[House Report 106-835]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-835
======================================================================
BORN-ALIVE INFANTS PROTECTION ACT OF 2000
_______
September 11, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 4292]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4292) to protect infants who are born alive, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
TABLE OF CONTENTS
Page
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 3
Hearings................................................... 14
Committee Consideration.................................... 14
Vote of the Committee...................................... 14
Committee Oversight Findings............................... 15
Committee on Government Reform Findings.................... 15
New Budget Authority and Tax Expenditures.................. 15
Congressional Budget Office Cost Estimate.................. 16
Constitutional Authority Statement......................... 17
Section-by-Section Analysis and Discussion................. 17
Changes in Existing Law Made by the Bill, as Reported...... 17
Additional Views........................................... 19
Dissenting Views........................................... 21
Purpose and Summary
It has long been an accepted legal principle that infants
who are born alive, at any stage of development, are persons
who are entitled to the protections of the law. But recent
changes in the legal and cultural landscape have brought this
well-settled principle into question.
In Stenberg v. Carhart,\1\ for example, the United States
Supreme Court struck down a Nebraska law banning partial-birth
abortion, a procedure in which an abortionist delivers an
unborn child's body until only the head remains inside of the
womb, punctures the back of the child's skull with scissors,
and sucks the child's brains out before completing the
delivery. What was described in Roe v. Wade as a right to abort
``unborn children'' has thus been extended by the Court to
include the violent destruction of partially born children just
inches from complete birth.
---------------------------------------------------------------------------
\1\ 120 S. Ct. 2597 (2000).
---------------------------------------------------------------------------
The Carhart Court considered the location of an infant's
body at the moment of death during a partial-birth abortion--
delivered partly outside the body of the mother--to be of no
legal significance in ruling on the constitutionality of the
Nebraska law. Instead, implicit in the Carhart decision was the
pernicious notion that a partially born infant's entitlement to
the protections of the law is dependent upon whether or not the
partially born child's mother wants the child.
Following Stenberg v. Carhart, on July 26, 2000, the United
States Court of Appeals for the Third Circuit made that point
explicit in Planned Parenthood of Central New Jersey v.
Farmer,\2\ in the course of striking down New Jersey's partial-
birth abortion ban. According to the Third Circuit, under Roe
and Carhart, it is ``nonsensical'' and ``based on semantic
machinations'' and ``irrational line-drawing'' for a
legislature to conclude that an infant's location in relation
to his or her mother's body has any relevance in determining
whether that infant may be killed. Instead, the Farmer Court
repudiated New Jersey's classification of the prohibited
procedure as being a ``partial birth,'' and concluded that a
child's status under the law, regardless of the child's
location, is dependent upon whether the mother intends to abort
the child or to give birth. The Farmer Court stated that, in
contrast to an infant whose mother intends to give birth, an
infant who is killed during a partial-birth abortion is not
entitled to the protections of the law because ``[a] woman
seeking an abortion is plainly not seeking to give birth.'' \3\
---------------------------------------------------------------------------
\2\ 220 F.3d 127 (3rd Cir. 2000).
\3\ Id. at 143.
---------------------------------------------------------------------------
The logical implications of Carhart and Farmer are both
obvious and disturbing. Under the logic of these decisions,
once a child is marked for abortion, it is wholly irrelevant
whether that child emerges from the womb as a live baby. That
child may still be treated as a non-entity, and would have not
the slightest rights under the law--no right to receive medical
care, to be sustained in life, or to receive any care at all.
And if a child who survives an abortion and is born alive would
have no claim to the protections of the law, there would, then,
be no basis upon which the government may prohibit an
abortionist from completely delivering an infant before killing
the infant or leaving the infant to die. The ``right to
abortion,'' under this logic, means nothing less than the right
to a dead baby, no matter where the killing takes place.
Credible public testimony received by the Subcommittee on
the Constitution of the Committee on the Judiciary indicates
that this is, in fact, already occurring. According to
eyewitness accounts, ``induced-labor'' or ``live-birth''
abortions are indeed being performed, resulting in live-born
premature infants who are simply allowed to die, sometimes
without the provision of even basic comfort care such as warmth
and nutrition.
H.R. 4292, the Born-Alive Infants Protection Act of 2000,
was designed to repudiate the pernicious and destructive ideas
that have brought the born-alive rule into question, and to
firmly establish that, for purposes of Federal law, an infant
who is completely expelled or extracted from his or her mother
and who is alive is, indeed, a person under the law--regardless
of whether or not the child's development is believed to be, or
is in fact, sufficient to permit long-term survival, and
regardless of whether the baby survived an abortion. H.R. 4292
accomplishes this by providing that, for purposes of Federal
law, ``the words `person,' `human being,' `child,' and
`individual,' shall include every infant member of the species
homo sapiens who is born alive at any stage of development.''
Background and Need for the Legislation
I. Erosion of Legal Rights of Born-Alive Infants
It has long been accepted as a legal principle that infants
who are born alive are persons who are entitled to the
protections of the law, and that a live birth occurs whenever
an infant, at any stage of development, is expelled from the
mother's body and displays any of several specific signs of
life--breathing, a heartbeat, or definite movements of
voluntary muscles. Many States have statutes that, with some
variations, explicitly enshrine this principle as a matter of
State law, and Federal courts have recognized the principle in
interpreting Federal criminal laws. Recent changes in the legal
and cultural landscape appear, however, to have brought this
well-settled principle into question.
A. The Supreme Court's Recent Partial-Birth Abortion Decision Erodes
the Born-Alive Principle and Creates Confusion Regarding
Infanticide and the Legal Status of Abortion Survivors
On June 28, 2000, in Stenberg v. Carhart,\4\ the United
States Supreme Court struck down a Nebraska law banning
partial-birth abortion, a procedure in which an abortionist
dilates a pregnant woman's cervix, delivers the unborn child's
body until only the head remains inside of the mother,
punctures the back of the child's skull with scissors, and
sucks the child's brains out before completing the delivery. It
is a matter of public record that this grisly abortion
procedure is extremely painful to the child, is never medically
necessary to preserve the life or health of the mother, and
indeed is dangerous to women who undergo it. In the words of
the American Medical Association, partial-birth abortion is
``not medically indicated'' in any situation and is ``not good
medicine.'' \5\
---------------------------------------------------------------------------
\4\ 120 S. Ct. 2597 (2000).
\5\ Letter from P. John Seward, M.D., Executive Vice President,
American Medical Association, to U.S. Sen. Rick Santorum (May 19, 1997)
(on file with the Subcomm. on the Constitution of the House Comm. on
the Judiciary).
