U.S. GOVERNMENT PRINTING OFFICE

73–696 PS WASHINGTON : 2001

BORN-ALIVE INFANTS PROTECTION ACT OF 2001

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

H.R. 2175

JULY 12, 2001

Serial No. 32

Printed for the use of the Committee on the Judiciary

(

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For sale by the Superintendent of Documents, U.S. Government Printing Office

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(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

ASA HUTCHINSON, Arkansas

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOE SCARBOROUGH, Florida

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

JOHN CONYERS, JR., Michigan

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel

JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

WILLIAM L. JENKINS, Tennessee

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOHN N. HOSTETTLER, Indiana

MELISSA A. HART, Pennsylvania,

Vice Chair

LAMAR SMITH, Texas

ASA HUTCHINSON, Arkansas

JERROLD NADLER, New York

BARNEY FRANK, Massachusetts

JOHN CONYERS, JR., Michigan

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

BRADLEY S. CLANTON, Chief Counsel

PAUL B. TAYLOR, Counsel

CRYSTAL M. ROBERTS, Counsel

DAVID LACHMANN, Minority Professional Staff Member

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C O N T E N T S

JULY 12, 2001

OPENING STATEMENT

The Honorable Steve Chabot, a Representative in Congress From the State

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress From the State

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3

WITNESSES

Mr. Hadley Arkes, Edward Ney Professor of Jurisprudence and American

Institutions, Amherst College

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 9

Ms. Jill L. Stanek, Mokena, IL

Oral Testimony ..................................................................................................... 18

Prepared Statement ............................................................................................. 21

Mr. Watson A. Bowes, Jr., MD, Professor Emeritus, Department of Obstetrics

and Gynecology, University of North Carolina at Chapel Hill School of

Medicine

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 25

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

The Honorable Steve Chabot, a Representative in Congress From the State

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 2

APPENDIX

Material submitted for the record .......................................................................... 39

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BORN-ALIVE INFANTS PROTECTION ACT OF

2001

THURSDAY, JULY 12, 2001

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 1:43 p.m., in Room

2226, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.

Mr. CHABOT. Okay. The Committee will come to order. I am

Steve Chabot, the Chairman of the Subcommittee on the Constitution of the Judiciary Committee. This is a hearing on H.R. 2175,

the Born-Alive Infants Protection Act. This hearing will be followed, we hope immediately, by a markup on this particular bill.

I want to apologize for not getting started at exactly one o’clock,

but we had what I thought was going to be one vote, and then ultimately ended up being two votes. So—please accept our apology for

starting a little bit late here.

I recognize myself for 5 minutes for the purpose of making an

opening statement.

The purpose of the Born-Alive Infants Protection Act is to protect

infants who are born alive 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 the infant regardless of whether or not the child’s development is sufficient to permit long-term survival and regardless of whether the

baby 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 any unborn child.

This 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

and are 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, heartbeat, or definite movements 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 that well-settled principle into question. For example, in Stenberg v. Carhart, the United States Supreme Court struck down a Nebraska law

2

banning partial-birth abortion, a procedure in which an abortionist

delivers an unborn child’s body until only the head remains inside

the mother, 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 now been extended by the Court to include the violent destruction of partially born children just inches from birth.

By failing to consider the legal significance of the location of an

infant’s body at the moment it is killed during an abortion, the

Court’s ruling opened the door for a future court and lower Federal

courts to conclude that the location of an infant’s body at the moment it is killed during an abortion has no legal significance. In

fact, two members of the majority, Justices Stevens and Ginsburg,

explicitly rejected the significance of an infant’s location in their

concurring opinions, stating that, quote, ‘‘The notion that partialbirth abortion is more akin to infanticide than any other abortion

procedure is simply irrational.’’

If such a legal conclusion were to be accepted, a baby’s entitlement to the protections of the law would become entirely dependent

upon whether the mother intends to give birth; in other words,

whether the baby has been marked for abortion prior to its birth.

In Planned Parenthood of Central New Jersey v. Farmer, the

Third Circuit Court of Appeals explicitly adopted such reasoning,

concluding that it is nonsensical 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. The

Court said 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, quote, ‘‘A

woman seeking an abortion is plainly not seeking to give birth.’’

