[House Report 106-835]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-835

======================================================================



 
               BORN-ALIVE INFANTS PROTECTION ACT OF 2000

                                _______
                                

 September 11, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 4292]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4292) to protect infants who are born alive, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           2
Background and Need for the Legislation....................           3
Hearings...................................................          14
Committee Consideration....................................          14
Vote of the Committee......................................          14
Committee Oversight Findings...............................          15
Committee on Government Reform Findings....................          15
New Budget Authority and Tax Expenditures..................          15
Congressional Budget Office Cost Estimate..................          16
Constitutional Authority Statement.........................          17
Section-by-Section Analysis and Discussion.................          17
Changes in Existing Law Made by the Bill, as Reported......          17
Additional Views...........................................          19
Dissenting Views...........................................          21

                          Purpose and Summary

    It has long been an accepted legal principle that infants 
who are born alive, at any stage of development, are persons 
who are entitled to the protections of the law. But recent 
changes in the legal and cultural landscape have brought this 
well-settled principle into question.
    In Stenberg v. Carhart,\1\ for example, the United States 
Supreme Court struck down a Nebraska law banning partial-birth 
abortion, a procedure in which an abortionist delivers an 
unborn child's body until only the head remains inside of the 
womb, punctures the back of the child's skull with scissors, 
and sucks the child's brains out before completing the 
delivery. What was described in Roe v. Wade as a right to abort 
``unborn children'' has thus been extended by the Court to 
include the violent destruction of partially born children just 
inches from complete birth.
---------------------------------------------------------------------------
    \1\ 120 S. Ct. 2597 (2000).
---------------------------------------------------------------------------
    The Carhart Court considered the location of an infant's 
body at the moment of death during a partial-birth abortion--
delivered partly outside the body of the mother--to be of no 
legal significance in ruling on the constitutionality of the 
Nebraska law. Instead, implicit in the Carhart decision was the 
pernicious notion that a partially born infant's entitlement to 
the protections of the law is dependent upon whether or not the 
partially born child's mother wants the child.
    Following Stenberg v. Carhart, on July 26, 2000, the United 
States Court of Appeals for the Third Circuit made that point 
explicit in Planned Parenthood of Central New Jersey v. 
Farmer,\2\ in the course of striking down New Jersey's partial-
birth abortion ban. According to the Third Circuit, under Roe 
and Carhart, it is ``nonsensical'' and ``based on semantic 
machinations'' and ``irrational line-drawing'' for a 
legislature to conclude that an infant's location in relation 
to his or her mother's body has any relevance in determining 
whether that infant may be killed. Instead, the Farmer Court 
repudiated New Jersey's classification of the prohibited 
procedure as being a ``partial birth,'' and concluded that a 
child's status under the law, regardless of the child's 
location, is dependent upon whether the mother intends to abort 
the child or to give birth. The Farmer Court stated that, in 
contrast to an infant whose mother intends to give birth, an 
infant who is killed during a partial-birth abortion is not 
entitled to the protections of the law because ``[a] woman 
seeking an abortion is plainly not seeking to give birth.'' \3\
---------------------------------------------------------------------------
    \2\ 220 F.3d 127 (3rd Cir. 2000).
    \3\ Id. at 143.
---------------------------------------------------------------------------
    The logical implications of Carhart and Farmer are both 
obvious and disturbing. Under the logic of these decisions, 
once a child is marked for abortion, it is wholly irrelevant 
whether that child emerges from the womb as a live baby. That 
child may still be treated as a non-entity, and would have not 
the slightest rights under the law--no right to receive medical 
care, to be sustained in life, or to receive any care at all. 
And if a child who survives an abortion and is born alive would 
have no claim to the protections of the law, there would, then, 
be no basis upon which the government may prohibit an 
abortionist from completely delivering an infant before killing 
the infant or leaving the infant to die. The ``right to 
abortion,'' under this logic, means nothing less than the right 
to a dead baby, no matter where the killing takes place.
    Credible public testimony received by the Subcommittee on 
the Constitution of the Committee on the Judiciary indicates 
that this is, in fact, already occurring. According to 
eyewitness accounts, ``induced-labor'' or ``live-birth'' 
abortions are indeed being performed, resulting in live-born 
premature infants who are simply allowed to die, sometimes 
without the provision of even basic comfort care such as warmth 
and nutrition.
    H.R. 4292, the Born-Alive Infants Protection Act of 2000, 
was designed to repudiate the pernicious and destructive ideas 
that have brought the born-alive rule into question, and to 
firmly establish that, for purposes of Federal law, an infant 
who is completely expelled or extracted from his or her mother 
and who is alive is, indeed, a person under the law--regardless 
of whether or not the child's development is believed to be, or 
is in fact, sufficient to permit long-term survival, and 
regardless of whether the baby survived an abortion. H.R. 4292 
accomplishes this by providing that, for purposes of Federal 
law, ``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.''

