Legal aspects of abortion
The "Born-alive infants protection act"
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.
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
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
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
- 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
- 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.
textbooks say that the heartbeat begins [in a human embryo] at 18 to 22 days
after fertilization." 1 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:
Judiciary Committee justified the need for the act on the basis of
recent "changes in the legal and cultural landscape." These
- 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
- 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
- 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
The House Judiciary Committee also heard of two other similar instances, both in 1998 -- one
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
- "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
- "...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."
- "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/
- "Bill Would Extend Protection To Babies Born Alive,"
Maranatha Christian Journal, 2000-SEP-30, at: http://www.mcjonline.com/news/00b/20000928e.htm
- The text of house bill H.R.
4292 is available at <http://thomas.loc.gov/>
- "Committee Report - House Rpt. 106-835 - BORN-ALIVE INFANTS PROTECTION ACT OF 2000,"
The report is online at http://thomas.loc.gov/
- P. Singer, "Practical Ethics," Cambridge University
Press, (1993). Read
reviews or order this book safely from Amazon.com online book store
- "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
- "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.
- "Born-alive infants protection act," National Right to Life Committee (NRLC),
- "H.R. 2175 - Born-Alive Infants Protection
Act of 2002," 20020MAR-12, at:
- "Senate Passes Born-Alive Infants Protection Act,"
National Right to Life, at:
- "President Bush Signs Born Alive Infants
Protection Act in Pittsburgh Ceremony Attended by NRLC Officials,"
National Right to Life, 2002-AUG-5, at:
Copyright © 2000 to 2008 by Ontario Consultants on Religious
Originally written: 2000-SEP-30
Latest update: 2008-OCT-15
Author: B.A. Robinson