---------------------------------------------------------------------------
Notwithstanding the compelling record against partial-birth
abortion, the Carhart Court held that the abortion right
created in Roe v. Wade encompasses the right to partial-birth
abortion. That is, what was described in Roe v. Wade as a right
to abort ``unborn children'' has now been extended by the Court
to include the brutal killing of partially-born children just
inches from birth. The Carhart Court based its conclusion on
claims by abortionists that partially delivering an infant
before killing it is safer for the mother because it requires
less ``instrumentation'' in the birth canal and reduces the
risk of complications from ``retained fetal body parts.'' \6\
As discussed below, these same claims would support an
abortionist's argument that fully delivering an infant before
killing it is safer for the mother and is, therefore,
constitutionally protected.
---------------------------------------------------------------------------
\6\ See Carhart, 120 S. Ct. at 2608-10.
---------------------------------------------------------------------------
The Carhart Court thus thwarted Nebraska's efforts (and the
efforts of numerous other States) to, in the words of Justice
Thomas in dissent, ``prohibit[] a procedure that approaches
infanticide, and thereby dehumanizes the fetus and trivializes
human life.'' \7\ The result of the Court's decision, as
Justice Scalia noted in dissent, ``is to give live-birth
abortion free rein,'' and to endorse the absurd notion that
``the Constitution of the United States, designed, among other
things, `to establish Justice, insure domestic Tranquility, . .
. and secure the Blessings of Liberty to ourselves and our
Posterity,' prohibits the States from simply banning this
visibly brutal means of eliminating our half-born posterity.''
\8\
---------------------------------------------------------------------------
\7\ Carhart, 120 S. Ct. at 2649 (Thomas, J., dissenting). Justice
Thomas noted that ``[t]he AMA has recognized that this procedure is
`ethically different from other destructive abortion techniques because
the fetus, normally twenty weeks or longer in gestation, is killed
outside the womb. The ``partial birth'' gives the fetus an autonomy
which separates it from the right of the woman to choose treatments for
her own body.' '' Id. (quoting AMA Board of Trustees Factsheet on H.R.
1122 (June 1997), in App. to Brief for Association of American
Physicians and Surgeons et al. as Amici Curiae 1).
\8\ Id. at 2621 (Scalia, J., dissenting).
---------------------------------------------------------------------------
The Carhart Court considered the location of an infant's
body at the moment of death during a partial-birth abortion--
delivered partly outside the body of the mother--to be of no
legal significance in ruling on the constitutionality of the
Nebraska law. (Indeed, two members of the majority, Justices
Stevens and Ginsburg, went so far as to say that it was
``irrational'' for the Nebraska legislature to take the
location of the infant at the point of death into account.\9\)
Implicit in the Carhart decision was the pernicious notion that
a partially born infant's entitlement to the protections of the
law is dependent upon whether or not the partially born child's
mother wants him or her.
---------------------------------------------------------------------------
\9\ See id. at 2617 (Stevens, J., concurring) (stating that ``the
notion that [partial-birth abortion] is more akin to infanticide than
[any other abortion procedure] . . . is simply irrational'').
---------------------------------------------------------------------------
Following Stenberg v. Carhart, on July 26, 2000, the United
States Court of Appeals for the Third Circuit made that point
explicit in Planned Parenthood of Central New Jersey v.
Farmer,\10\ in the course of striking down New Jersey's
partial-birth abortion ban. According to the Third Circuit,
under Roe and Carhart, it is ``nonsensical'' and ``based on
semantic machinations'' and ``irrational line-drawing'' for a
legislature to conclude that an infant's location in relation
to his or her mother's body has any relevance in determining
whether that infant may be killed.\11\
---------------------------------------------------------------------------
\10\ 220 F.3d 127 (3rd Cir. 2000).
\11\ See id. at 143-44.
---------------------------------------------------------------------------
Instead, the Farmer Court repudiated New Jersey's
classification of the prohibited procedure as being a ``partial
birth,'' and concluded that a child's status under the law,
regardless of his or her location, is dependent upon whether
the mother intends to abort the child or to give birth. The
Farmer Court stated that, in contrast to an infant whose mother
intends to give birth, an infant who is killed during a
partial-birth abortion is not entitled to the protections of
the law because ``[a] woman seeking an abortion is plainly not
seeking to give birth.'' \12\
---------------------------------------------------------------------------
\12\ Id. at 143.
---------------------------------------------------------------------------
The logical implications of Carhart and Farmer are both
obvious and disturbing. If the right to abortion entails the
right to kill without regard to whether the child remains in
the mother's womb, and a child's entitlement to the protections
of the law depends upon whether or not the child's mother
intends to abort the child or give birth, it follows that
infants who are marked for abortion but somehow survive and are
born alive have no legal rights under the law--no right to
receive medical care, to be sustained in life, or receive any
care at all.
Indeed, that is precisely where the abortion right has
taken the law in South Africa. Under guidelines promulgated by
the South African Department of Health, babies who survive
abortions are to be left to die even if they are gasping for
breath and struggling to survive.\13\ The guidelines state that
``if an infant is born who gasps for breath, it is advised that
the foetus does not receive any resuscitation measures.'' \14\
Many doctors and nurses in South Africa have expressed outrage
at the guidelines. One female physician in KwaZulu-Natal said
that ``[i]t is inhuman and against all my principles. . . . No
way will I stand by and do nothing to resuscitate a child. It
is impossible and we should not be put in such a position.''
\15\
---------------------------------------------------------------------------
\13\ See Angella Johnson, Abortion babies `should be left to die',
Africa News Service, Mar. 3, 1997.
\14\ Id.
\15\ Id.
---------------------------------------------------------------------------
A debate over this same issue is also currently taking
place in Australia. Some medical experts contend that babies
who survive abortions have the right to medical attention from
a physician, just as the elderly and terminally ill do.\16\
Other experts contend that abortion survivors should not
receive medical attention.\17\ For example, the chairman of
Family Planning Australia, Gab Kovacs, contends that babies who
survive abortions ``should be left to succumb in peace, on a
cot in a back room, for example.'' \18\
---------------------------------------------------------------------------
\16\ See Victoria Button, Experts Divided on Foetus Protocols, The
Age, Apr. 12, 2000.
\17\ See id.
\18\ Id.