Unquote.

The Carhart and Farmer rulings have essentially brought our

legal system to the threshold of accepting infanticide itself, making

it necessary to firmly establish the born-live principle in Federal

law.

Under the logic of these rulings, it may ultimately become irrelevant whether that 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.

The Born-Alive Infant 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 completely born children, a distinction that the

Carhart court refuses to recognize.

[The prepared statement of Mr. Chabot follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO

The purpose of this bill is to protect infants who are born alive by recognizing

them as a ‘‘person, human being, child or individual’’ for purposes of federal law.

This recognition would take effect upon birth, regardless of whether or not the

child’s development is sufficient to permit long-term survival and regardless of

whether the baby 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

3

rights applicable to an unborn child. This 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 and are 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, heartbeat, or definite movements 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, in Stenberg v. Carhart, 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

mother, 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 now been extended by the Court to include

the violent destruction of partially-born children just inches from birth.

By failing to consider the legal significance of the location of an infant’s body at

the moment it is killed during an abortion, the Court’s ruling opened the door for

a future Court, and lower federal courts, to conclude that the location of an infant’s

body at the moment it is killed during an abortion has no legal significance. In fact,

two members of the majority, justices Stevens and Ginsburg, explicitly rejected the

significance of an infant’s location in their concurring opinions, stating that ‘‘the notion that [partial-birth abortion] is more akin to infanticide than [any other abortion

procedure] . . . is simply irrational.’’

If such a legal conclusion were to be accepted, a baby’s entitlement to the protections of the law would become entirely dependant upon whether the mother intends

to give birth—in other words, whether the baby has been marked for abortion prior

to its birth.

In Planned Parenthood of Central New Jersey v. Farmer, the Third Circuit Court

of Appeals explicitly adopted such reasoning, concluding that it is ‘‘nonsensical’’ 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. The court

said 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.’’ The

Carhart and Farmer rulings have essentially brought our legal system to the threshold of accepting infanticide itself, making it necessary to firmly establish the ‘‘born

alive’’ principle in federal law.

Under the logic of these rulings it may ultimately become irrelevant whether that

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.

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 completely born children; a

distinction that the Carhart Court refused to recognize.

And I will now recognize the gentleman from New York, Mr.

Nadler, for 5 minutes to make an opening statement.

Mr. NADLER. Thank you, Mr. Chairman.

Today, we consider legislation reaffirming an absolutely established principle which is enshrined in the law of all 50 States that

an infant who is born and 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 was not and is not clear to me now why we need to legislate

that which is obvious and clear in the law, that which most Members of Congress and the general public already assume to be the

law, but if the majority is interested in a belts-and-suspenders approach, sobeit.

4

The same measure just passed 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 junior—as our colleague, the

junior Senator from California, spoke in favor of it.

Let me say here that last year, I thought that the genesis of this

bill was a disingenuous attempt to trick the pro-choice Members of

Congress into voting against it so that we could be labelled as in

favor of infanticide. We saw the motive for the legislative—I think

the whole motive for the legislation was to get people to vote

against it, so we didn’t, and I’m now pleased that the majority has

now made a serious effort to make clear that this bill has nothing

to do with matters related to abortion, at least no longer has anything to do with matters related to abortion, even going so far as

to introduce Subsection (C) further clarifying that point.

Whatever concerns anyone may have had in the past that this

might become a clever way to undermine the rights protected

under Roe v. Wade have I think been addressed and it’s now clear

this has nothing to do with that. 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—I would like to say, by the

way, that the concerns expressed by the Chairman that recent

court rulings about partial-birth abortion—so-called partial-birth

abortion have called into question whether infanticide may be legal

I think are rather farfetched. Infanticide is illegal under the laws

of every State in the Union and remain so with or without this bill.

I would like to address the concern, which is the only legitimate

concern I’ve had about—I’ve heard about this bill, a concern expressed by our Republican colleague, the gentlewoman from Connecticut, Nancy Johnson, who has annunciated this concern most

eloquently; that is, that the standard of care employed by

neonatologists when faced with a non-viable newborn or a clearly

critically ill or massively deformed newborn may be affected by this

bill.

