[House Report 107-186]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-186
======================================================================
BORN-ALIVE INFANTS PROTECTION ACT OF 2001
_______
August 2, 2001.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, 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. 2175]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2175) to protect infants who are born alive, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 3
Hearings......................................................... 14
Committee Consideration.......................................... 14
Vote of the Committee............................................ 15
Committee Oversight Findings..................................... 15
Performance Goals and Objectives................................. 15
New Budget Authority and Tax Expenditures........................ 16
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
Markup Transcript................................................ 18
Additional Views................................................. 33
Dissenting Views................................................. 37
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.
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\1\ 530 U.S. 914 (2000).
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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 him or her.
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. Thus, 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\
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\2\ 220 F.3d 127 (3rd Cir. 2000).
\3\ Id. at 143.
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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 though he or she did not exist,
and would not have any 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 it or allowing it 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.
The purposes of H.R. 2175, the ``Born-Alive Infants
Protection Act of 2001'' are:
(1) Lto repudiate the flawed notion that a child's
entitlement to the protections of the law is dependent
upon whether that child's mother or others want him or
her;
(2) Lto repudiate the flawed notion that the right to
an abortion means the right to a dead baby, regardless
of where the killing takes place;
(3) Lto affirm that every child who is born alive--
whether as a result of induced abortion, natural labor,
or caesarean section--bears an intrinsic dignity as a
human being which is not dependent upon the desires,
interests, or convenience of any other person, and is
entitled to receive the full protections of the law;
and
(4) Lto establish firmly that, for purposes of Federal
law, the term ``person'' includes an infant who is
completely expelled or extracted from his or her mother
and who is alive, regardless of whether or not the
baby'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.
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, and/or definite movement 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\
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\4\ 530 U.S. 914 (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 Constitution Subcomm. of the House Comm. on the
Judiciary).
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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 bizarre
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.
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\6\ See Carhart, 530 U.S. at 926, 928-31.
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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\
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\7\ Carhart, 1006-07 (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 953 (Scalia, J., dissenting).
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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\
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 him or her.
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\9\ See id. at 946-947 (Stevens, J., concurring) (stating that
``the notion that [partial-birth abortion] is more akin to infanticide
than [any other abortion procedure] . . . is simply irrational'').
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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\
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\10\ 220 F.3d 127 (3rd Cir. 2000).
\11\ See id. at 143-44.
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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\
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\12\ Id. at 143.
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The logical implications of Stenberg 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\
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\13\ See Angella Johnson, Abortion babies ``should be left to
die'', Africa News Service, Mar. 3, 1997.
\14\ Id.
\15\ Id.
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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\
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\16\ See Victoria Button, Experts Divided on Foetus Protocols, The
Age, Apr. 12, 2000.
\17\ See id.
\18\ Id.
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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
``semantic machinations'' and ``irrational line-drawing'' based
on the infant's ``born'' or ``unborn'' status, bases which the
Third Circuit rejected in Farmer--upon which the government may
prohibit an abortionist from completely delivering an infant
before killing it or allowing it 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, and the risk of fetal
part retention would be reduced--the abortionist may simply
completely deliver the child before killing him or her. The
right to abortion created in Roe thus appears to encompass, at
least in the Supreme Court's view, 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.
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\19\ 505 U.S. 833 (1992).
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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 have been the
position of opponents of the Born-Alive Infants Protection Act
of 2000, H.R. 4292, which was offered in the 106th Congress. 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 were
``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.
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\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). On June 13,
2001, NARAL released a statement in anticipation of the introduction of
H.R. 2175: ``Consistent with our position last year, NARAL does not
oppose passage of the Born Alive Infants Protection Act. Last year's
Committee and floor debate served to clarify the bill's intent and
assure us that it is not targeted at Roe v. Wade or a woman's right to
choose.'' Statement of NARAL On The Born Alive Infants Protection Act,
June 13, 2001 (on file with the Subcomm. on the Constitution of the
House Comm. on the Judiciary).
\21\ Id.
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Rep. Stephanie Tubbs Jones took a similar position during
the Subcommittee on the Constitution's hearing on H.R. 4292.
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 restricted a woman's right
to choose, Rep. Jones contended, by extending protection to
fully born, premature infants in ``direct contravention of Roe
v. Wade and subsequent Supreme Court rulings.'' \23\
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\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.