                Background and Need for the Legislation

            I. Erosion of Legal Rights of Born-Alive Infants

    It has long been accepted as a legal principle that infants 
who are born alive are persons who are entitled to the 
protections of the law, and that a live birth occurs whenever 
an infant, at any stage of development, is expelled from the 
mother's body and displays any of several specific signs of 
life--breathing, a heartbeat, or definite movements of 
voluntary muscles. Many States have statutes that, with some 
variations, explicitly enshrine this principle as a matter of 
State law, and Federal courts have recognized the principle in 
interpreting Federal criminal laws. Recent changes in the legal 
and cultural landscape appear, however, to have brought this 
well-settled principle into question.
A. The Supreme Court's Recent Partial-Birth Abortion Decision Erodes 
        the Born-Alive Principle and Creates Confusion Regarding 
        Infanticide and the Legal Status of Abortion Survivors
    On June 28, 2000, in Stenberg v. Carhart,\4\ the United 
States Supreme Court struck down a Nebraska law banning 
partial-birth abortion, a procedure in which an abortionist 
dilates a pregnant woman's cervix, delivers the unborn child's 
body until only the head remains inside of the mother, 
punctures the back of the child's skull with scissors, and 
sucks the child's brains out before completing the delivery. It 
is a matter of public record that this grisly abortion 
procedure is extremely painful to the child, is never medically 
necessary to preserve the life or health of the mother, and 
indeed is dangerous to women who undergo it. In the words of 
the American Medical Association, partial-birth abortion is 
``not medically indicated'' in any situation and is ``not good 
medicine.'' \5\
---------------------------------------------------------------------------
    \4\ 120 S. Ct. 2597 (2000).
    \5\ Letter from P. John Seward, M.D., Executive Vice President, 
American Medical Association, to U.S. Sen. Rick Santorum (May 19, 1997) 
(on file with the Subcomm. on the Constitution of the House Comm. on 
the Judiciary).
---------------------------------------------------------------------------
    Notwithstanding the compelling record against partial-birth 
abortion, the Carhart Court held that the abortion right 
created in Roe v. Wade encompasses the right to partial-birth 
abortion. That is, what was described in Roe v. Wade as a right 
to abort ``unborn children'' has now been extended by the Court 
to include the brutal killing of partially-born children just 
inches from birth. The Carhart Court based its conclusion on 
claims by abortionists that partially delivering an infant 
before killing it is safer for the mother because it requires 
less ``instrumentation'' in the birth canal and reduces the 
risk of complications from ``retained fetal body parts.'' \6\ 
As discussed below, these same claims would support an 
abortionist's argument that fully delivering an infant before 
killing it is safer for the mother and is, therefore, 
constitutionally protected.
---------------------------------------------------------------------------
    \6\ See Carhart, 120 S. Ct. at 2608-10.
---------------------------------------------------------------------------
    The Carhart Court thus thwarted Nebraska's efforts (and the 
efforts of numerous other States) to, in the words of Justice 
Thomas in dissent, ``prohibit[] a procedure that approaches 
infanticide, and thereby dehumanizes the fetus and trivializes 
human life.'' \7\ The result of the Court's decision, as 
Justice Scalia noted in dissent, ``is to give live-birth 
abortion free rein,'' and to endorse the absurd notion that 
``the Constitution of the United States, designed, among other 
things, `to establish Justice, insure domestic Tranquility, . . 
. and secure the Blessings of Liberty to ourselves and our 
Posterity,' prohibits the States from simply banning this 
visibly brutal means of eliminating our half-born posterity.'' 
\8\
---------------------------------------------------------------------------
    \7\ Carhart, 120 S. Ct. at 2649 (Thomas, J., dissenting). Justice 
Thomas noted that ``[t]he AMA has recognized that this procedure is 
`ethically different from other destructive abortion techniques because 
the fetus, normally twenty weeks or longer in gestation, is killed 
outside the womb. The ``partial birth'' gives the fetus an autonomy 
which separates it from the right of the woman to choose treatments for 
her own body.' '' Id. (quoting AMA Board of Trustees Factsheet on H.R. 
1122 (June 1997), in App. to Brief for Association of American 
Physicians and Surgeons et al. as Amici Curiae 1).
    \8\ Id. at 2621 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    The Carhart Court considered the location of an infant's 
body at the moment of death during a partial-birth abortion--
delivered partly outside the body of the mother--to be of no 
legal significance in ruling on the constitutionality of the 
Nebraska law. (Indeed, two members of the majority, Justices 
Stevens and Ginsburg, went so far as to say that it was 
``irrational'' for the Nebraska legislature to take the 
location of the infant at the point of death into account.\9\) 
Implicit in the Carhart decision was the pernicious notion that 
a partially born infant's entitlement to the protections of the 
law is dependent upon whether or not the partially born child's 
mother wants him or her.
---------------------------------------------------------------------------
    \9\ See id. at 2617 (Stevens, J., concurring) (stating that ``the 
notion that [partial-birth abortion] is more akin to infanticide than 
[any other abortion procedure] . . . is simply irrational'').
---------------------------------------------------------------------------
    Following Stenberg v. Carhart, on July 26, 2000, the United 
States Court of Appeals for the Third Circuit made that point 
explicit in Planned Parenthood of Central New Jersey v. 
Farmer,\10\ in the course of striking down New Jersey's 
partial-birth abortion ban. According to the Third Circuit, 
under Roe and Carhart, it is ``nonsensical'' and ``based on 
semantic machinations'' and ``irrational line-drawing'' for a 
legislature to conclude that an infant's location in relation 
to his or her mother's body has any relevance in determining 
whether that infant may be killed.\11\
---------------------------------------------------------------------------
    \10\ 220 F.3d 127 (3rd Cir. 2000).
    \11\ See id. at 143-44.
---------------------------------------------------------------------------
    Instead, the Farmer Court repudiated New Jersey's 
classification of the prohibited procedure as being a ``partial 
birth,'' and concluded that a child's status under the law, 
regardless of his or her location, is dependent upon whether 
the mother intends to abort the child or to give birth. The 
Farmer Court stated that, in contrast to an infant whose mother 
intends to give birth, an infant who is killed during a 
partial-birth abortion is not entitled to the protections of 
the law because ``[a] woman seeking an abortion is plainly not 
seeking to give birth.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 143.
---------------------------------------------------------------------------
    The logical implications of Carhart and Farmer are both 
obvious and disturbing. If the right to abortion entails the 
right to kill without regard to whether the child remains in 
the mother's womb, and a child's entitlement to the protections 
of the law depends upon whether or not the child's mother 
intends to abort the child or give birth, it follows that 
infants who are marked for abortion but somehow survive and are 
born alive have no legal rights under the law--no right to 