---------------------------------------------------------------------------
Moreover, if, under Carhart and Farmer, a child who
survives an abortion and is born alive is not entitled to the
protections of the law simply because the child's mother did
not intend to give birth, then there is no basis--other than
what the Third Circuit in Farmer dismissed as ``semantic
machinations'' and ``irrational line-drawing'' based on the
infant's ``born'' or ``unborn'' status--upon which the
government may prohibit an abortionist from completely
delivering an infant before killing the infant or leaving the
infant to die. Under the logic of these decisions, if a woman
decides to abort her unborn child, and the abortionist decides
that the health risks to the woman are reduced by his not
stabbing the child in the back of the skull in order to kill
the child before completing delivery--the risk reduction
occurring because surgical instruments would not be inserted
into the birth canal--the abortionist may simply completely
deliver the child before killing the child. The right to
abortion created in Roe thus appears to encompass, at least
under the logic of Carhart and Farmer, the right to
infanticide.
B. The ``Viability'' Doctrine in the Supreme Court's Abortion
Jurisprudence Has Eroded the Born-Alive Principle and Created
Confusion Regarding the Legal Status of Premature Infants Who
Survive Abortions
The ``viability'' doctrine in the Supreme Court's decisions
in Planned Parenthood v. Casey \19\ and Carhart has also
created confusion regarding the legal status of premature
infants who survive abortions but have little or no chance of
sustained survival. In Casey the Court reaffirmed the right of
a woman to abort her unborn child, and adhered to the notion
that the government's interest in protecting the unborn child
is related to ``viability,'' or the child's capacity for
sustained survival independent of the mother, with or without
medical assistance. The Carhart Court also relied upon the
viability doctrine in striking down Nebraska's partial-birth
abortion ban.
---------------------------------------------------------------------------
\19\ 505 U.S. 833 (1992).
---------------------------------------------------------------------------
The Court's reliance upon the viability concept in the
abortion context appears to have caused some to wrongly
conclude that premature infants who survive abortions are not
legally-protected persons if they have little or no chance of
sustained survival. Indeed, that appears to be the position of
opponents of H.R. 4292. On July 20, 2000, for example, the
National Abortion and Reproductive Rights Action League
(``NARAL'') issued a press release criticizing H.R. 4292
because, in NARAL's view, extending legal personhood to
premature infants who are born alive after surviving abortions
constitutes an ``assault'' on Roe v. Wade.\20\ According to
NARAL, by seeking to provide legal rights to born-alive infants
``at any stage of development,'' including those not yet
considered to have achieved ``viability,'' the proponents of
H.R. 4292 are ``directly contradicting one of Roe's basic
tenets.'' \21\ It will come as a surprise to many that one of
Roe's ``basic tenets'' is that a premature baby who is marked
for abortion, but somehow survives and is born alive, is not a
person that the law may protect.
---------------------------------------------------------------------------
\20\ NARAL Statement: Roe v. Wade Faces Renewed Assault in the
House, Anti-Choice Lawmakers Hold Hearing on So-Called ``Born-Alive
Infants Protection Act, July 20, 2000 (on file with the Subcomm. on the
Constitution of the House Comm. on the Judiciary).
\21\ Id.
---------------------------------------------------------------------------
Rep. Stephanie Tubbs Jones took a similar position in her
testimony on H.R. 4292 before the Subcommittee on the
Constitution. According to Rep. Jones, providing legal
personhood to premature infants who survive abortions ``is an
attempt to do what the U.S. Supreme Court has strictly
forbidden over and over--it unduly restricts a woman's right to
terminate a pregnancy.'' \22\ H.R. 4292 unduly restricts a
woman's right to choose, Rep. Jones contends, by extending
protection to fully born, premature infants in ``direct
contravention of Roe v. Wade and subsequent Supreme Court
rulings.'' \23\
---------------------------------------------------------------------------
\22\ Born-Alive Infants Protection Act: Hearings on H.R. 4292
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong., July 20, 2000 (statement of Rep. Stephanie
Tubbs Jones).
\23\ Id.
---------------------------------------------------------------------------
The question of whether a live birth has occurred does not,
however, depend upon whether an infant is sufficiently
developed for sustained survival. The definition of ``born
alive'' contained in H.R. 4292 was derived from a model
definition of ``live birth'' that was promulgated by the World
Health Organization in 1950 and is, with minor variations,
currently codified in 30 States and the District of
Columbia.\24\ The Illinois statute provides a model of this
definition:
---------------------------------------------------------------------------
\24\ See Alaska Stat. Sec. 18.50.950; Ariz. Rev. Stat. Ann.
Sec. 36-301; 17 Ca. Adc. Sec. 915; Fla. Stat. Ann. Sec. 382.002; Ga.
Code Ann. Sec. 31-10-1; Haw. Rev. Stat. Sec. 338-1; Idaho Code Sec. 39-
241; Ill. Ann. Stat. Ch. 420, para. 535; Kan. Stat. Ann. Sec. 65-2401;
Ky. Rev. Stat. Ann. Sec. 213.011; Me. Rev. Stat. Ann. tit. 22,
Sec. 1595; Md. Code Ann., Health-Gen. Sec. 4-201; Mo. Rev. Stat.
Sec. 193.015; N.J. Stat. Ann. Sec. 26:8-1; N.M. Stat. Ann. Sec. 24-14-
2; N.Y. Pub. Health Law Sec. 4130; N.D. Cent. Code Sec. 23-02.1-01;
Ohio Rev. Code Ann. Sec. 3705.01; Okla. Stat. Ann. tit. 63, Sec. 1-301;
Or. Rev. Stat. Sec. 432.005; R. I. Gen. Laws Sec. 23-3-1; S.D. Codified
Laws Ann. Sec. 34-25-1.1; Tenn. Code Ann. Sec. 68-3-102; Va. Code Ann.
Sec. 32.1-249; W. Va. Code Sec. 16-5-1; Wyo. Stat. Sec. 35-1-401; D.C.
Code Sec. 6-201(9); Minn. R. 4600.0100(Subp. 4); N.C. Admin. Code tit.
15A, r. 19H.0102(5); S.C. Admin. Code 61-19(1)(f); 25 Tex. Admin. Code
Sec. 181.1(16).
Live birth means the complete expulsion or extraction
from its mother of a product of human conception,
irrespective of the duration of pregnancy, which after
such separation breathes or shows any other evidence of
life such as beating of the heart, pulsation of the
umbilical cord, or definite movement of voluntary
muscles, whether or not the umbilical cord has been cut
or the placenta is attached.\25\
---------------------------------------------------------------------------
\25\ Ill. Ann. Stat. ch. 420, para. 535 (emphasis added).