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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. 2175 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 thirty States and the District of
Columbia.\24\ The Illinois statute provides a model of this
definition:
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\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. 410, Sec. 535/1; 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\
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\25\ Ill. Ann. Stat. Ch. 410, Sec. 535/1 (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\
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\26\ 35 Pa. Const. Stat. Sec. 450.105.
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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 at least 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 1993 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 alleged 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 sometimes
still alive, and then simply allow those who are born alive to
die.\27\
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\27\ See Born-Alive Infants Protection Act: Hearings on H.R. 2175
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 107th Cong., July 12, 2001 (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.).
On July 20, 2000, during the 106th Congress, the Subcommittee on the
Constitution held a hearing on the H.R. 4292, the ``Born-Alive Infants
Protection Act of 2000,'' at which Mrs. Stanek and Mrs. Baker were
witnesses. On July 12, 2001, the Subcommittee held a hearing on H.R.
2175, the ``Born-Alive Infants Protection Act of 2001,'' at which Mrs.
Stanek was a witness. Mrs. Baker's testimony submitted to the
Subcommittee during the 106th Congress was entered into the record
during the Subcommittee's hearing on H.R. 2175.
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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 have also witnessed hospital staff taking many of these
live-born babies into a ``soiled utility closet'' where the
babies would remain until death.\30\ Comfort care, the nurses
say, was only provided sporadically.\31\
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\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.
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Mrs. Stanek, who testified in front of the Subcommittee on
the Constitution during its hearing on H.R. 4292 and H.R. 2175,
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\
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\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,
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\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 Christ 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 Christ 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 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 two years ago in Cincinnati,
Ohio. A young woman learned she was pregnant and sought the
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,'' until the
child died, wrapping her in a blanket and singing to her as she
stroked her cheeks. 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. 2175, the ``Born-Alive Infants Protection Act of
2001,'' 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. 2175 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 thirty States and the
District of Columbia.\54\
---------------------------------------------------------------------------
\54\ See discussion supra.
---------------------------------------------------------------------------
H.R. 2175 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 clarifies 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. 2175 thus affirms, as Professor Hadley Arkes stated in
testimony received by the Subcommittee on the Constitution,
that 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 him or her.
---------------------------------------------------------------------------
\55\ Born-Alive Infants Protection Act: Hearings on H.R. 2175
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 107th Cong., July 12, 2001 (statement of Professor Hadley
Arkes, Amherst College).
---------------------------------------------------------------------------
The protections afforded newborn infants under H.R. 2175
for purposes of Federal law are consistent with the protections
afforded those infants under the laws of the thirty States and
the District of Columbia that define a ``live birth'' in
virtually identical terms. Like those laws, H.R. 2175 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. 2175 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. 2175
H.R. 2175 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. 2175 defines the words
``person,'' ``human being,'' ``child,'' and ``individual'' for
identical purposes.
H.R. 2175 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 in the 106th Congress, the Act 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's 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 a
hearing on H.R. 2175 on July 12, 2001. Testimony was received
from the following witnesses: Hadley Arkes, Ney Professor of
Jurisprudence and American Institutions, Amherst College; Jill
L. Stanek, R.N., Christ Hospital, Oak Lawn, Illinois; Watson A.
Bowes, Jr., M.D., Professor Emeritus of Obstetrics and
Gynocology, School of Medicine, University of North Carolina at
Chapel Hill. Additional material was submitted by Matthew G.
Hile, Ph.D.; F. Sessions Cole, M.D.; Gordon B. Avery, M.D.,
Ph.D.; Advocate Christ Medical Center; and Jill L. Stanek, R.N.
Committee Consideration
On July 12, 2001, the Subcommittee on the Constitution met
in open session and ordered favorably reported the bill H.R.
2175, by a voice vote, a quorum being present. On July 24,
2001, the Committee met in open session and ordered favorably
reported the bill H.R. 2175 without amendment by a recorded
vote of 25 to 2, a quorum being present.
Vote of the Committee
1. Final Passage. The motion to report the bill H.R. 2175
was adopted. The motion was agreed to by a rollcall vote of 25
to 2.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus...................................................... X
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers..................................................... X
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 25 2
----------------------------------------------------------------------------------------------------------------
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.
Performance Goals and Objectives
H.R. 2175 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House is inapplicable.
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. 2175, 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, July 26, 2001.
Hon. F. James Sensenbrenner, Jr., 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. 2175, the Born-
Alive Infants Protection Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 2175--Born-Alive Infants Protection Act of 2001.
H.R. 2175 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 trust and
estate law and negligible effect on Federal tort 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. 2175 on the Federal budget would be negligible.