These are difficult medical issues and 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, and I now quote from the

Committee report, 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.’’ End quote.

I do not want to trivialize the concerns regarding this bill held

by neonatologists, but I assume and hope to have the assurance of

5

the Chair that the intent of this legislation has not changed, that

Congress is not attempting to substitute congressional medical

judgment for the judgment of doctors on the scene or interfering

with the painful decisions that families must make under the most

difficult and tragic of circumstances. We must respect families and

not have the big hand of Government make their worst moments

even more unbearable.

Finally, I wanted to note that this hearing—so in summary on

that, I think that the report language of the last Congress, which

I hope we’ll put in again in this Congress, makes clear that the

concerns that this affects—might affect the standard of care owed

to critically ill newborns or non-viable newborns is not affected by

this bill. That’s not the intention of this bill. The law recognizes

such newborns as people and the question is what is the efficacy

of medical care, not what is the—whether they’re legal. I hope we

will reaffirm that determination so that we can satisfy the concern

of Ms. Johnson and some—I was about to say some other

neonatologists; she’s not, of course; she’s a Member of Congress— and of neonatologists.

Finally, I want to note that this hearing is unfortunately taking

place at the same time that the leadership of the House has scheduled the campaign finance reform debate on the floor, which, unlike

this bill, is very controversial and concerns the future of our democratic institutions. I may not be able to be present for the entire

proceeding because I do want to—have to participate in the campaign reform discussions, but I want to assure everyone here that

I remain very involved with this legislation and that I hope to work

with the Chairman to ensure that it is not sidetracked by fringe

agendas and that it remains very clear what the purpose of this

bill is, that it has nothing to do either with hobbling neonatology

judgments or with the abortion debate.

I do not anticipate any amendments, and with the Chairman’s

agreement that we are in accord, I do not see any need to particularly drag out the process.

Before we proceed, it has come to my attention that some of our

colleagues and other interested parties may wish to submit comments and other materials for the record. I ask unanimous consent

that all Members be permitted to submit additional statements and

other materials for the record.

Mr. CHABOT. Without objection.

Mr. NADLER. Thank you, Mr. Chairman.

Mr. CHABOT. Thank you.

I would now recognize the gentleman from Indiana for the purpose of making an opening statement. And before he does, could I

ask him to yield for just a moment?

Mr. HOSTETTLER. I yield to the Chairman.

Mr. CHABOT. I thank the gentleman for yielding.

Just—I would just like to note, the gentleman from New York

mentioned about there is no question that infanticide is a crime in

this country, but I would just note that the former Senator from

his own State of New York, in describing the horrible procedure of

partial-birth abortion equated that with in essence infanticide.

That was his opinion and I agree with him on that particular respect.

6

So depending on what one’s—what one thinks about partial-birth

abortion, in essence the U.S. Supreme Court feels that that form

of infanticide is still the law of this land, and many of us think that

that ought to be changed.

Mr. NADLER. Would the gentleman yield?

Mr. CHABOT. It’s the gentleman—I’ll yield back to the gentleman

from Indiana.

Mr. HOSTETTLER. I yield to the gentleman.

Mr. NADLER. Thank you.

First of all, let me thank the gentleman—the Chairman for waiting for my coming back from the vote. But second of all, let me simply comment. We’re not engaged in a debate on so-called partialbirth abortion. The Supreme Court has said that the various laws

that most States—some States have passed dealing with what I

might call—with various forms of abortion which have been given

the title of late-term abortion, that those laws are invalid. Some

people may consider that infanticide. It is a different situation than

an infant that has been born. There is no State in this Union

where there is any question about the legal status of an infant that

has been born, that is separated from the mother and that is alive.

In any State of the Union, that baby is a person, it’s considered a

human being and the normal statutes of murder and everything

else apply.

This bill I think is unnecessary, but, except with the possibility

of that problem with neonatology, also harmless because it simply

restates existing law.

What the law ought to be with respect to so-called partial-birth

abortion is a completely separate debate. We’ve had that many

times. There’s no point going through that again. If anybody wants

to hear it, they can go to the Library of Congress and hear the

tape. But it is a separate debate and I don’t see any reason to get

involved with that in the discussion of this bill.