receive medical care, to be sustained in life, or receive any 
care at all.
    Indeed, that is precisely where the abortion right has 
taken the law in South Africa. Under guidelines promulgated by 
the South African Department of Health, babies who survive 
abortions are to be left to die even if they are gasping for 
breath and struggling to survive.\13\ The guidelines state that 
``if an infant is born who gasps for breath, it is advised that 
the foetus does not receive any resuscitation measures.'' \14\ 
Many doctors and nurses in South Africa have expressed outrage 
at the guidelines. One female physician in KwaZulu-Natal said 
that ``[i]t is inhuman and against all my principles. . . . No 
way will I stand by and do nothing to resuscitate a child. It 
is impossible and we should not be put in such a position.'' 
\15\
---------------------------------------------------------------------------
    \13\ See Angella Johnson, Abortion babies `should be left to die', 
Africa News Service, Mar. 3, 1997.
    \14\ Id.
    \15\ Id.
---------------------------------------------------------------------------
    A debate over this same issue is also currently taking 
place in Australia. Some medical experts contend that babies 
who survive abortions have the right to medical attention from 
a physician, just as the elderly and terminally ill do.\16\ 
Other experts contend that abortion survivors should not 
receive medical attention.\17\ For example, the chairman of 
Family Planning Australia, Gab Kovacs, contends that babies who 
survive abortions ``should be left to succumb in peace, on a 
cot in a back room, for example.'' \18\
---------------------------------------------------------------------------
    \16\ See Victoria Button, Experts Divided on Foetus Protocols, The 
Age, Apr. 12, 2000.
    \17\ See id.
    \18\ Id.
---------------------------------------------------------------------------
    Moreover, if, under Carhart and Farmer, a child who 
survives an abortion and is born alive is not entitled to the 
protections of the law simply because the child's mother did 
not intend to give birth, then there is no basis--other than 
what the Third Circuit in Farmer dismissed as ``semantic 
machinations'' and ``irrational line-drawing'' based on the 
infant's ``born'' or ``unborn'' status--upon which the 
government may prohibit an abortionist from completely 
delivering an infant before killing the infant or leaving the 
infant to die. Under the logic of these decisions, if a woman 
decides to abort her unborn child, and the abortionist decides 
that the health risks to the woman are reduced by his not 
stabbing the child in the back of the skull in order to kill 
the child before completing delivery--the risk reduction 
occurring because surgical instruments would not be inserted 
into the birth canal--the abortionist may simply completely 
deliver the child before killing the child. The right to 
abortion created in Roe thus appears to encompass, at least 
under the logic of Carhart and Farmer, the right to 
infanticide.
B. The ``Viability'' Doctrine in the Supreme Court's Abortion 
        Jurisprudence Has Eroded the Born-Alive Principle and Created 
        Confusion Regarding the Legal Status of Premature Infants Who 
        Survive Abortions
    The ``viability'' doctrine in the Supreme Court's decisions 
in Planned Parenthood v. Casey \19\ and Carhart has also 
created confusion regarding the legal status of premature 
infants who survive abortions but have little or no chance of 
sustained survival. In Casey the Court reaffirmed the right of 
a woman to abort her unborn child, and adhered to the notion 
that the government's interest in protecting the unborn child 
is related to ``viability,'' or the child's capacity for 
sustained survival independent of the mother, with or without 
medical assistance. The Carhart Court also relied upon the 
viability doctrine in striking down Nebraska's partial-birth 
abortion ban.
---------------------------------------------------------------------------
    \19\ 505 U.S. 833 (1992).
---------------------------------------------------------------------------
    The Court's reliance upon the viability concept in the 
abortion context appears to have caused some to wrongly 
conclude that premature infants who survive abortions are not 
legally-protected persons if they have little or no chance of 
sustained survival. Indeed, that appears to be the position of 
opponents of H.R. 4292. On July 20, 2000, for example, the 
National Abortion and Reproductive Rights Action League 
(``NARAL'') issued a press release criticizing H.R. 4292 
because, in NARAL's view, extending legal personhood to 
premature infants who are born alive after surviving abortions 
constitutes an ``assault'' on Roe v. Wade.\20\ According to 
NARAL, by seeking to provide legal rights to born-alive infants 
``at any stage of development,'' including those not yet 
considered to have achieved ``viability,'' the proponents of 
H.R. 4292 are ``directly contradicting one of Roe's basic 
tenets.'' \21\ It will come as a surprise to many that one of 
Roe's ``basic tenets'' is that a premature baby who is marked 
for abortion, but somehow survives and is born alive, is not a 
person that the law may protect.
---------------------------------------------------------------------------
    \20\ NARAL Statement: Roe v. Wade Faces Renewed Assault in the 
House, Anti-Choice Lawmakers Hold Hearing on So-Called ``Born-Alive 
Infants Protection Act, July 20, 2000 (on file with the Subcomm. on the 
Constitution of the House Comm. on the Judiciary).
    \21\ Id.
---------------------------------------------------------------------------
    Rep. Stephanie Tubbs Jones took a similar position in her 
testimony on H.R. 4292 before the Subcommittee on the 
Constitution. According to Rep. Jones, 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.'' \22\ H.R. 4292 unduly restricts a 
woman's right to choose, Rep. Jones contends, by extending 
protection to fully born, premature infants in ``direct 
contravention of Roe v. Wade and subsequent Supreme Court 
rulings.'' \23\
---------------------------------------------------------------------------
    \22\ Born-Alive Infants Protection Act: Hearings on H.R. 4292 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 20, 2000 (statement of Rep. Stephanie 
Tubbs Jones).
    \23\ Id.
---------------------------------------------------------------------------
    The question of whether a live birth has occurred does not, 
however, depend upon whether an infant is sufficiently 
developed for sustained survival. The definition of ``born 
alive'' contained in H.R. 4292 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.\24\ The Illinois statute provides a model of this 
definition:
---------------------------------------------------------------------------
    \24\ See Alaska Stat. Sec. 18.50.950; Ariz. Rev. Stat. Ann. 
Sec. 36-301; 17 Ca. Adc. Sec. 915; Fla. Stat. Ann. Sec. 382.002; Ga. 
Code Ann. Sec. 31-10-1; Haw. Rev. Stat. Sec. 338-1; Idaho Code Sec. 39-
241; Ill. Ann. Stat. Ch. 420, para. 535; Kan. Stat. Ann. Sec. 65-2401; 
Ky. Rev. Stat. Ann. Sec. 213.011; Me. Rev. Stat. Ann. tit. 22, 
Sec. 1595; Md. Code Ann., Health-Gen. Sec. 4-201; Mo. Rev. Stat. 
Sec. 193.015; N.J. Stat. Ann. Sec. 26:8-1; N.M. Stat. Ann. Sec. 24-14-
2; N.Y. Pub. Health Law Sec. 4130; N.D. Cent. Code Sec. 23-02.1-01; 
Ohio Rev. Code Ann. Sec. 3705.01; Okla. Stat. Ann. tit. 63, Sec. 1-301; 
Or. Rev. Stat. Sec. 432.005; R. I. Gen. Laws Sec. 23-3-1; S.D. Codified 
Laws Ann. Sec. 34-25-1.1; Tenn. Code Ann. Sec. 68-3-102; Va. Code Ann. 
Sec. 32.1-249; W. Va. Code Sec. 16-5-1; Wyo. Stat. Sec. 35-1-401; D.C. 
Code Sec. 6-201(9); Minn. R. 4600.0100(Subp. 4); N.C. Admin. Code tit. 
15A, r. 19H.0102(5); S.C. Admin. Code 61-19(1)(f); 25 Tex. Admin. Code 
Sec. 181.1(16).