Anyone prosecuted and convicted under H.R. 2175 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. 2175 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. 2175 would
impose new Federal mandates as defined by the Unfunded Mandates
Reform Act.
The CBO staff contact for this estimate is Lanette J.
Walker, 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
short title of the Act is the Born-Alive Infants Protection Act
of 2001.
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.
Section 8(c) provides that nothing in this section shall be
construed to affirm, deny, expand, or contract any legal status
or legal right applicable to any member of the species homo
sapiens at any point prior to being ``born alive'' as defined
in this section.
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):
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 his or her 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.
(c) Nothing in this section shall be construed to affirm,
deny, expand, or contract any legal status or legal right
applicable to any member of the species homo sapiens at any
point prior to being ``born alive'' as defined in this section.
* * * * * * *
Markup Transcript
BUSINESS MEETING
TUESDAY, JULY 24, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present.
The first item on the agenda is the adoption of H.R. 2175,
the ``Born-Alive Infants Protection Act of 2001.''
[The bill, H.R. 2175, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the
Constitution, for a motion.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Chairman, the Subcommittee on the Constitution reports
favorably the bill H.R. 2175 and moves its favorable
recommendation to the full House.
Chairman Sensenbrenner. Without objection, H.R. 2175 will
be considered as read and open for amendment at any point.
The Chair recognizes the gentleman from Ohio to strike the
last word.
Mr. Chabot. Thank you, Mr. Chairman.
This morning, the Committee will consider H.R. 2175, the
``Born-Alive Infants Protection Act of 2001.'' The Born-Alive
Infants Protection Act is designed to protect all born-alive
infants by recognizing them as a person, human being, child, or
individual for purposes of Federal law.
This recognition would take effect upon the live birth of
an infant, regardless of whether or not the child's development
is sufficient to permit long-term survival and regardless of
whether the child survived an abortion. The act also clarifies
that nothing in the bill shall be construed to affirm, deny,
expand, or contract any legal status or legal rights applicable
to an unborn child.
This truly is a bill of compassion, a bill that says all of
America's children are precious and should be protected. It has
long been an accepted legal principle that infants who are born
alive are persons, entitled to the protections of the law. A
live birth is considered to occur whenever an infant is
expelled from his or her mother's body and displays any of
several specific signs of life: breathing, a heartbeat, or
definite movement of voluntary muscles.
Thirty States and the District of Columbia have statutes
that, with some variations, explicitly enshrine this principle
as a matter of State law, and some Federal courts have
recognized the principle in interpreting Federal criminal laws.
But recent changes in the legal and cultural landscape appear
to have brought this well-settled principle into question.
For example, when the United States Supreme Court struck
down Nebraska's partial-birth abortion statute in Stenberg v.
Carhart, it failed to consider the legal significance of any
infant's location relative to its mother's body at the moment
he or she is killed during an abortion. What was described in
Roe v. Wade as a right to abort unborn children was extended to
include the violent destruction of partially-born children just
inches from birth. The Carhart ruling presents a serious threat
to the born-alive principle because it left the door open for a
future court to explicitly reject the importance of an infant's
location relative to his or her mother during an abortion. In
fact, this is the position of two members of the Carhart
majority.
Shortly after the Carhart ruling, the Third Circuit Court
of Appeals in Planned Parenthood of Central New Jersey v.
Farmer concluded not only that it was ``nonsensical'' to
prohibit abortions based upon the location of the baby at the
moment it is killed, but, also, that an infant who is killed
during a partial-birth abortion is not entitled to the
protections of the law because, quote, ``a woman seeking an
abortion is plainly not seeking to give birth.''
Under the logic of these rulings, it may ultimately become
irrelevant whether a child emerges from the mother's womb as a
live baby. That child may still be treated as a non-entity,
without rights under the law, no right to receive medical care,
to be sustained in life, or receive basic comfort care.
On July 12th, the Constitution Subcommittee received
credible evidence that this is, in fact, already occurring.
Jill Stanek, a nurse at Christ Hospital in Oak Lawn, Illinois,
testified about one aborted baby left to die on the counter of
the soiled utility room wrapped in a disposable towel that 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 onto the floor.
As Professor Hadley Arkes stated in testimony received by
the Subcommittee, the Carhart ruling has, indeed, brought us to
the threshold of outright infanticide, and it takes but the
shortest step to cross that threshold. That's why it's
imperative that Congress firmly establish the born-alive
principle in Federal law. Although this rule has been codified
in most States, the notion that an abortion survivor is not a
person still remains plausible precisely because it has not
been explicitly refuted or rejected.