I thank the Chairman—I thank the gentleman. I yield back.

Mr. HOSTETTLER. I yield back, Mr. Chairman.

Mr. CHABOT. Okay. Thank you.

The gentleman from Virginia, Mr. Scott, is recognized if he would

like to make an opening statement.

Mr. SCOTT. No statement.

Mr. CHABOT. Okay. Thank you very much.

Okay. We will at this time move to the—he just yielded back.

Oh, I’m sorry. Ms. Hart, I apologize. Didn’t even see you coming.

The gentlelady from Pennsylvania, and please accept my apology

for not recognizing you there. The gentlelady is recognized for an

opening.

Ms. HART. That’s okay, Mr. Chairman. I actually had no intention of making an opening statement. Thank you for the offer and

I yield back. [Laughter.]

Mr. CHABOT. Okay. Well, we thank the panel.

At this time, we will ask the witnesses to please come forward

and take their places, and we’ll have an introduction of them.

I want to thank them for coming today, and we will hear from

Professor Hadley Arkes, the Edward Ney Professor of Jurisdiction

and American Institution at Amherst College. Professor Arkes has

been teaching at Amherst for 34 years and has also visited on leave

7

from Amherst at the Ethics and Public Policy Center, the Brookings Institution, the Woodrow Wilson Center at the Smithsonian

Institution, and Georgetown University.

Professor Arkes has written several books and numerous articles

on political philosophy, public policy and constitutional law, and we

welcome you here this afternoon, Professor.

Our second witness will be Jill L. Stanek of—am I pronouncing

this right?

Ms. STANEK. Yes.

Mr. CHABOT. Is it Mokena?

Ms. STANEK. Yes.

Mr. CHABOT. Mokena, Illinois.

Ms. Stanek is a registered nurse and will also be sharing her experiences as a nurse in the delivery ward of Christ Hospital in Oak

Lawn, Illinois, and we again welcome you very much and thank

you for being here today.

Our last witness will be Dr. Watson A. Bowes, Jr., M.D., Professor Emeritus at the University of North Carolina at Chapel Hill

School of Medicine, where he also served as a full professor in the

Department of Obstetrics and Gynecology from 1982 to 1999.

Before joining the faculty of North Carolina, Dr. Bowes was a

member of the full-time faculty in the Department of Obstetrics

and Gynecology at the University of Colorado for 14 years.

Dr. Bowes’ major professional interests include high-risk obstetrics, pre-term birth, and all aspects of labor and delivery. From

1995 to 1999, he served on the Committee on Ethics of the American College of Obstetricians and Gynecologists, and was the last— and for the last 2 years of that time Chairman of the Committee.

Dr. Bowes received his medical degree from the University of

Colorado in 1955.

Thank you all for being here this afternoon. I would ask that you

please try to summarize your testimony if possible within 5 minutes or less. We have a light system there which you’ll notice. The

yellow light will come on when there’s about a minute to go, and

if you wouldn’t mind wrapping up by the time a red light comes

on.

Without objection, your written statements will be made a part

of the permanent record. And again, we welcome you, Professor

Arkes, for your testimony.

STATEMENT OF HADLEY ARKES, EDWARD NEY PROFESSOR OF

JURISPRUDENCE AND AMERICAN INSTITUTIONS, AMHERST

COLLEGE

Mr. ARKES. Thank you, Chairman Chabot, Members of the Committee. My name is Hadley Arkes, I am the Ney Professor of American Institutions at Amherst where, as the Chairman said, I taught

for the past 35 years. I have an extended statement that will be

made available in the record.

Mr. CHABOT. Without objection.

Mr. ARKES. Yes. I am here today in support of H.R. 2175, the

Born-Alive Infants Protection Act introduced by Chairman Chabot.

I would say of this act what I said of the earlier version last year,

that this measure introduced by Chairman Chabot offers the

gentlest and most modest first step of all in engaging the question

8

of abortion. It’s a modest move, but it also runs to the root and offers the best chance of drawing all sides into a conversation, because even people who call themselves pro-choice think that abortions may rightly be restricted under some circumstances, and we

ask why not begin here at the simplest level with a child who survives the abortion. No one is quibbling over whether we’re dealing

with a human being and the pregnancy has ended. We’re not impairing rights of abortion.