        Live birth means the complete expulsion or extraction 
        from its mother of a product of human conception, 
        irrespective of the duration of pregnancy, which after 
        such separation breathes or shows any other evidence of 
        life such as beating of the heart, pulsation of the 
        umbilical cord, or definite movement of voluntary 
        muscles, whether or not the umbilical cord has been cut 
        or the placenta is attached.\25\
---------------------------------------------------------------------------
    \25\ Ill. Ann. Stat. ch. 420, para. 535 (emphasis added).

Pennsylvania's statute includes a similar but somewhat broader 
definition: ``Live birth means the expulsion or extraction from 
its mother of a product of conception, irrespective of the 
period of gestation, which shows any evidence of life at any 
moment after expulsion or extraction.'' \26\
---------------------------------------------------------------------------
    \26\ 35 Pa. Const. Stat. Sec. 450.105.
---------------------------------------------------------------------------
    The reason these statutes do not define a live birth as 
dependent upon the infant's gestational age is fairly obvious. 
Many infants are born alive at 20 to 22 weeks and survive for 
hours, even though their lung capacity typically does not 
permit sustained survival. Under the prevailing standards of 
medical care, such infants are understood to be born-alive 
persons and are treated as such, even though they may only live 
for a short time. They are, for example, treated humanely, 
given comfort care, and issued a death certificate. And an 
individual could not escape criminal prosecution for entering a 
neonatal intensive care unit and murdering one of these infants 
simply because the infant will only survive for a short time.
    Many infants are also born-alive at 23 weeks, and currently 
have a 39% chance of sustained survival, and at 24 weeks with a 
greater than 50% chance of sustained survival, with the odds 
improving all of the time. Determining whether any given one of 
these children should be treated as a born-alive person, on the 
basis of his or her ultimate viability, could only be 
accomplished retrospectively, by looking at whether the child 
actually survived. The law has avoided this conundrum by 
defining a live birth without regard to the gestational age of 
the child.
C. Princeton University Bioethicist Peter Singer Advocates Legal 
        Killing of Disabled or Unhealthy Newborn Infants
    The principle that born-alive infants are entitled to the 
protection of the law is also being questioned at one of 
America's most prestigious universities. In his book Practical 
Ethics, Princeton University Bioethicist Peter Singer argues 
that parents should have the option to kill disabled or 
unhealthy newborn babies for a certain period after birth. 
According to Professor Singer, ``a period of 28 days after 
birth might be allowed before an infant is accepted as having 
the same right to live as others.''
    This contention is based on Professor Singer's view that 
the life of a newborn baby is ``of no greater value than the 
life of a nonhuman animal at a similar level of rationality, 
self-consciousness, awareness, capacity to feel, etc.'' 
According to Professor Singer, ``killing a disabled infant is 
not morally equivalent to killing a person. Very often it is 
not wrong at all.''

 II. Evidence of the Moral and Legal Confusion Regarding the Status of 
                           Live-Born Infants

A. ``Live-Birth'' Abortions
    The legal and moral confusion that flows from these 
pernicious ideas is well illustrated by disturbing events that 
are reported to have occurred at Christ Hospital in Oak Lawn, 
Illinois. Two nurses from the hospital's delivery ward, Jill 
Stanek and Allison Baker (who is no longer employed by the 
hospital), testified before the Subcommittee on the 
Constitution that physicians at Christ Hospital have performed 
numerous ``induced labor'' or ``live-birth'' abortions, a 
procedure in which physicians use drugs to induce premature 
labor and deliver unborn children, many of whom are still 
alive, and then simply allow those who are born alive to 
die.\27\
---------------------------------------------------------------------------
    \27\ See Born-Alive Infants Protection Act: Hearings on H.R. 4292 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 20, 2000 (statement of Jill L. Stanek, 
R.N.); Born-Alive Infants Protection Act: Hearings on H.R. 4292 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Cong., July 20, 2000 (statement of Allison Baker, R.N., B.S.N.).
---------------------------------------------------------------------------
    According to medical experts, this procedure is 
appropriately used only in situations in which an unborn child 
has a fatal deformity, such as anencephaly or lack of a brain, 
and infants with such conditions who are born alive are given 
comfort care (including warmth and nutrition) until they die, 
which, because of the fatal deformity, is typically within a 
day or two of birth. According to the testimony of Mrs. Stanek 
and Mrs. Baker, however, physicians at Christ Hospital have 
used the procedure to abort healthy infants and infants with 
non-fatal deformities such as spina bifida and Down 
Syndrome.\28\ Many of these babies have lived for hours after 
birth, with no efforts made to determine if any of them could 
have survived with appropriate medical assistance.\29\ The 
nurses also witnessed hospital staff taking many of these live-
born babies into a ``soiled utility room'' where the babies 
would remain until death.\30\ Comfort care, the nurses say, was 
not provided consistently.\31\
---------------------------------------------------------------------------
    \28\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
    \29\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
    \30\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
    \31\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
---------------------------------------------------------------------------
    Ms. Stanek testified regarding numerous live-birth 
abortions that she alleges have occurred at Christ Hospital. 
The first she described as follows:

        One night, a nursing co-worker was taking an aborted 
        Down's Syndrome baby who was born alive to our Soiled 
        Utility Room because his parents did not want to hold 
        him, and she did not have time to hold him. I could not 
        bear the thought of this suffering child dying alone in 
        a Soiled Utility Room, so I cradled and rocked him for 
        the 45 minutes that he lived. He was 21 to 22 weeks 
        old, weighed about \1/2\ pound, and was about 10 inches 
        long. He was too weak to move very much, expending any 
        energy he had trying to breathe. Toward the end he was 
        so quiet that I couldn't tell if he was still alive 
        unless I held him up to the light to see if his heart 
        was still beating through his chest wall. After he was 
        pronounced dead, we folded his little arms across his 
        chest, wrapped him in a tiny shroud, and carried him to 
        the hospital morgue where all of our dead patients are 
        taken.\32\
---------------------------------------------------------------------------
    \32\ Statement of Jill L. Stanek, R.N., supra.

    Mrs. Stanek testified about another aborted baby who was 
thought to have had spina bifida, but was delivered with an 
intact spine.\33\ On another occasion, an aborted baby ``was 
left to die on the counter of the Soiled Utility Room wrapped 
in a disposable towel. This baby was accidentally thrown in the 
garbage, and when they later were going through the trash to 
find the baby, the baby fell out of the towel and on to the 
floor.'' \34\ Mrs. Stanek further testified regarding a live-
birth abortion that was performed on a healthy infant at more 
than 23 weeks gestation, a stage of development at which 
premature infants have an almost 40% chance of survival.\35\ 
According to Mrs. Stanek,
---------------------------------------------------------------------------
    \33\ Id.
    \34\ Id.
    \35\ Id.