Pennsylvania's statute includes a similar but somewhat broader
definition: ``Live birth means the expulsion or extraction from
its mother of a product of conception, irrespective of the
period of gestation, which shows any evidence of life at any
moment after expulsion or extraction.'' \26\
---------------------------------------------------------------------------
\26\ 35 Pa. Const. Stat. Sec. 450.105.
---------------------------------------------------------------------------
The reason these statutes do not define a live birth as
dependent upon the infant's gestational age is fairly obvious.
Many infants are born alive at 20 to 22 weeks and survive for
hours, even though their lung capacity typically does not
permit sustained survival. Under the prevailing standards of
medical care, such infants are understood to be born-alive
persons and are treated as such, even though they may only live
for a short time. They are, for example, treated humanely,
given comfort care, and issued a death certificate. And an
individual could not escape criminal prosecution for entering a
neonatal intensive care unit and murdering one of these infants
simply because the infant will only survive for a short time.
Many infants are also born-alive at 23 weeks, and currently
have a 39% chance of sustained survival, and at 24 weeks with a
greater than 50% chance of sustained survival, with the odds
improving all of the time. Determining whether any given one of
these children should be treated as a born-alive person, on the
basis of his or her ultimate viability, could only be
accomplished retrospectively, by looking at whether the child
actually survived. The law has avoided this conundrum by
defining a live birth without regard to the gestational age of
the child.
C. Princeton University Bioethicist Peter Singer Advocates Legal
Killing of Disabled or Unhealthy Newborn Infants
The principle that born-alive infants are entitled to the
protection of the law is also being questioned at one of
America's most prestigious universities. In his book Practical
Ethics, Princeton University Bioethicist Peter Singer argues
that parents should have the option to kill disabled or
unhealthy newborn babies for a certain period after birth.
According to Professor Singer, ``a period of 28 days after
birth might be allowed before an infant is accepted as having
the same right to live as others.''
This contention is based on Professor Singer's view that
the life of a newborn baby is ``of no greater value than the
life of a nonhuman animal at a similar level of rationality,
self-consciousness, awareness, capacity to feel, etc.''
According to Professor Singer, ``killing a disabled infant is
not morally equivalent to killing a person. Very often it is
not wrong at all.''
II. Evidence of the Moral and Legal Confusion Regarding the Status of
Live-Born Infants
A. ``Live-Birth'' Abortions
The legal and moral confusion that flows from these
pernicious ideas is well illustrated by disturbing events that
are reported to have occurred at Christ Hospital in Oak Lawn,
Illinois. Two nurses from the hospital's delivery ward, Jill
Stanek and Allison Baker (who is no longer employed by the
hospital), testified before the Subcommittee on the
Constitution that physicians at Christ Hospital have performed
numerous ``induced labor'' or ``live-birth'' abortions, a
procedure in which physicians use drugs to induce premature
labor and deliver unborn children, many of whom are still
alive, and then simply allow those who are born alive to
die.\27\
---------------------------------------------------------------------------
\27\ See Born-Alive Infants Protection Act: Hearings on H.R. 4292
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong., July 20, 2000 (statement of Jill L. Stanek,
R.N.); Born-Alive Infants Protection Act: Hearings on H.R. 4292 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Cong., July 20, 2000 (statement of Allison Baker, R.N., B.S.N.).
---------------------------------------------------------------------------
According to medical experts, this procedure is
appropriately used only in situations in which an unborn child
has a fatal deformity, such as anencephaly or lack of a brain,
and infants with such conditions who are born alive are given
comfort care (including warmth and nutrition) until they die,
which, because of the fatal deformity, is typically within a
day or two of birth. According to the testimony of Mrs. Stanek
and Mrs. Baker, however, physicians at Christ Hospital have
used the procedure to abort healthy infants and infants with
non-fatal deformities such as spina bifida and Down
Syndrome.\28\ Many of these babies have lived for hours after
birth, with no efforts made to determine if any of them could
have survived with appropriate medical assistance.\29\ The
nurses also witnessed hospital staff taking many of these live-
born babies into a ``soiled utility room'' where the babies
would remain until death.\30\ Comfort care, the nurses say, was
not provided consistently.\31\
---------------------------------------------------------------------------
\28\ See Statement of Jill L. Stanek, R.N., supra; Statement of
Allison Baker, R.N., B.S.N., supra.
\29\ See Statement of Jill L. Stanek, R.N., supra; Statement of
Allison Baker, R.N., B.S.N., supra.
\30\ See Statement of Jill L. Stanek, R.N., supra; Statement of
Allison Baker, R.N., B.S.N., supra.
\31\ See Statement of Jill L. Stanek, R.N., supra; Statement of
Allison Baker, R.N., B.S.N., supra.
---------------------------------------------------------------------------
Ms. Stanek testified regarding numerous live-birth
abortions that she alleges have occurred at Christ Hospital.
The first she described as follows:
One night, a nursing co-worker was taking an aborted
Down's Syndrome baby who was born alive to our Soiled
Utility Room because his parents did not want to hold
him, and she did not have time to hold him. I could not
bear the thought of this suffering child dying alone in
a Soiled Utility Room, so I cradled and rocked him for
the 45 minutes that he lived. He was 21 to 22 weeks
old, weighed about \1/2\ pound, and was about 10 inches
long. He was too weak to move very much, expending any
energy he had trying to breathe. Toward the end he was
so quiet that I couldn't tell if he was still alive
unless I held him up to the light to see if his heart
was still beating through his chest wall. After he was
pronounced dead, we folded his little arms across his
chest, wrapped him in a tiny shroud, and carried him to
the hospital morgue where all of our dead patients are
taken.\32\
---------------------------------------------------------------------------
\32\ Statement of Jill L. Stanek, R.N., supra.
Mrs. Stanek testified about another aborted baby who was
thought to have had spina bifida, but was delivered with an
intact spine.\33\ On another occasion, an aborted baby ``was
left to die on the counter of the Soiled Utility Room wrapped
in a disposable towel. This baby was accidentally thrown in the
garbage, and when they later were going through the trash to
find the baby, the baby fell out of the towel and on to the
floor.'' \34\ Mrs. Stanek further testified regarding a live-
birth abortion that was performed on a healthy infant at more
than 23 weeks gestation, a stage of development at which
premature infants have an almost 40% chance of survival.\35\
According to Mrs. Stanek,
---------------------------------------------------------------------------
\33\ Id.
\34\ Id.
\35\ Id.