It is important to note that H.R. 2175 will not mandate
medical treatment where none is currently indicated. As Dr.
Watson Bowes told the Subcommittee, ``this bill does not
legislate how physicians and parents may deal with the
decisions about withholding or discontinuing medical or
surgical treatment that is considered futile in the care of an
infant.'' Instead, it ``deals solely with the criteria that
define whether an infant is alive at the time of birth.''
The Born-Alive Infants Protection Act draws a bright line
between the right to an abortion, which the Supreme Court has
now said includes the right to kill partially born children,
and infanticide, or the killing of a completely born child--a
distinction that the Carhart court refused to recognize.
H.R. 2175 was introduced by a bipartisan coalition of more
than 70 original cosponsors and was reported favorably by the
Subcommittee on the Constitution without amendment. Virtually
identical legislation was approved by the House of
Representatives last Congress with an overwhelming majority. I
urge this Committee to approve this important piece of
legislation so that all newborn infants will receive the
protection of Federal law regardless of the circumstances of
their birth.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman's time has expired.
Who would like to give the opening statement for the
minority? The gentlewoman from California strikes the last word
and is recognized for 5 minutes.
Ms. Lofgren. Mr. Chairman, this bill was addressed by the
Committee in the 106th Congress, and I believe that this year,
as with last year, there will be support on both sides of the
aisle for the measure.
I would note, however, although I'm not a Member of the
Subcommittee, that the--we often hear these wild stories
relative to births, and yet when you dig a bit deeper, you find
that those wild stories are not unconfronted. For example, in
the story just relayed by the Chairman of the Committee, the
hospital itself, the Advocate Christ Medical Center, indicated
that the hospital terminates pregnancies only when medically
necessary, that no pregnancy is terminated without the informed
consent of the family and the Perinatal Ethics Committee, that
the hospital always assesses the medical condition of neonates
and provides treatment to those who can survive outside the
womb and that non-viable fetuses are, in fact, given comfort
care that shows respect for life, no matter how brief. So I
think it's important that we--while coming together, to note
that there's not a hospital in America that would refuse to
provide medical care to an infant born. There's certainly,
therefore, nothing wrong with codifying that fact in Federal
law.
I would note that the language of the bill is sloppily
drafted and is more of a political nature than a tightly drawn
medical-legal statute. But I'm not going to let that deter me
from voting for it because I know that should this ever move
through the Senate that the language can be tightened up and
made more judicial.
So I would just like to note that there is not a division
on the Committee. I think there is misadvised rhetoric, stories
that are without foundation, but that will not deter from us
all voting for this measure.
Mr. Conyers. Would the gentlelady yield?
Ms. Lofgren. I would certainly yield to the Ranking Member.
Mr. Conyers. Thank you. I'd like to get unanimous consent
to insert the statements of Representatives Jerry Nadler and
myself at this point?
Chairman Sensenbrenner. Without objection, so ordered, and
also without objection, all Members may insert statements in
the record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
Last Congress, we considered legislation similar to H.R. 2175, the
``Born-Alive Infants Protection Act.'' I supported the bill last
Congress--as I support this bill--because it does not change current
law.
Although the bill is redundant and somewhat unnecessary, I will
vote for H.R. 2175 to reaffirm that all newborns and children are
entitled to legal protection.
Importantly, Dr. Watson Bowes Jr., a specialist in obstetrics and
maternal-fetal medicine, testified before the Constitution Subcommittee
that this bill will not adversely affect the ability of physicians and
parents to deal with the heart-rending decisions about withholding or
discontinuing medical or surgical treatment that is considered futile
in the care of an infant.
Dr. Bowes also confirmed that the bill does not change the standard
of care in current law.
Since this legislation will not change the law in any way, the real
question is why we are spending time on this bill when there are real
health care issues for pregnant women, infants, and children that are
going unaddressed.
Over 400,000 pregnant women in the United States are uninsured--
making it much more difficult and costly for them to receive proper
prenatal care. In order to reduce low birth weight babies, and give
infants their best chance for a healthy childhood, proper prenatal care
is essential.
In addition, there are 10 million children in this country who are
uninsured. These children do not have access to both routine and
emergency health care services.
Rather than passing redundant legislation, Congress should be
spending its time on proposals to encourage the States to reach out to
pregnant women and families to make it easier for them to enroll in
Medicaid and the Children's Health Insurance Program (CHIP).