        [t]he baby was born alive. If the mother had wanted 
        everything done for her baby, there would have been a 
        neonatologist, pediatric resident, neonatal nurse, and 
        respiratory therapist present for the delivery, and the 
        baby would have been taken to our Neonatal Intensive 
        Care Unit for specialized care. Instead, the only 
        personnel present for this delivery were an obstetrical 
        resident and my co-worker. After delivery the baby, who 
        showed early signs of thriving, was merely wrapped in a 
        blanket and kept in the Labor & Delivery Department 
        until she died 2\1/2\ hours later.\36\
---------------------------------------------------------------------------
    \36\ Id.

    Mrs. Baker testified regarding three live-birth abortions 
she witnessed at the hospital. According to Mrs. Baker, she was 
informed about the live-birth abortions, described by the 
hospital as ``therapeutic abortions,'' when she began working 
in the high risk labor and delivery unit at the hospital in 
August 1998. She described her first encounter with this 
---------------------------------------------------------------------------
procedure as follows:

        The first occurred on a day shift. I happened to walk 
        into a ``soiled utility room'' and saw, lying on the 
        metal counter, a fetus, naked, exposed and breathing, 
        moving its arms and legs. The fetus was visibly alive, 
        and was gasping for breath. I left to find the nurse 
        who was caring for the patient and this fetus. When I 
        asked her about the fetus, she said that she was so 
        busy with the mother that she didn't have time to wrap 
        and place the fetus in a warmer, and she asked if I 
        would do that for her. Later I found out that the fetus 
        was 22 weeks old, and had undergone a therapeutic 
        abortion because it had been diagnosed with Down's 
        Syndrome. I did wrap the fetus and place him in a 
        warmer and for 2\1/2\ hours he maintained a heartbeat, 
        and then finally expired.\37\
---------------------------------------------------------------------------
    \37\ Statement of Allison Baker, R.N., B.S.N., supra.

    The second induced labor abortion Mrs. Baker witnessed 
involved a 20 week-old fetus with spina bifida who was born 
---------------------------------------------------------------------------
alive. According to Mrs. Baker,

        [d]uring the time the fetus was alive, the patient kept 
        asking me when the fetus would die. For an hour and 45 
        minutes the fetus maintained a heartbeat. The parents 
        were frustrated, and obviously not prepared for this 
        long period of time. Since I was the nurse of both the 
        mother and the fetus, I held the fetus in my arms until 
        it finally expired.\38\
---------------------------------------------------------------------------
    \38\ Id.

    The third incident witnessed by Mrs. Baker involved a 16 
week-old fetus with Down's Syndrome. ``Again,'' Mrs. Baker 
testified, ``I walked into the soiled utility room and the 
fetus was fully exposed, lying on the baby scale.'' \39\ Mrs. 
Baker then found the nurse who was caring for the mother and 
the baby and offered her assistance. ``When I went back into 
the soiled utility room,'' Mrs. Baker said, ``the fetus was 
moving its arms and legs. I then listened for a heartbeat, and 
found that the fetus was still alive. I wrapped the fetus and 
in 45 minutes the fetus finally expired.'' \40\
---------------------------------------------------------------------------
    \39\ Id.
    \40\ Id.
---------------------------------------------------------------------------
    When allegations such as these were first made against 
Christ Hospital, the hospital claimed that this procedure was 
only used ``when doctors determine the fetus has serious 
problems, such as lack of a brain, that would prevent long-term 
survival.'' \41\ Later, however, the hospital changed its 
position, announcing that although it had performed live-birth 
abortions on infants with non-fatal birth defects, it was 
changing its policy and would henceforth use the procedure to 
abort only fatally-deformed infants.\42\
---------------------------------------------------------------------------
    \41\ Jeremy Manier, Rare Abortions by Induced Labor Probed by 
State, Chicago Tribune, Sept. 29, 1999.
    \42\ See Jeremy Manier, Christ Hospital, Network to Allow Fewer 
Abortions, Chicago Tribune, Oct. 14, 1999.
---------------------------------------------------------------------------
B. Confusion Regarding the Status of Abortion Survivors
    The confusion regarding the status of abortion survivors is 
reflected in events that happened last year in Cincinnati, 
Ohio. A young woman learned she was pregnant and sought 
assistance at the clinic of the abortionist Dr. Martin Haskell, 
inventor of one variation of the partial-birth abortion 
procedure.\43\ Dr. Haskell performed the first step of the 
partial-birth abortion procedure--dilating the woman's cervix--
and she was to return the next day. The next morning the woman 
began experiencing severe abdominal pains and reported to the 
emergency room of Bethesda North Medical Center in Cincinnati. 
While she was being examined, the young woman gave birth to a 
baby girl.\44\ The attending physician placed the baby in a 
specimen dish--like any other substance that is removed from 
the body--to be taken to the lab by a medical technician. When 
the technician, Shelly Lowe, saw the baby girl in the dish she 
was stunned when she saw the girl gasping for air. ``I don't 
think I can do that,'' Ms. Lowe reportedly said. ``This baby is 
alive.'' \45\
---------------------------------------------------------------------------
    \43\ See Finger-pointing follows Baby Hope, Cincinnati Post, Apr. 
22, 1999, at 15A.
    \44\ See id.; see also Mona Charen, Baby Hope, Washington Times, 
May 17, 1999.
    \45\ Mona Charen, Baby Hope, Part 2, Washington Times, May 24, 
1999.
---------------------------------------------------------------------------
    After doctors concluded that the baby was too premature to 
survive (by some estimates she was born at 22 weeks, although 
some members of the hospital staff believed she was older), Ms. 
Lowe held the baby, whom she named ``Baby Hope,'' wrapping her 
in a blanket and singing to her as she stroked her cheeks, 
until the child died. Ms. Lowe said: ``I wanted her to feel 
that she was wanted. . . . She was a perfectly formed newborn, 
entering the world too soon through no choice of her own.'' 
\46\ Surprisingly, Baby Hope lived for 3 hours, without the 
benefit of an incubator or other intensive care, and breathing 
room air, but her condition was not reassessed by the 
physicians.\47\ And although it is impossible to determine at 
this point whether a reassessment would have made any 
difference in Baby Hope's ultimate survival, the lack of any 
such reassessment, coupled with the attending physician's 
initial placement of then-breathing Baby Hope in a specimen 
dish, at least raises serious questions as to whether a 
similarly-situated infant who was wanted by her mother would 
have received the same treatment.
---------------------------------------------------------------------------
    \46\ Mona Charen, Baby Hope, Washington Times, May 17, 1999.
    \47\ See id.
---------------------------------------------------------------------------
    Confusion regarding the legal status of abortion survivors 
is not a problem only in the United States. Evidence of this 
confusion can be further illustrated by events that occurred in 
Professor Peter Singer's native country of Australia. On April 
10, 2000, in Sydney, Australia, a Coroners Court heard 
testimony regarding a baby who survived an abortion in 1998 and 
lived for 80 minutes while hospital staff waited for the baby 
to die.\48\ When the midwife nurse called the abortion doctor 
(who was not present) to inform him that the baby had survived, 
he responded, ``So?'' \49\ The nurse then did what she could to 
make the baby comfortable, covering her with a blanket to keep 
her warm until her breathing and heartbeat slowed and she 
died.\50\
---------------------------------------------------------------------------
    \48\ See Australian Baby Lives 80 Minutes After Abortion, Sydney 
Morning Herald, Apr. 10, 2000.
    \49\ Id.
    \50\ See id.
---------------------------------------------------------------------------
    The coroner who investigated this incident condemned the 
actions of the abortion doctor, stating that `` `[t]he [baby] 
having been born alive deserved all the dignity, respect and 
value that our society places on human life. . . . The fact 
that her birth was unexpected and not the desired outcome of 
the [abortion] should not result in her and babies like her 
being perceived as anything less than a complete human being.' 
'' \51\ Noting that the old, infirm, sick and terminally ill 
are all entitled to proper medical and palliative care and 
attention, the coroner stated that ``newly-born unwanted and 
premature babies should have the same rights. The fact that 
[the baby's] death was inevitable should not affect her 
entitlement to such care and attention.'' \52\
---------------------------------------------------------------------------
    \51\ Id.
    \52\ Id.
---------------------------------------------------------------------------
    A similar incident occurred in Germany in 1998.\53\ In that 
case, an infant survived an abortion attempt at 25 weeks 
gestation. The doctors who attempted to abort the baby left it 
wrapped in a blanket for 10 hours ``under observation'' but 
without any medical assistance. The doctors then consulted with 
the parents and decided to provide the baby medical assistance. 
The infant survived, but was severely damaged and has had 
several operations. The German government brought charges 
against the physicians.
---------------------------------------------------------------------------
    \53\ See Andrew Gimson, Outrage as baby survives abortion, Daily 
Telegraph, London, Jan. 8, 1998.
---------------------------------------------------------------------------