[t]he baby was born alive. If the mother had wanted
everything done for her baby, there would have been a
neonatologist, pediatric resident, neonatal nurse, and
respiratory therapist present for the delivery, and the
baby would have been taken to our Neonatal Intensive
Care Unit for specialized care. Instead, the only
personnel present for this delivery were an obstetrical
resident and my co-worker. After delivery the baby, who
showed early signs of thriving, was merely wrapped in a
blanket and kept in the Labor & Delivery Department
until she died 2\1/2\ hours later.\36\
---------------------------------------------------------------------------
\36\ Id.
Mrs. Baker testified regarding three live-birth abortions
she witnessed at the hospital. According to Mrs. Baker, she was
informed about the live-birth abortions, described by the
hospital as ``therapeutic abortions,'' when she began working
in the high risk labor and delivery unit at the hospital in
August 1998. She described her first encounter with this
---------------------------------------------------------------------------
procedure as follows:
The first occurred on a day shift. I happened to walk
into a ``soiled utility room'' and saw, lying on the
metal counter, a fetus, naked, exposed and breathing,
moving its arms and legs. The fetus was visibly alive,
and was gasping for breath. I left to find the nurse
who was caring for the patient and this fetus. When I
asked her about the fetus, she said that she was so
busy with the mother that she didn't have time to wrap
and place the fetus in a warmer, and she asked if I
would do that for her. Later I found out that the fetus
was 22 weeks old, and had undergone a therapeutic
abortion because it had been diagnosed with Down's
Syndrome. I did wrap the fetus and place him in a
warmer and for 2\1/2\ hours he maintained a heartbeat,
and then finally expired.\37\
---------------------------------------------------------------------------
\37\ Statement of Allison Baker, R.N., B.S.N., supra.
The second induced labor abortion Mrs. Baker witnessed
involved a 20 week-old fetus with spina bifida who was born
---------------------------------------------------------------------------
alive. According to Mrs. Baker,
[d]uring the time the fetus was alive, the patient kept
asking me when the fetus would die. For an hour and 45
minutes the fetus maintained a heartbeat. The parents
were frustrated, and obviously not prepared for this
long period of time. Since I was the nurse of both the
mother and the fetus, I held the fetus in my arms until
it finally expired.\38\
---------------------------------------------------------------------------
\38\ Id.
The third incident witnessed by Mrs. Baker involved a 16
week-old fetus with Down's Syndrome. ``Again,'' Mrs. Baker
testified, ``I walked into the soiled utility room and the
fetus was fully exposed, lying on the baby scale.'' \39\ Mrs.
Baker then found the nurse who was caring for the mother and
the baby and offered her assistance. ``When I went back into
the soiled utility room,'' Mrs. Baker said, ``the fetus was
moving its arms and legs. I then listened for a heartbeat, and
found that the fetus was still alive. I wrapped the fetus and
in 45 minutes the fetus finally expired.'' \40\
---------------------------------------------------------------------------
\39\ Id.
\40\ Id.
---------------------------------------------------------------------------
When allegations such as these were first made against
Christ Hospital, the hospital claimed that this procedure was
only used ``when doctors determine the fetus has serious
problems, such as lack of a brain, that would prevent long-term
survival.'' \41\ Later, however, the hospital changed its
position, announcing that although it had performed live-birth
abortions on infants with non-fatal birth defects, it was
changing its policy and would henceforth use the procedure to
abort only fatally-deformed infants.\42\
---------------------------------------------------------------------------
\41\ Jeremy Manier, Rare Abortions by Induced Labor Probed by
State, Chicago Tribune, Sept. 29, 1999.
\42\ See Jeremy Manier, Christ Hospital, Network to Allow Fewer
Abortions, Chicago Tribune, Oct. 14, 1999.
---------------------------------------------------------------------------
B. Confusion Regarding the Status of Abortion Survivors
The confusion regarding the status of abortion survivors is
reflected in events that happened last year in Cincinnati,
Ohio. A young woman learned she was pregnant and sought
assistance at the clinic of the abortionist Dr. Martin Haskell,
inventor of one variation of the partial-birth abortion
procedure.\43\ Dr. Haskell performed the first step of the
partial-birth abortion procedure--dilating the woman's cervix--
and she was to return the next day. The next morning the woman
began experiencing severe abdominal pains and reported to the
emergency room of Bethesda North Medical Center in Cincinnati.
While she was being examined, the young woman gave birth to a
baby girl.\44\ The attending physician placed the baby in a
specimen dish--like any other substance that is removed from
the body--to be taken to the lab by a medical technician. When
the technician, Shelly Lowe, saw the baby girl in the dish she
was stunned when she saw the girl gasping for air. ``I don't
think I can do that,'' Ms. Lowe reportedly said. ``This baby is
alive.'' \45\
---------------------------------------------------------------------------
\43\ See Finger-pointing follows Baby Hope, Cincinnati Post, Apr.
22, 1999, at 15A.
\44\ See id.; see also Mona Charen, Baby Hope, Washington Times,
May 17, 1999.
\45\ Mona Charen, Baby Hope, Part 2, Washington Times, May 24,
1999.
---------------------------------------------------------------------------
After doctors concluded that the baby was too premature to
survive (by some estimates she was born at 22 weeks, although
some members of the hospital staff believed she was older), Ms.
Lowe held the baby, whom she named ``Baby Hope,'' wrapping her
in a blanket and singing to her as she stroked her cheeks,
until the child died. Ms. Lowe said: ``I wanted her to feel
that she was wanted. . . . She was a perfectly formed newborn,
entering the world too soon through no choice of her own.''
\46\ Surprisingly, Baby Hope lived for 3 hours, without the
benefit of an incubator or other intensive care, and breathing
room air, but her condition was not reassessed by the
physicians.\47\ And although it is impossible to determine at
this point whether a reassessment would have made any
difference in Baby Hope's ultimate survival, the lack of any
such reassessment, coupled with the attending physician's
initial placement of then-breathing Baby Hope in a specimen
dish, at least raises serious questions as to whether a
similarly-situated infant who was wanted by her mother would
have received the same treatment.
---------------------------------------------------------------------------
\46\ Mona Charen, Baby Hope, Washington Times, May 17, 1999.
\47\ See id.
---------------------------------------------------------------------------
Confusion regarding the legal status of abortion survivors
is not a problem only in the United States. Evidence of this
confusion can be further illustrated by events that occurred in
Professor Peter Singer's native country of Australia. On April
10, 2000, in Sydney, Australia, a Coroners Court heard
testimony regarding a baby who survived an abortion in 1998 and
lived for 80 minutes while hospital staff waited for the baby
to die.\48\ When the midwife nurse called the abortion doctor
(who was not present) to inform him that the baby had survived,
he responded, ``So?'' \49\ The nurse then did what she could to
make the baby comfortable, covering her with a blanket to keep
her warm until her breathing and heartbeat slowed and she
died.\50\
---------------------------------------------------------------------------
\48\ See Australian Baby Lives 80 Minutes After Abortion, Sydney
Morning Herald, Apr. 10, 2000.