Finally, we need to fully fund Head Start, which has been proven to
improve academic performance for poor and underserved children.
Currently, only 25-30% of eligible children are enrolled in Head Start
programs. We need to serve 100% of these children.
Only after these other priorities are taken care of, should the
Committee spend time on bills that re-state current law.
[The prepared statement of Mr. Nadler follows:]
Mr. Chabot. Will the gentlelady further yield?
Ms. Lofgren. I would certainly yield to the gentleman.
Mr. Chabot. I thank the gentlelady for yielding. I'll be
very brief. You mentioned that the language is sloppily worded.
I might note that this is the same language that was used by
the World Health Organization, a draft of 50 years ago, and is
used in many States around the country. So the language----
Ms. Lofgren. Well, reclaiming my time, they don't have the
responsibility for drafting the Federal code. We do. However,
as I mentioned, I will vote for this noting that if this
proceeds into the Senate that wiser heads will clean up the
language and make sure that lawyers around the world can
actually--around the country can actually apply it should this
ever be applied, which I doubt very much, since this is the
standard of care in every hospital in America.
And, with that, I would yield back to the Chairman the
remainder of my time.
Chairman Sensenbrenner. Are there amendments? For what
purpose does the gentleman from North Carolina seek
recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. I actually was going to
sit and just let this bill be voted on and vote against it. But
I'm afraid my colleague from California left a misimpression
that there was no division on the Committee about it, and I
don't want to leave that misimpression.
I voted against this bill last year in Committee and on the
floor. I voted against it in the Subcommittee. And I intend to
vote against it today if anybody calls for a recorded vote, not
so much because I disagree with what the proponents of the bill
say the bill stands for, but because I still, even after all
this time, don't understand the implications of it.
At its best, the bill does nothing, and many of the
supporters of this bill say that it does nothing. It does not
change existing law. It does nothing. And that's certainly not
a compelling reason to vote for a piece of legislation.
But that's not my concern, either. My concern is that the
Congressional Research Service has indicated that there are
over 15,000 provisions in the United States Code and 57,000
provisions in the Code of Federal Regulations which use the
terms ``person,'' ``human being,'' ``child,'' ``individual,''
and we don't have a clue what this bill does with respect to
those provisions in the United States Code. And I simply think
it's irresponsible for the Judiciary Committee, of all places,
to be reporting a bill out and supporting a bill which some
people say does nothing and, if it does, then I don't
understand the rationale for it.
But if it does something, we at least in the Judiciary
Committee ought to understand exactly what it does. What
implications does it have for inheritance laws? What
implication does it have for the myriad of statutory provisions
that use these terms in the United States Code and in the Code
of Federal Regulations? And nobody has been able to tell me
that, and I'm sorry, I'm just not going to get on this boat
just because the boat is moving and maybe there's nothing of
harm to be done by this bill.
I'll yield to the gentlelady from California.
Ms. Lofgren. I would just--I appreciate the gentleman for
yielding, and I just wanted to offer my apologies for speaking
for him incorrectly and--which I did not mean to do, and I
gratefully yield back to the gentleman.
Mr. Watt. I yield back the balance of my time, Mr.
Chairman.
Chairman Sensenbrenner. Are there amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Nadler. Thank you. Thank you, Mr. Chairman.
Today we consider legislation reaffirming an important
principle which is enshrined in the laws of all 50 States
already: that an infant who is born and who is living
independently of the birth mother is entitled to the same care
as any other child similarly diagnosed, regardless of whether
labor was induced or occurred spontaneously.
It has never been clear to me why we need to legislate that
which most Members of Congress and the general public already
assumed and knew to be the law. But if the majority's
interested in a belts-and-suspenders approach and in restating
the law, so be it.
This same measure passed just recently as an amendment to
the Patients' Bill of Rights legislation in the Senate by a
vote of 98 to nothing, which is about as uncontroversial as
something can get. Even such pro-choice Members as our
colleague, the junior Senator from California, spoke in favor
of it.
I am pleased that the majority has made a serious effort to
make clear that this bill has nothing to do with matters
related to abortion, even going so far as to add a subsection
(C) further clarifying that point.
Whatever concerns we may have had last year that this might
become some clever way to undermine the rights protected under
Roe v. Wade have, I think, been addressed. Unless someone
attempts to disrupt this effort by dragging the abortion debate
back into it, I have little doubt that this bill will be passed
without much controversy.