               III. The Born-Alive Infants Protection Act

    H.R. 4292, the Born-Alive Infants Protection Act of 2000, 
was designed to repudiate the pernicious and destructive ideas 
that have brought the born-alive rule into question, and to 
firmly establish that, for purposes of Federal law, an infant 
who is completely expelled or extracted from the mother and who 
is alive is, indeed, a person under the law--regardless of 
whether or not the child's development is believed to be, or is 
in fact, sufficient to permit long-term survival, and 
regardless of whether the baby survived an abortion. H.R. 4292 
accomplishes this by providing that, for purposes of Federal 
law, ``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 term ``born alive'' is defined as

        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 the 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.

As stated above, this definition of ``born alive'' was derived 
from a model definition of ``live birth'' that has been 
adopted, with minor variations, in 30 States and the District 
of Columbia.\54\
---------------------------------------------------------------------------
    \54\ See discussion, supra, p. 7.
---------------------------------------------------------------------------
    H.R. 4292 draws a bright line between the right to 
abortion--which the Supreme Court has now said includes the 
right to kill partially-born children--and infanticide, or the 
killing or criminal neglect of completely born children. The 
bill reaffirms that a born-alive infant's legal status under 
Federal law does not depend upon the infant's gestational age 
or whether the infant's birth occurred as a result of natural 
or induced labor, cesarean section, or induced abortion. If, 
for example, an infant is born alive at a Federal hospital as a 
result of a failed abortion attempt, this bill makes clear that 
the attending physicians and other medical professionals should 
treat the infant just as they would treat a similarly-situated 
infant who was born as a result of natural labor.
    H.R. 4292 thus affirms that, as Professor Hadley Arkes of 
Amherst College testified before the Subcommittee on the 
Constitution, every child who is born alive ``has an intrinsic 
dignity, which must in turn be the source of rights of an 
intrinsic dignity, which cannot depend then on the interests or 
convenience of anyone else.'' \55\ The bill makes clear that a 
child's legal status does not depend upon whether anyone 
happens to want the child.
---------------------------------------------------------------------------
    \55\ Born-Alive Infants Protection Act: Hearings on H.R. 4292 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 20, 2000 (statement of Professor Hadley 
Arkes, Amherst College),
---------------------------------------------------------------------------
    The protections afforded newborn infants under H.R. 4292 
for purposes of Federal law are consistent with the statutory 
protections afforded those infants under the laws of the 30 
States and the District of Columbia that define a ``live 
birth'' in virtually identical terms. Like those laws, H.R. 
4292 would not mandate medical treatment where none is 
currently indicated. While there is debate about whether or not 
to aggressively treat premature infants below a certain birth 
weight, this is a dispute about medical efficacy, not regarding 
the legal status of the patient. That is, the standard of 
medical care applicable in a given situation involving a 
premature infant is not determined by asking whether that 
infant is a person. Medical authorities who argue that 
treatment below a given birth weight is futile are not arguing 
that these low-birth weight infants are non-persons, only that 
providing treatment in those circumstances is not warranted 
under the applicable standard of medical care. H.R. 4292 would 
not affect the applicable standard of care, but would only 
insure that all born-alive infants--regardless of their age and 
regardless of the circumstances of their birth--are treated as 
persons for purposes of Federal law.