\49\ Id.
\50\ See id.
---------------------------------------------------------------------------
The coroner who investigated this incident condemned the
actions of the abortion doctor, stating that `` `[t]he [baby]
having been born alive deserved all the dignity, respect and
value that our society places on human life. . . . The fact
that her birth was unexpected and not the desired outcome of
the [abortion] should not result in her and babies like her
being perceived as anything less than a complete human being.'
'' \51\ Noting that the old, infirm, sick and terminally ill
are all entitled to proper medical and palliative care and
attention, the coroner stated that ``newly-born unwanted and
premature babies should have the same rights. The fact that
[the baby's] death was inevitable should not affect her
entitlement to such care and attention.'' \52\
---------------------------------------------------------------------------
\51\ Id.
\52\ Id.
---------------------------------------------------------------------------
A similar incident occurred in Germany in 1998.\53\ In that
case, an infant survived an abortion attempt at 25 weeks
gestation. The doctors who attempted to abort the baby left it
wrapped in a blanket for 10 hours ``under observation'' but
without any medical assistance. The doctors then consulted with
the parents and decided to provide the baby medical assistance.
The infant survived, but was severely damaged and has had
several operations. The German government brought charges
against the physicians.
---------------------------------------------------------------------------
\53\ See Andrew Gimson, Outrage as baby survives abortion, Daily
Telegraph, London, Jan. 8, 1998.
---------------------------------------------------------------------------
III. The Born-Alive Infants Protection Act
H.R. 4292, the Born-Alive Infants Protection Act of 2000,
was designed to repudiate the pernicious and destructive ideas
that have brought the born-alive rule into question, and to
firmly establish that, for purposes of Federal law, an infant
who is completely expelled or extracted from the mother and who
is alive is, indeed, a person under the law--regardless of
whether or not the child's development is believed to be, or is
in fact, sufficient to permit long-term survival, and
regardless of whether the baby survived an abortion. H.R. 4292
accomplishes this by providing that, for purposes of Federal
law, ``the words `person,' `human being,' `child,' and
`individual,' shall include every infant member of the species
homo sapiens who is born alive at any stage of development.''
The term ``born alive'' is defined as
the complete expulsion or extraction from its mother of
that member, at any stage of development, who after
such expulsion or extraction breathes or has a beating
heart, pulsation of the umbilical cord, or definite
movement of the voluntary muscles, regardless of
whether the umbilical cord has been cut, and regardless
of whether the expulsion or extraction occurs as a
result of natural or induced labor, cesarean section,
or induced abortion.
As stated above, this definition of ``born alive'' was derived
from a model definition of ``live birth'' that has been
adopted, with minor variations, in 30 States and the District
of Columbia.\54\
---------------------------------------------------------------------------
\54\ See discussion, supra, p. 7.
---------------------------------------------------------------------------
H.R. 4292 draws a bright line between the right to
abortion--which the Supreme Court has now said includes the
right to kill partially-born children--and infanticide, or the
killing or criminal neglect of completely born children. The
bill reaffirms that a born-alive infant's legal status under
Federal law does not depend upon the infant's gestational age
or whether the infant's birth occurred as a result of natural
or induced labor, cesarean section, or induced abortion. If,
for example, an infant is born alive at a Federal hospital as a
result of a failed abortion attempt, this bill makes clear that
the attending physicians and other medical professionals should
treat the infant just as they would treat a similarly-situated
infant who was born as a result of natural labor.
H.R. 4292 thus affirms that, as Professor Hadley Arkes of
Amherst College testified before the Subcommittee on the
Constitution, every child who is born alive ``has an intrinsic
dignity, which must in turn be the source of rights of an
intrinsic dignity, which cannot depend then on the interests or
convenience of anyone else.'' \55\ The bill makes clear that a
child's legal status does not depend upon whether anyone
happens to want the child.
---------------------------------------------------------------------------
\55\ Born-Alive Infants Protection Act: Hearings on H.R. 4292
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong., July 20, 2000 (statement of Professor Hadley
Arkes, Amherst College),
---------------------------------------------------------------------------
The protections afforded newborn infants under H.R. 4292
for purposes of Federal law are consistent with the statutory
protections afforded those infants under the laws of the 30
States and the District of Columbia that define a ``live
birth'' in virtually identical terms. Like those laws, H.R.
4292 would not mandate medical treatment where none is
currently indicated. While there is debate about whether or not
to aggressively treat premature infants below a certain birth
weight, this is a dispute about medical efficacy, not regarding
the legal status of the patient. That is, the standard of
medical care applicable in a given situation involving a
premature infant is not determined by asking whether that
infant is a person. Medical authorities who argue that
treatment below a given birth weight is futile are not arguing
that these low-birth weight infants are non-persons, only that
providing treatment in those circumstances is not warranted
under the applicable standard of medical care. H.R. 4292 would
not affect the applicable standard of care, but would only
insure that all born-alive infants--regardless of their age and
regardless of the circumstances of their birth--are treated as
persons for purposes of Federal law.
IV. Congressional Authority to Enact H.R. 4292
H.R. 4292 is exclusively a definitional provision,
identical in structure and function to the immediately
preceding provision of the United States Code. That provision,
1 U.S.C. Sec. 7, defines ``marriage'' and ``spouse'' for the
purpose of construing ``any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative
bureaus of the United States.'' H.R. 4292 defines the words
``person,'' ``human being,'' ``child,'' and ``individual'' for
identical purposes.
H.R. 4292 does not, therefore, articulate any new
substantive rule of law. Thus, as Professor Gerard V. Bradley
of Notre Dame Law School testified before the Subcommittee on
the Constitution, H.R. 4292 ``does not call for an as-yet-
unarticulated constitutional basis for lawmaking.'' \56\ If the
Federal law using the word ``person,'' ``human being,''
``child,'' or ``individual,'' rests upon a proper enumerated
basis, then no additional question about enumerated power is
raised by Congress' clarification of what that term means.\57\
For, if Congress has the power to count ``persons,'' to protect
``persons'' against assault, to grant tax exemptions for all
dependent ``children,'' or to take some other action with
regard to ``human beings'' or ``individuals,'' that power
necessarily implies the authority to provide a definition of
``persons,'' ``children,'' and ``individuals.'' Congress also
has the authority to define these terms under the Necessary and
Proper Clause of Article 1, section 8 of the Constitution.