I would like to address the concern that our Republican
colleague, the gentlewoman from Connecticut, Mrs. Johnson, has
enunciated most eloquently; that is, the standard of care
employed by neonatologists when faced with a non-viable newborn
or a clearly critically ill or massively deformed newborn.
These are difficult medical issues and often horrendous
circumstances which confront hopeful families every day. I am
cognizant of the fact that these are complex issues which
doctors, hospitals, families, and courts grapple with every
day.
I would quote the Committee's report from the last Congress
which makes clear that this legislation, quote, ``would not
mandate medical treatment where none is currently indicated.
While there is a 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 the infant is a person. This
legislation would not affect the applicable standard of care,
but would only ensure 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.''
Close quote.
I do not want to trivialize the concerns of neonatologists,
but I was gratified by the testimony that we received from the
majority witnesses at our Subcommittee hearing on this
legislation, which indicated that while an infant may be
considered born alive under this legislation, it would not in
any substitute the medical judgment of Congress for the
judgment of doctors on the scene or interfere with the painful
decisions that families must make under the most difficult of
circumstances. We must respect families and not have the big
hand of government make their worst moments even more
unbearable.
I trust that the sponsors of this legislation are in
agreement on this point.
There has been a great deal of debate over the question
about whether there is some sort of recognized legal right to a
dead baby when a parent intends to abort a fetus. My colleagues
well know that the line drawn by the Supreme Court is that of
viability within the womb and that outside the womb the normal
laws governing the appropriate care of newborns, taking into
account the prognosis made by a trained health care provider,
apply. This bill simply restates the law as we always knew it
to be.
The rather horrific accounts told by the majority witnesses
at the Committee, the same accounts and the same witnesses this
year as last, are already illegal, as far as I know, in every
State under the Union, and they make a case for better
enforcement of the law, but not for any legislation.
This legislation is unnecessary but I believe harmless. If
it helps the majority in some way to assuage somebody's
conscience, I see no reason to oppose it, as long as it is
clear that this has nothing to do with abortion. There is no
such thing as ``born-alive abortions.'' That's a figment of
somebody's imagination. And we will not fall into a trap,
which, again, the majority has assuaged with some clear
language this year, of opposing this bill on any such grounds.
I do not anticipate any amendments, and with the Chairman's
agreement that we are in accord, I do not see any need to drag
out this process.
Thank you, Mr. Chairman. I yield back.
Chairman Sensenbrenner. Are there amendments? The Chair
hears none. Reporting quorum is present. The question occurs on
the motion to report H.R. 2175 favorably. All in--all in favor,
say aye? Opposed, no? The ayes appear to have it.
The ayes have it. The motion----
Mr. Chabot. Mr. Chairman? Mr. Chairman, could we have a
recorded vote on that, please?
Chairman Sensenbrenner. Roll call is requested. The Chair
will order a roll call. Those in favor of reporting H.R. 2175
favorably will, as your names are called, answer aye; those
opposed, no; and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye. Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
Mr. Hutchinson. Aye.
The Clerk. Mr. Hutchinson, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional Members who
wish to cast or change their votes? The gentleman from
California, Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Chairman Sensenbrenner. Anybody else? If not, the clerk
will report.
The Clerk. Mr. Chairman, there are 24 ayes----
Chairman Sensenbrenner. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chairman, there are 25 ayes and 2 noes.
Chairman Sensenbrenner. And the motion to report is agreed
to. Without objection, the staff is directed to make technical
and conforming changes, and without objection, pursuant to
House rules, the Chairman is authorized to go to conference.
Additional Views
We write as Members who supported the passage of H.R. 2175
in order to clarify our understanding of this legislation based
on a plain reading of the bill's language and the record made
by the sponsors as to its meaning.
The bill amends title 1, U.S. Code, to add at the end a
definition of the terms ``person,'' ``human being,'' ``child,''
and ``individual'' to include ``any infant member of the
species homo sapiens who is born alive at any stage of
development.'' \1\ The term ``born alive'' is defined to
require that a fetus is entirely expelled or extracted from the
mother and shows breathing, ``a beating heart, pulsation of the
umbilical cord, or definite movement of voluntary muscles.''
The definition applies regardless of whether the umbilical cord
has been cut or whether the expulsion or extraction occurs
through natural or induced labor, cesarean section, or induced
abortion. The viability of the fetus outside the womb is not an
element of the definition.