Yet, even though this would seem to be the simplest case, it’s no

longer so easy for people to explain the grounds on which they

would protect that child born alive. G.K. Chesterton once remarked

that if we asked the modern man to explain what is wrong with

the practice of cannibalism, the modern man is more likely to respond with a prejudice: We just don’t do that here. The medieval

schoolman could give you a reason. If we ask people why do we protect the child born alive, the answer isn’t so clear any longer. We

can’t simply say, ‘‘Well, that’s what the laws have always done,’’ because that answer could have been tendered about why we protect

the unborn child up until January 22nd, 1973. And that is why we

have sought to add those findings to the bill.

We would suggest that it really would be incoherent for people

to vote for this bill unless they imply that that child has a claim

to the protection of the law that doesn’t pivot on the question of

whether anyone wants her. If that’s wrong, we just invite people

to say, what reasons they would put in its place? But if that’s the

case, we seem to imply that the child has an intrinsic dignity that

doesn’t—that can’t be contingent, then, on her location or whether

she serves the interest of other people.

Now, this understanding of starting in the gentlest way and

planting premises in the law has been the understanding that has

enveloped this scheme from the beginning, since I first wrote it

about 13 years ago for the debating kit of the first George Bush.

It’s never been a matter of concealment; it’s been proclaimed openly

in print persistently, for our hope has been to draw the other side

into a conversation reflecting even the sentiments of people who

call themselves pro-choice. Our proposal has been to move step by

step. And we fully recognize that if we don’t persuade people on the

other side, the movement stops.

But our consolation has been this, that from the volume of 1.3

million abortions performed every year, we might hold back and

save a handful of lives, and what’s to be disdained in that?

The real problem for our friends on the other side, I think, is in

explaining how they could vote for this measure while they reject

all of its premises. The matter has been complicated over the past

year—let me remind you where it began, with that dictum of Judge

Clement Haynsworth in Floyd v. Anders in 1977 when a child had

survived an abortion for 20 days, and a surgery. And when the

question was put, were we obliged to protect the life of that child,

the answer tendered by Judge Haynsworth was no, that is not a

child protected by the law; that is a fetus marked for termination.

In other words, the right to an abortion is the right to an effective

abortion or a dead child.

This problem has been complicated over the past year by the decision in the Stenberg case that Chairman Chabot alluded to. In

9

that case, Court essentially told us that we couldn’t protect the life

of a child at the point of birth. And, as the Chairman rightly referred to, Judge Barry’s opinion in the Farmer case just 6 days

after we held the hearing last year is an example of kind of postmodern jurisprudence where Judge Barry said a woman seeking an

abortion is plainly not seeking to give birth. In other words, there

are no objective facts; a woman has decided on an abortion and

therefore there is no birth, there is nothing there to be born. I

would suggest to my new friend, Congressman Nadler, that that is

the thing that complicates the situation and makes it different

from all the laws in place in other States.

With this legislation, the Congress could put up a firm barrier

to infanticide by making it clear that we are rejecting decisively the

claim that the right to an abortion is the right to an effective abortion or a dead child.

Our friends on the other side have muted their opposition I think

in order not to draw more attention to the bill. But even so, they

will have backed into a state of collaboration with us because they

will have helped in passing this bill and confirm this momentous

point: that the Congress does, indeed, have the authority to legislate a limit to abortion.

We could take the occasion to teach again some axioms of our

constitution often forgotten. If the Supreme Court can articulate

new rights, say, under the fourteenth amendment, in civil rights,

or a right to abortion, the legislative branch must be capable of vindicating the same rights and in filling them out, marking their limits.

The one thing that should be untenable under the constitution is

that the Court can articulate new rights and then assign to itself

a monopoly of the legislative power in defining those rights.

Congressman Watt—to move to my conclusion, Congressman

Watt raised the question with me last year about making changes

in the meaning of persons when there are several thousand references. I address that question in my extended testimony, and I

would address it also in the discussion. But may I say in closing

that the ground on which we take this simplest of measures will

clarify our understanding of the human person as the bearer of

rights. If we can’t draw the line on infanticide, we must wonder:

what kind of a people have we become?