             IV. Congressional Authority to Enact H.R. 4292

    H.R. 4292 is exclusively a definitional provision, 
identical in structure and function to the immediately 
preceding provision of the United States Code. That provision, 
1 U.S.C. Sec. 7, defines ``marriage'' and ``spouse'' for the 
purpose of construing ``any Act of Congress, or of any ruling, 
regulation, or interpretation of the various administrative 
bureaus of the United States.'' H.R. 4292 defines the words 
``person,'' ``human being,'' ``child,'' and ``individual'' for 
identical purposes.
    H.R. 4292 does not, therefore, articulate any new 
substantive rule of law. Thus, as Professor Gerard V. Bradley 
of Notre Dame Law School testified before the Subcommittee on 
the Constitution, H.R. 4292 ``does not call for an as-yet-
unarticulated constitutional basis for lawmaking.'' \56\ If the 
Federal law using the word ``person,'' ``human being,'' 
``child,'' or ``individual,'' rests upon a proper enumerated 
basis, then no additional question about enumerated power is 
raised by Congress' clarification of what that term means.\57\ 
For, if Congress has the power to count ``persons,'' to protect 
``persons'' against assault, to grant tax exemptions for all 
dependent ``children,'' or to take some other action with 
regard to ``human beings'' or ``individuals,'' that power 
necessarily implies the authority to provide a definition of 
``persons,'' ``children,'' and ``individuals.'' Congress also 
has the authority to define these terms under the Necessary and 
Proper Clause of Article 1, section 8 of the Constitution.
---------------------------------------------------------------------------
    \56\ See Born-Alive Infants Protection Act: Hearings on H.R. 4292 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 20, 2000 (statement of Professor Gerard V. 
Bradley, Notre Dame Law School).
    \57\ Id.
---------------------------------------------------------------------------

                                Hearings

    The committee's Subcommittee on the Constitution held 1 day 
of hearings on H.R. 4292 on July 20, 2000. Testimony was 
received from several witnesses: Hadley Arkes, Edward Ney 
Professor of Jurisprudence and American Institutions, Amherst 
College; Allison Baker, Charlottesville, Virginia; Jill L. 
Stanek, Mokena, Illinois; Matthew G. Hile, Ph.D., St. Louis, 
Missouri; Gianna Jessen, Franklin, Tennessee; Honorable 
Stephanie Tubbs Jones (D-OH); Kenneth Thomas, Legislative 
Attorney, American Law Division, Congressional Research 
Service, The Library of Congress; Gerard V. Bradley, Professor 
of Law, Notre Dame Law School; F. Sessions Cole, M.D., 
Professor of Pediatrics and Cell Biology and Physiology, 
Washington University School of Medicine, St. Louis, Missouri; 
Watson A. Bowes, Jr., M.D., Professor Emeritus, Department of 
Obstetrics and Gynecology, University of North Carolina at 
Chapel Hill School of Medicine; and Robert P. George, McCormick 
Professor of Jurisprudence, Department of Politics, Princeton 
University.

                        Committee Consideration

    On July, 26, 2000, the committee met in open session and 
ordered favorably reported the bill H.R. 4292, without 
amendment, by a recorded vote of 22 to 1, a quorum being 
present.

                         Vote of the Committee

    Motion to report H.R. 4292, the ``Born-Alive Infants 
Protection Act of 2000.'' By a rollcall vote of 22 yeas to 1 
nay, the motion was agreed to.

                                                      ROLLCALL
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................              X   ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................  ..............  ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................  ..............  ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................              X   ..............  ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................              X   ..............  ..............
Mr. Bachus......................................................              X   ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             22               1   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 4292, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 22, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4292, the Born-
Alive Infants Protection Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lisa Cash 
Driskill, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Democratic Member
H.R. 4292--Born-Alive Infants Protection Act of 2000.
    H.R. 4292 would amend the United States Code by expanding 
the definition of the words ``person, human being, child, and 
individual'' as they are used in any act of the Congress or any 
administrative ruling, regulation, or interpretation. Under the 
bill, such words would be defined to include every infant born 
alive at any stage of development. The bill also would define 
the term ``born alive.''
    The interests of those who are born alive are recognized 
most commonly in the areas of tort law, trust and estate law, 
and criminal law. Because the words ``person, human being, 
child, and individual'' are used frequently throughout the 
United States Code, CBO cannot determine how the new 
definitions could be interpreted in all situations. However, 
CBO assumes that the bill would have no effect on federal tort 
law or trust and estate law. In the area of criminal law, CBO 
expects that the circumstances under which the new definitions 
could be used to bring lawsuits in federal court are very 
limited. Therefore, we estimate that the effect of H.R. 4292 on 
the federal budget would be negligible.
    Anyone prosecuted and convicted under H.R. 4292 could be 
subject to criminal fines. Collections of such fines are 
recorded in the budget as governmental receipts (revenues), 
which are deposited in the Crime Victims Fund and spent in 
subsequent years. Because H.R. 4292 could affect direct 
spending and receipts, pay-as-you-go procedures would apply. 
CBO expects, however, that any additional receipts and direct 
spending would be negligible because it is not likely that the 
federal government would pursue many cases under this bill.
    Because definition changes in this bill would affect such a 
large number of citations in the United States Code, CBO cannot 
determine with certainty whether those changes might impose new 
enforceable duties on state, local, and tribal governments or 
the private sector. CBO has identified no such instances, 
however, and believes that it is unlikely that H.R. 4292 would 
impose new federal mandates as defined by the Unfunded Mandates 
Reform Act.
    The CBO staff contact for this estimate is Lisa Cash 
Driskill, who can be reached at 226-2860. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, section 8, clause 18 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    Section 1. Short Title. This section provides that the 
title of the act is the Born-Alive Infants Protection Act of 
2000.
    Section 2. Definition of Born-Alive Infant. This section 
inserts into Chapter 1 of title 1 of the United States Code a 
new section 8, defining ``person,'' ``human being,'' ``child,'' 
and ``individual'' as including born-alive infants. Section 
8(a) provides that in determining the meaning of any Act of 
Congress, or of any ruling, regulation, or interpretation of 
the various administrative bureaus and agencies of the United 
States, 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.
    Section 8(b) provides that the term ``born-alive,'' with 
respect to any member of the species homo sapiens, means the 
complete expulsion or extraction 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.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                CHAPTER 1 OF TITLE 1, UNITED STATES CODE

                    CHAPTER 1--RULES OF CONSTRUCTION

Sec.
1. Words denoting number, gender, etc.
     * * * * * * *
8. ``Person'', ``human being'', ``child'', and ``individual'' as 
          including born-alive infant.