---------------------------------------------------------------------------
\1\ While the proposed act does not include a specific extension of
the ``born alive'' definition to the term ``infant,'' the title and
definition of the act suggest the intent to do so.
---------------------------------------------------------------------------
A rule of construction in a new subsection (c), absent from
the version of the bill passed by the House in the 106th
Congress, states that the bill is neutral with respect to
abortion rights, providing that the section shall not be
construed to ``affirm, deny, expand, or contract any legal
status or legal right applicable to any member of the species
homo sapiens at any point prior to being `born alive.' '' We
believe that this clarification further resolves concerns that
this legislation may have been intended as a back-door effort
to affect abortion and reproductive rights rather than applying
solely to the status of an infant following birth. It is also
consistent with current law. As a general matter, the Supreme
Court has held that ``the unborn have never been recognized in
the law as persons in the whole sense,'' and the law has been
reluctant to afford any legal rights to nonviable fetuses
``except in narrowly defined situations and except when the
rights are contingent upon live birth.'' \2\
---------------------------------------------------------------------------
\2\ Roe v. Wade, 410 U.S. 113, 161-62 (1973). The Supreme Court
held in Roe that a fetus, even when viable, is not a person under the
Fourteenth amendment. Id. at 152-53. Although the Court found that the
State has a compelling interest in the ``potentiality of human life''
of the fetus after it reaches viability, it concluded that this
interest could not justify prohibiting an abortion even after the point
of viability if the abortion is necessary to preserve the life or
health of the woman. Id. at 162-63.
---------------------------------------------------------------------------
We would note that the full implications of H.R. 2175 are
unknown. A complete analysis of the bill would require enormous
resources. According to the CRS Memorandum prepared in the
106th Congress, the terms ``person,'' ``human being,''
``child,'' and ``individual'' appear in at least 15,000
sections of the U.S. Code and are found in over 57,000 sections
of the Code of Federal Regulations. There is no evidence to
suggest that the sponsors of this bill have examined these
Federal laws and regulations to identify all of the bill's
potential consequences, and the CRS researchers stated that
``an evaluation of the statutory and regulatory impact of the
act is beyond the resources of [their] office.'' \3\
---------------------------------------------------------------------------
\3\ Kenneth Thomas & Jon O. Shimabukuro, ``The Born Alive Infant
Protection Act of 2000,'' Congressional Research Service Memorandum, at
2, (July 18, 2000).
---------------------------------------------------------------------------
One concern which has been raised is that the bill might
affect decisions with regard to the standard of care owed to a
previable fetus which has been expelled as a result of
spontaneous or induced labor, or to a fetus which is afflicted
with massive fetal anomalies. Dr. Gordon Avery, an expert in
the field of neonatology, wrote a letter to the Committee
arguing that H.R. 2175's definition of ``born alive'' was too
broad, as non-living entities may show involuntary movements
such a heartbeat or twitching muscles. He expressed the concern
that the definition of ``born alive,'' which would apply to
severely premature neonates with ``a single gasp, a muscle
twitch, any pulsation of the umbilical cord'' but no chance of
life outside the womb, would cloud the waters for medical
professionals and families making decisions as to the
appropriate standard of care.\4\
---------------------------------------------------------------------------
\4\ Letter of Dr. Gordon B. Avery to Rep. Nadler, June 21, 2001.
These are not merely the isolated concerns of an academic
neonatologist. In testimony before the Subcommittee in the 106th
Congress, Dr. Francis Sessions Cole of Children's Hospital in St. Louis
stated that the imposition of this universal definition might
``significantly interfere with the agonizing, painful and personal
decisions that must be left to parents in consultation with their
physicians.'' In debate on the legislation in the 106th Congress, Rep.
Nancy Johnson (R-CT) spoke against the bill on these grounds, saying
that it would ``deny parents and deny doctors the right to make
decisions about premature infants. An infant born at 3\1/2\ , 4\1/2\,
5\1/2\ months is a tragedy, and parents in a free society in America
deserve the right to determine what medical care they will have,
recognizing that the law requires [that] newborns receive all medically
indicated treatment.'' 146 Cong. Rec. H8160 (Sept. 26, 2000).
---------------------------------------------------------------------------
If, however--as we have been assured by the Majority--the
bill does not change existing law, it should not affect the
decisions of families and neonatologists. Furthermore,
according to the Majority report filed in the 106th Congress,
the ``bright line'' of complete extraction would not constrain
or in any way chill medical care given to a woman or to her
offspring:
[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. . . . 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.\5\
---------------------------------------------------------------------------
\5\ H. Rep. No. 835, 106th Cong., 2d Sess. 13 (Sept. 11, 2000).