---------------------------------------------------------------------------
\56\ See Born-Alive Infants Protection Act: Hearings on H.R. 4292
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong., July 20, 2000 (statement of Professor Gerard V.
Bradley, Notre Dame Law School).
\57\ Id.
---------------------------------------------------------------------------
Hearings
The committee's Subcommittee on the Constitution held 1 day
of hearings on H.R. 4292 on July 20, 2000. Testimony was
received from several witnesses: Hadley Arkes, Edward Ney
Professor of Jurisprudence and American Institutions, Amherst
College; Allison Baker, Charlottesville, Virginia; Jill L.
Stanek, Mokena, Illinois; Matthew G. Hile, Ph.D., St. Louis,
Missouri; Gianna Jessen, Franklin, Tennessee; Honorable
Stephanie Tubbs Jones (D-OH); Kenneth Thomas, Legislative
Attorney, American Law Division, Congressional Research
Service, The Library of Congress; Gerard V. Bradley, Professor
of Law, Notre Dame Law School; F. Sessions Cole, M.D.,
Professor of Pediatrics and Cell Biology and Physiology,
Washington University School of Medicine, St. Louis, Missouri;
Watson A. Bowes, Jr., M.D., Professor Emeritus, Department of
Obstetrics and Gynecology, University of North Carolina at
Chapel Hill School of Medicine; and Robert P. George, McCormick
Professor of Jurisprudence, Department of Politics, Princeton
University.
Committee Consideration
On July, 26, 2000, the committee met in open session and
ordered favorably reported the bill H.R. 4292, without
amendment, by a recorded vote of 22 to 1, a quorum being
present.
Vote of the Committee
Motion to report H.R. 4292, the ``Born-Alive Infants
Protection Act of 2000.'' By a rollcall vote of 22 yeas to 1
nay, the motion was agreed to.
ROLLCALL
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... X .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. .............. .............. ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Goodlatte................................................... X .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... .............. .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... .............. .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Rogan....................................................... X .............. ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ X .............. ..............
Mr. Bachus...................................................... X .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... X .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
-----------------------------------------------
Total....................................................... 22 1 ..............
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 4292, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 22, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4292, the Born-
Alive Infants Protection Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lisa Cash
Driskill, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 4292--Born-Alive Infants Protection Act of 2000.
H.R. 4292 would amend the United States Code by expanding
the definition of the words ``person, human being, child, and
individual'' as they are used in any act of the Congress or any
administrative ruling, regulation, or interpretation. Under the
bill, such words would be defined to include every infant born
alive at any stage of development. The bill also would define
the term ``born alive.''
The interests of those who are born alive are recognized
most commonly in the areas of tort law, trust and estate law,
and criminal law. Because the words ``person, human being,
child, and individual'' are used frequently throughout the
United States Code, CBO cannot determine how the new
definitions could be interpreted in all situations. However,
CBO assumes that the bill would have no effect on federal tort
law or trust and estate law. In the area of criminal law, CBO
expects that the circumstances under which the new definitions
could be used to bring lawsuits in federal court are very
limited. Therefore, we estimate that the effect of H.R. 4292 on
the federal budget would be negligible.
Anyone prosecuted and convicted under H.R. 4292 could be
subject to criminal fines. Collections of such fines are
recorded in the budget as governmental receipts (revenues),
which are deposited in the Crime Victims Fund and spent in
subsequent years. Because H.R. 4292 could affect direct
spending and receipts, pay-as-you-go procedures would apply.
CBO expects, however, that any additional receipts and direct
spending would be negligible because it is not likely that the
federal government would pursue many cases under this bill.
Because definition changes in this bill would affect such a
large number of citations in the United States Code, CBO cannot
determine with certainty whether those changes might impose new
enforceable duties on state, local, and tribal governments or
the private sector. CBO has identified no such instances,
however, and believes that it is unlikely that H.R. 4292 would
impose new federal mandates as defined by the Unfunded Mandates
Reform Act.
The CBO staff contact for this estimate is Lisa Cash
Driskill, who can be reached at 226-2860. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clause 18 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title. This section provides that the
title of the act is the Born-Alive Infants Protection Act of
2000.
Section 2. Definition of Born-Alive Infant. This section
inserts into Chapter 1 of title 1 of the United States Code a
new section 8, defining ``person,'' ``human being,'' ``child,''
and ``individual'' as including born-alive infants. Section
8(a) provides that in determining the meaning of any Act of
Congress, or of any ruling, regulation, or interpretation of
the various administrative bureaus and agencies of the United
States, the words ``person,'' ``human being,'' ``child,'' and
``individual,'' shall include every infant member of the
species homo sapiens who is born alive at any stage of
development.
Section 8(b) provides that the term ``born-alive,'' with
respect to any member of the species homo sapiens, means the
complete expulsion or extraction of that member, at any stage
of development, who after such expulsion or extraction breathes
or has a beating heart, pulsation of the umbilical cord, or
definite movement of voluntary muscles, regardless of whether
the umbilical cord has been cut, and regardless of whether the
expulsion or extraction occurs as a result of natural or
induced labor, cesarean section, or induced abortion.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
CHAPTER 1 OF TITLE 1, UNITED STATES CODE
CHAPTER 1--RULES OF CONSTRUCTION
Sec.
1. Words denoting number, gender, etc.
* * * * * * *
8. ``Person'', ``human being'', ``child'', and ``individual'' as
including born-alive infant.
* * * * * * *
Sec. 8. ``Person'', ``human being'', ``child'', and ``individual'' as
including born-alive infant
(a) In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the
words ``person'', ``human being'', ``child'', and
``individual'', shall include every infant member of the
species homo sapiens who is born alive at any stage of
development.
(b) As used in this section, the term ``born alive'', with
respect to a member of the species homo sapiens, means the
complete expulsion or extraction from its mother of that
member, at any stage of development, who after such expulsion
or extraction breathes or has a beating heart, pulsation of the
umbilical cord, or definite movement of voluntary muscles,
regardless of whether the umbilical cord has been cut, and
regardless of whether the expulsion or extraction occurs as a
result of natural or induced labor, cesarean section, or
induced abortion.
Additional Views
While H.R. 4292 was reported favorably out of the Judiciary
Committee, I wish to make clear that support for this bill
hinges on a critical assumption: that H.R. 4292 merely restates
existing law. Because this assumption is based primarily upon
the assertions of the bill's sponsor rather than on the clear
language of the bill itself or supporting legal analysis, I
have expressed three primary concerns with respect to the bill.