           *       *       *       *       *       *       *


Sec. 8. ``Person'', ``human being'', ``child'', and ``individual'' as 
                    including born-alive infant

    (a) In determining the meaning of any Act of Congress, or 
of any ruling, regulation, or interpretation of the various 
administrative bureaus and agencies of the United States, 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.
    (b) As used in this section, the term ``born alive'', with 
respect to a member of the species homo sapiens, 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.
                            Additional Views

    While H.R. 4292 was reported favorably out of the Judiciary 
Committee, I wish to make clear that support for this bill 
hinges on a critical assumption: that H.R. 4292 merely restates 
existing law. Because this assumption is based primarily upon 
the assertions of the bill's sponsor rather than on the clear 
language of the bill itself or supporting legal analysis, I 
have expressed three primary concerns with respect to the bill.
    First, the bill was rushed through the committee process, 
without a subcommittee mark-up and without the benefit of a 
thorough assessment of the nature and scope of the bill's 
impact on Federal law. This point is especially troublesome in 
light of the legislation's breadth. H.R. 4292 is not a bill 
narrowly tailored to meet its purported objectives. Indeed, 
H.R. 4292 would change, in every Federal law, rule or 
regulation, the definition of the terms ``person,'' ``human 
being,'' ``child,'' and ``individual'' to include those ``born 
alive'' as defined by the bill. Such terms appear in at least 
15,000 sections of the United States Code and over 57,000 
sections of the Code of Federal Regulations. A comprehensive 
analysis of the bill's impact on Federal law, therefore, would 
require significantly more time than permitted by the 
committee's abbreviated schedule for consideration of the bill. 
In spite of some hurried, preliminary analyses, many 
implications of H.R. 4292 remain unknown. Consequently, it 
seems unwise to proceed so quickly.
    Second, H.R. 4292 defines the term ``born alive'' as the 
``complete expulsion or extraction from its mother of that 
member [of the species homo sapiens], at any stage of 
development, who . . . breathes or has a beating heart, 
pulsation of the umbilical cord, or a definite movement of 
voluntary muscles. . .'' (emphasis added). 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. In other words, is it the intent of the bill's sponsors 
to confer legal rights of personhood on a fetus that is outside 
the uterus, but not completely outside the body? In order to 
eliminate this ambiguity and protect the right to abortion, I 
offered an amendment during full committee mark-up which would 
have clarified that ``born alive'' means the complete 
extraction or expulsion from ``the woman's body.'' A colloquy 
ensued with Representative Charles Canady (R-FL) who argued 
that the amendment was unnecessary because the language of the 
bill was ``crystal clear'' in requiring complete physical 
separation from the mother's body in order to be born alive. 
Satisfied with Mr. Canady's response, the amendment was 
withdrawn. It is my understanding, therefore, as explicitly 
confirmed by Mr. Canady, the sponsor of H.R. 4292, that a fetus 
that has been extracted or expelled from the womb and is still 
completely or partially in the vaginal canal is not a ``born 
alive'' member of the species homo sapiens under this bill.
    Finally, as reflected through testimony and debate at the 
subcommittee hearing on H.R. 4292, 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. The majority has assured the 
minority, both verbally and through written statements, that 
this is not so. H.R. 4292, therefore, should not affect current 
and future standards of medical care. Nor should the bill 
affect the principle that personal, and often agonizing and 
painful, medical decisions regarding care and treatment of 
``born-alive'' infants should be left to parents and 
consultation with their physicians. According to the majority, 
H.R. 4292 will not impose any more stringent obligation, duty, 
or standard of care than is otherwise applicable under Federal 
or State law.

                                   Jerrold Nadler
                            Dissenting Views

    I voted against H.R. 4292, the ``Born Alive Infant 
Protection Act,'' at the July 26, 2000 House Judiciary 
Committee markup because this bill has not been studied in a 
responsible way before being rushed through the Judiciary 
Committee.
    According to Congressional Research Service, H.R. 4292 
would amend some 15,000 provisions of the U.S. Code and 57,000 
provisions of the Code of Federal Regulations.\1\ Both the 
Congressional Research Service (CRS) and the Congressional 
Budget Office (CBO) reviewed the bill. Neither reached a 
definitive conclusion about what the bill would do. The CRS 
concluded:
---------------------------------------------------------------------------
    \1\ Kenneth Thomas and Jon Shimabukuro, ``The Born Alive Infant 
Protection Act of 2000,'' CRS Memorandum, p. 1, fn. 1 (July 18, 2000).

        A definitive statutory analysis of the effect of the 
        proposed act would require a review and evaluation of 
        the use of the terms ``person,'' ``human being,'' 
        ``child,'' and ``individual'' as they appear in all 
        Federal statutes and in agency rulings, regulations, or 
        interpretations. A computer search of these terms 
        reveals that they appear in over 15,000 sections of the 
        United States Code, and in over 57,000 sections of the 
        Code of Federal Regulations. Consequently, an 
        evaluation of the statutory and regulatory impact of 
        the act is beyond the resources of our office.\2\
---------------------------------------------------------------------------
    \2\ Id.

The CBO concluded: ``Because the words `person, human being, 
child, and individual' are used frequently throughout the 
United States Code, CBO cannot determine how the new 
definitions could be interpreted in all situations.'' \3\
---------------------------------------------------------------------------
    \3\ Congressional Budget Office, Cost Estimate: H.R. 4292 (August 
22, 2000).
---------------------------------------------------------------------------
    As I understand the bill's proponents, they intend to 
codify and reaffirm, not change, the substantive law. The 
language they have chosen to achieve this goal, however, 
carries an enormous risk of unintended consequences. As stated 
by the CBO: ``[b]ecause definition changes in this bill would 
affect such a large number of citations in the United States 
Code, CBO cannot determine with certainty whether those changes 
might impose new enforceable duties on State, local, and tribal 
governments or the private sector.\4\''
---------------------------------------------------------------------------
    \4\ Id.
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    These reports certainly do not provide the assurances we 
should have before reporting a bill to the House. 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.
    Given the unanswered questions about the impact of H.R. 
4292, the prudent course would have been to work the bill 
carefully through the committee. While a hearing was held on 
July 20, 2000, the fact-finding purpose of that hearing was 
obscured when a markup notice was sent prior to the hearing 
stating that the bill would be marked up on the following day. 
The bill was marked up on July 21, 2000, and immediately placed 
on the Full Committee's July 25, 2000 markup calendar. The bill 
was then voted out of the committee on July 26, 2000. Over four 
straight working days, the bill was rushed through the 
subcommittee and the Full Committee, and not one member of the 
committee has furnished an analysis of how this bill would work 
alongside the 72,000 laws it amends. It is quite apparent that 
the Majority considered the political objective much more 
important than the legislative or substantive objective.
    In the end, H.R. 4292 may be the symbolic bill its 
proponents contend that it is, imposing no unintended results. 
I am not satisfied that we know enough to draw that conclusion 
today. The bill's proponents bear the burden of demonstrating 
that the bill will work its symbolic purpose with no unintended 
consequences. Because that burden has not been met, I stand on 
my vote against this bill.

                                   Melvin L. Watt

                                  