This is the simplest of steps to make, and to take a line from

Lincoln, may the vast future not lament our having failed to take

it now.

[The prepared statement of Mr. Arkes follows:]

PREPARED STATEMENT OF HADLEY ARKES

Chairman Chabot, Members of the Committee:

My name is Hadley Arkes. I am currently the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. I’ve taught at Amherst since

1966, with the exception of several years in which I have been in Washington on

leave and visiting at places like the Brookings Institution and the Woodrow Wilson

Center at the Smithsonian Institution. My main interests as a writer and a teacher

have been focussed on political philosophy, public policy, and constitutional law. I

have written, in that vein, several books, published by Princeton University Press,

including The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). I have had a strong

interest in the so-called ‘‘life issues,’’ of abortion and euthanasia, but those interests

10

1See ‘‘Abortion and Moral Beliefs: A Survey of American Opinion,’’ Washington, D.C., February 28, 1991, p. 38. The study was conducted in the field by the Gallup organization, and

commissioned by Americans United for Life, a pro-life group. But the survey was designed by

Profs. James Davis Hunter (University of Virginia), Carl Bowman (Bridgewater College), Robert

Wuthnow (Princeton). And more recently, see CNN/USA Today/Gallup poll: April 30-May 2,

1999.

spring from the central concern in my work, which involves the moral ground on

which the laws would have to find their justification.

I had the privilege of testifying before this committee last year on this same bill,

which passed the House by a vote of 380–15. I would say now again, with renewed

conviction, that the bill introduced by Congressman Chabot, HR 2175, the ‘‘BornAlive Infants Protection Act’’ offers the most modest and the gentlest step that is

imaginable in dealing with the question of abortion; and at the same time it is the

approach that goes most deeply to the root of things. That combination, of the

gentlest measure, and the measure running deepest, offers the best chance we have

seen, over the past 28 years, to draw all sides into a conversation, and achieve the

kind of settlement of this issue in our politics that can only be achieved by the political branches.

The refrain has been heard, at every turn, that abortion is one of the most emotional and divisive issues in our politics. And yet, there has been, for years, a remarkable measure of consensus in this country on abortion, a consensus that draws

in Democrats as well as Republicans, pro-choicers as well as pro-lifers. The surveys

show that even people who call themselves ‘‘pro-choice’’ do not think that all abortions should be permitted. Indeed, they have expressed a willingness to restrict,

through the law, a large number of abortions that are now permitted in the law.

But that consensus has not been able to manifest itself in our laws, because the

opinions of the public have not been allowed to shape the laws that the courts will

permit. At the same time, I’ve made the argument over the years that our problems

here would not be solved even if the elves could come in the middle of the night

and remove Roe v. Wade from the records of our law. Even if that decision were

overruled overnight, the distemper and rancor in our political life would not be removed. For many people would feel themselves dispossessed of something they have

been encouraged to regard by now as one of their first freedoms under the Constitution.

Evidently, we would need a conversation before we could begin to legislate on this

question. But what makes that conversation possible is the fact that there has been,

as I say, a surprising degree of consensus that has not been allowed to manifest

itself on this matter of abortion. The news that took years finally to break through

to the American public is that the laws on abortion in this country, fashioned by

the courts, permit abortion for any reason at all, through all stages of the pregnancy—and even, as we have seen, at the time of a live birth, with the partial-birth

abortion. But the surveys have shown for years that only about 22–27 per cent of

the public supports this policy of abortion on demand, for any reason, at any time.

Even many people who call themselves pro-choice do not think that abortions should

be performed in the late stages of pregnancy, and for less than weighty reasons.

People may support a right to abortion under some circumstances (most notably,

when the life of the mother is endangered), but many of them still hold that a

human life should not be taken for the sake of removing financial strain in the family, removing barriers to the career of a woman, or serving the convenience of the

parents.1 Most people do not think that abortions should be performed because the

child is likely to be deaf or blind, and the opposition to abortion for these reasons

is often quite independent of the age of the unborn child. My own surmise here is

that most people think it would be wrong to take the life of any person because he

happens to be deaf or blind. And if they think this kind of killing would be wrong

at any age of the victim, they may conclude that the principle would be indifferent,

in the same way, to the age of the child in the womb.