First, the bill was rushed through the committee process,
without a subcommittee mark-up and without the benefit of a
thorough assessment of the nature and scope of the bill's
impact on Federal law. This point is especially troublesome in
light of the legislation's breadth. H.R. 4292 is not a bill
narrowly tailored to meet its purported objectives. Indeed,
H.R. 4292 would change, in every Federal law, rule or
regulation, the definition of the terms ``person,'' ``human
being,'' ``child,'' and ``individual'' to include those ``born
alive'' as defined by the bill. Such terms appear in at least
15,000 sections of the United States Code and over 57,000
sections of the Code of Federal Regulations. A comprehensive
analysis of the bill's impact on Federal law, therefore, would
require significantly more time than permitted by the
committee's abbreviated schedule for consideration of the bill.
In spite of some hurried, preliminary analyses, many
implications of H.R. 4292 remain unknown. Consequently, it
seems unwise to proceed so quickly.
Second, H.R. 4292 defines the term ``born alive'' as the
``complete expulsion or extraction from its mother of that
member [of the species homo sapiens], at any stage of
development, who . . . breathes or has a beating heart,
pulsation of the umbilical cord, or a definite movement of
voluntary muscles. . .'' (emphasis added). Because the bill
refers to the ``complete extraction or expulsion from its
mother'' rather than the ``complete extraction or expulsion
from the mother's body,'' it is unclear whether a fetus that
has emerged from the uterus but is still completely or
partially in the vaginal canal would fall within the bill's
ambit. In other words, is it the intent of the bill's sponsors
to confer legal rights of personhood on a fetus that is outside
the uterus, but not completely outside the body? In order to
eliminate this ambiguity and protect the right to abortion, I
offered an amendment during full committee mark-up which would
have clarified that ``born alive'' means the complete
extraction or expulsion from ``the woman's body.'' A colloquy
ensued with Representative Charles Canady (R-FL) who argued
that the amendment was unnecessary because the language of the
bill was ``crystal clear'' in requiring complete physical
separation from the mother's body in order to be born alive.
Satisfied with Mr. Canady's response, the amendment was
withdrawn. It is my understanding, therefore, as explicitly
confirmed by Mr. Canady, the sponsor of H.R. 4292, that a fetus
that has been extracted or expelled from the womb and is still
completely or partially in the vaginal canal is not a ``born
alive'' member of the species homo sapiens under this bill.
Finally, as reflected through testimony and debate at the
subcommittee hearing on H.R. 4292, there is concern that the
bill, if passed, would require medical professionals to provide
treatment that is not mandated under existing and future
applicable standards of care. The majority has assured the
minority, both verbally and through written statements, that
this is not so. H.R. 4292, therefore, should not affect current
and future standards of medical care. Nor should the bill
affect the principle that personal, and often agonizing and
painful, medical decisions regarding care and treatment of
``born-alive'' infants should be left to parents and
consultation with their physicians. According to the majority,
H.R. 4292 will not impose any more stringent obligation, duty,
or standard of care than is otherwise applicable under Federal
or State law.
Jerrold Nadler
Dissenting Views
I voted against H.R. 4292, the ``Born Alive Infant
Protection Act,'' at the July 26, 2000 House Judiciary
Committee markup because this bill has not been studied in a
responsible way before being rushed through the Judiciary
Committee.
According to Congressional Research Service, H.R. 4292
would amend some 15,000 provisions of the U.S. Code and 57,000
provisions of the Code of Federal Regulations.\1\ Both the
Congressional Research Service (CRS) and the Congressional
Budget Office (CBO) reviewed the bill. Neither reached a
definitive conclusion about what the bill would do. The CRS
concluded:
---------------------------------------------------------------------------
\1\ Kenneth Thomas and Jon Shimabukuro, ``The Born Alive Infant
Protection Act of 2000,'' CRS Memorandum, p. 1, fn. 1 (July 18, 2000).
A definitive statutory analysis of the effect of the
proposed act would require a review and evaluation of
the use of the terms ``person,'' ``human being,''
``child,'' and ``individual'' as they appear in all
Federal statutes and in agency rulings, regulations, or
interpretations. A computer search of these terms
reveals that they appear in over 15,000 sections of the
United States Code, and in over 57,000 sections of the
Code of Federal Regulations. Consequently, an
evaluation of the statutory and regulatory impact of
the act is beyond the resources of our office.\2\
---------------------------------------------------------------------------
\2\ Id.
The CBO concluded: ``Because the words `person, human being,
child, and individual' are used frequently throughout the
United States Code, CBO cannot determine how the new
definitions could be interpreted in all situations.'' \3\
---------------------------------------------------------------------------
\3\ Congressional Budget Office, Cost Estimate: H.R. 4292 (August
22, 2000).
---------------------------------------------------------------------------
As I understand the bill's proponents, they intend to
codify and reaffirm, not change, the substantive law. The
language they have chosen to achieve this goal, however,
carries an enormous risk of unintended consequences. As stated
by the CBO: ``[b]ecause definition changes in this bill would
affect such a large number of citations in the United States
Code, CBO cannot determine with certainty whether those changes
might impose new enforceable duties on State, local, and tribal
governments or the private sector.\4\''
---------------------------------------------------------------------------
\4\ Id.
---------------------------------------------------------------------------
These reports certainly do not provide the assurances we
should have before reporting a bill to the House. If we took
our roles as lawmakers more seriously, we would examine this
bill thoroughly to ensure that it serves only the intended
symbolic purpose and does not result in unintended
consequences.
Given the unanswered questions about the impact of H.R.
4292, the prudent course would have been to work the bill
carefully through the committee. While a hearing was held on
July 20, 2000, the fact-finding purpose of that hearing was
obscured when a markup notice was sent prior to the hearing
stating that the bill would be marked up on the following day.
The bill was marked up on July 21, 2000, and immediately placed
on the Full Committee's July 25, 2000 markup calendar. The bill
was then voted out of the committee on July 26, 2000. Over four
straight working days, the bill was rushed through the
subcommittee and the Full Committee, and not one member of the
committee has furnished an analysis of how this bill would work
alongside the 72,000 laws it amends. It is quite apparent that
the Majority considered the political objective much more
important than the legislative or substantive objective.
In the end, H.R. 4292 may be the symbolic bill its
proponents contend that it is, imposing no unintended results.
I am not satisfied that we know enough to draw that conclusion
today. The bill's proponents bear the burden of demonstrating
that the bill will work its symbolic purpose with no unintended
consequences. Because that burden has not been met, I stand on
my vote against this bill.
Melvin L. Watt