This accords with the testimony received by the
Subcommittee on the Constitution from Majority witnesses. Dr.
Watson A. Bowes, Jr., a former Chairman of the Committee on
Ethics of the American College of Obstetricians and
Gynecologists, stated,
``[T]his definition of live birth does not restrict a
physician's prerogative to recommend that medical care regarded
as futile be withdrawn or withheld. It is important to keep in
mind that this bill deals solely with the criteria that define
whether an infant is alive at the time of birth. It does not
legislate how physicians and parents may deal with the decision
about withholding or discontinuing medical or surgical
treatment that is considered futile in the care of an infant.''
\6\
---------------------------------------------------------------------------
\6\ Hearing on H.R. 2175, The Born-Alive Infants Protection Act of
2001 Before the Subcomm. on the Constitution of the Comm. on the
Judiciary, 107th Cong., 1st Sess. 33 (July 12, 2001) (testimony of Dr.
Watson A. Bowes, Jr.).
---------------------------------------------------------------------------
In addition, even in the situations described by Majority
witness nurse Jill Stanik, Dr. Bowes stated that ``I don't
think this [legislation] changes medical care for those
babies.'' \7\
---------------------------------------------------------------------------
\7\ Id. at 42.
---------------------------------------------------------------------------
In light of the fact that H.R. 2175 does not apply to
abortion or other pre-birth decisions concerning human
reproduction, and that it is clear that the bill does not
substitute the judgement of Congress for the judgement of a
qualified health care provider, we remain puzzled about the
ultimate purpose of this legislation. Insofar as it prohibits
the killing of an infant following a live birth, or the denial
of treatment where it would be medically indicated and legally
required under current law and practice, it reflects the laws
of all 50 States, the District of Columbia and the territories
of the United States. It is unfortunate that the bill provides
a platform for the overheated rhetoric of a few who wish to
suggest that viable healthy infants are being permitted to die
in our nation's hospitals, even though the sponsors have never
been able to point to so much as one prosecution connected with
these alleged activities.
With these understandings and clarifications from the
sponsors and their witnesses, we are able to support this
legislation.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Tammy Baldwin.
Dissenting Views
We voted against H.R. 2175, the ``Born-Alive Infants
Protection Act,'' at the July 24, 2001 House Judiciary
Committee markup because this bill has not been studied in a
responsible way before being considered by the Judiciary
Committee.
According to the Congressional Research Service's (CRS)
analysis of the bill's virtually identical predecessor from the
106th Congress (H.R. 4292), this bill would amend some 15,000
provisions of the U.S. Code and 57,000 provisions of the Code
of Federal Regulations.\1\ Both the CRS and the Congressional
Budget Office (CBO) reviewed the earlier version of the bill
and neither reached a definitive conclusion about what the bill
would do. The CRS concluded:
---------------------------------------------------------------------------
\1\ Kenneth Thomas and Jon Shimabukuro, ``The Born-Alive Infants
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.
Similarly, 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 we understand the bill's proponents, they intend to
codify and reaffirm, not change, the substantive law. If the
purpose of the bill is only to restate present law, then the
best way to do that is to pass no bill at all.
Changing the definition of the terms ``person,'' ``human
being,'' ``child,'' and ``individual'' as they appear in more
than 72,000 Federal statutes and regulations carries an
enormous risk of unintended consequences. The statutes and
regulations prospectively affected could include, for example,
such wide-ranging topics as criminal laws, inheritance laws,
tax laws, tort laws, insurance laws and programs that provide
benefits. Moreover, 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.
---------------------------------------------------------------------------
In addition, the definitional changes proposed by the bill
could create potential confusion and conflicts with State law
definitions of what constitutes life and death. An infant could
be ``born alive'' under the new definition in Federal law, but
never considered alive under a State statute that determines
life based on brain activity.
In light of the many unanswered questions about the effects
of the bill, we do not have the certainty necessary to
favorably report a bill to the House. Although the original
version of this bill was introduced over a year ago, its
sponsors have yet to provide any substantive analysis on the
effects of the bill, or that the bill will work its symbolic
purpose with no unintended consequences or conflicts.
In the end, H.R. 2175 may prove to be the symbolic bill its
proponents contend that it is. However, we are not able to
reach that conclusion today, and we stand on our vote against
this bill.
Robert C. Scott
Melvin L. Watt