extraction or expulsion from its mother' rather than the 'complete extraction or expulsion from the mother's body,' it is unclear whether a fetus that has emerged from the uterus but is still completely or partially in the vaginal canal would fall within the bill's ambit."
    • "...there is concern that the bill, if passed, would require medical professionals to provide treatment that is not mandated under existing and future applicable standards of care."
  • One unexpected impact of the bill might be in the area of wills. A woman might leave her estate to be distributed equally among all of her children, with the provision that if a child pre-deceased her, that their share would be given to charity. If she had two live children and two live-birth abortions for genetic reasons, then this law might imply that she had given birth to four persons during her lifetime. Her grown children might then each receive only one quarter of her estate, instead of the half of the estate that she intended. One can imagine other variations on this theme. 
  • On 2000-JUL-20, the National Abortion and Reproductive Rights Action League (NARAL) issued a press release criticizing H.R. 4292. They asserted that extending legal personhood to premature infants who are born alive after surviving abortions constitutes an "assault" on Roe v. Wade. By providing legal rights to born-alive infants "at any stage of development," including those who had achieved viability, the supporters of H.R. 4292 are "directly contradicting one of Roe's basic tenets."
  • Rep. Stephanie Tubbs Jones (D-OH), testified before the Subcommittee that  providing legal personhood to premature infants who survive abortions "is an attempt to do what the U.S. Supreme Court has strictly forbidden over and over--it unduly restricts a woman's right to terminate a pregnancy.

References

  1. "Bill to protect born-alive infants draws fire from NARAL, but support from key committee," National Right to Life,  http://www.nrlc.org/Federal/Born_Alive_Infants/
  2. "Bill Would Extend Protection To Babies Born Alive," Maranatha Christian Journal, 2000-SEP-30, at: http://www.mcjonline.com/news/00b/20000928e.htm
  3. The text of house bill H.R. 4292 is available at <http://thomas.loc.gov/>
  4. "Committee Report - House Rpt. 106-835 - BORN-ALIVE INFANTS PROTECTION ACT OF 2000," The report is online at http://thomas.loc.gov/
  5. P. Singer, "Practical Ethics," Cambridge University Press, (1993). Read reviews or order this book safely from Amazon.com online book store
  6. "Rep. Canady introduces new bill to protect born-alive infants," National Right to Life Committee, at: http://www.nrlc.org/Federal/Born_Alive_Infants/canady.html 
  7. "Roe v. Wade Faces Renewed Assault in the House, Anti-Choice Lawmakers Hold Hearing on So-Called 'Born-Alive Infants Protection Act',"  NARAL Statement, July 20, 2000.
  8. "Born-alive infants protection act," National Right to Life Committee (NRLC), at: http://www.nrlc.org/Federal/Born_Alive_Infants/
  9. "H.R. 2175 - Born-Alive Infants Protection Act of 2002," 20020MAR-12, at: http://www.whitehouse.gov/
  10. "Senate Passes Born-Alive Infants Protection Act," National Right to Life, at: http://www.nrlc.org/
  11. "President Bush Signs Born Alive Infants Protection Act in Pittsburgh Ceremony Attended by NRLC Officials," National Right to Life, 2002-AUG-5, at: http://www.nrlc.org/

Copyright © 2000 to 2008 by Ontario Consultants on Religious Tolerance
Originally written: 2000-SEP-30
Latest update: 2008-OCT-15
Author: B.A. Robinson

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