I could go on, but these points have been documented well by now in the public

surveys. And yet, this constellation of opinion, rather stable over 25 years, has had

no significant impact on the laws on abortion, shaped and sustained by the courts.

Congressman Chabot’s bill offers the chance finally to let that opinion of the public

manifest itself in our laws. It does that, also, in the gentlest and most powerful way

by beginning the conversation at the place that should command the most overwhelming consensus across our political divisions: the place where we act simply to

preserve the life of the child born alive, the child who survives an abortion. That

moment marks the earliest possible time, associated with an abortion, when the interests of the pregnant woman can be separated entirely from the interests of the

child. Even if Roe v. Wade articulated an unqualified right on the part of a woman

11

2 440 F. Supp. 535, at 539 (1977).

3 462 U.S. 476, at 485, n. 7 (1983).

4One lawyer also recalls, in this vein, that the Supreme Court actually reversed the holding

in Floyd v. Anders, or rather sent the case back for a reconsideration. But in an opinion per

curiam? the Supreme Court sent the case back on the ground that ‘‘the District Court may have

reached [its] conclusion on the basis of an erroneous concept of ’viability,’ which refers to potential, rather than actual, survival of the fetus outside the womb.’’ In all strictness, none of these

comments, or moves, marks an explicit rejection of the claim that the right to abortion entails

the right to an ‘‘effective abortion.’’

to end her pregnancy, the pregnancy would now be over. No right to end the pregnancy would require at this moment the death of the child.

And of course no one, at that moment, claims to be suffering any doubt that we

are dealing with a human being—as though the offspring of homo sapiens could

have been anything less than human at any phase in its life. This is the first moment then, under our current law, when we should be able to declare, with unchecked conviction, that the law may extend its protections over that child. Or to

put it more precisely, that is a moment in which it could be said for that child engaged in an abortion what could be said for any other child, or person, in the country: namely, that the claim of the child to the protections of the law could not possibly pivot on the question of whether anyone happens to ‘‘want’’ her.

We would be in a condition truly miserable if we could not count on certain natural human sympathies at work to protect the child, and there seems to be a normal

tendency on the part of parents and hospitals to supply that care to the child who

surprises everyone by surviving the abortion. And yet, the law frequently comes into

play precisely because parents do not always have this inclination to protect their

children. As we have ample reason by now to know, some parents may be inclined

to abuse or even kill their born children. In the case of abortion, the matter is complicated for us by the fact that the very logic of ‘‘abortion rights’’ seems to create

a momentum in principle to let the child die. Jill Stanek, who is joining us today

in this hearing, offers a report from a respectable hospitable in our own time where

that logic has been allowed to play itself out in real cases. She reports on the socalled ‘‘live birth’’ abortions, where children are delivered and simply left unattended, to die. I take it as a blessing that we are still capable of reacting with shock

when these cases spring up, but they should have ceased long ago to have caused

surprise. For the very logic that attends the ‘‘right to abortion’’ prevents that right

from being cabined, or confined, to the child in the womb. That logic must move outside the womb if the child happens to survive, and we ought to take account here

of those decisions, rendered in the courts, that have now made this point chillingly

clear to us. In a notable case from South Carolina in 1977, Judge Clement

Haynsworth confronted the situation of a child marked for abortion, a child of 25

weeks gestation. The child had survived the abortion, undergone one surgery, and

lived for 20 days before he died.2 The question had been posed as to whether there

had been an obligation to preserve the life of that child. And the answer, tendered

by Haynsworth, was no. After all, the mother had decided on an abortion, and therefore, as Haynsworth said, ‘‘the fetus in this case was not a person whose life state

law could protect.’’ (Floyd v. Anders, 440 F. Supp. 535, at 539.) The right exercised

by the mother could not be frustrated, or negated, by the accident that the child

happened to live. Or to put it more baldly, the right to an abortion must entail nothing less than the right to an ‘‘effective abortion,’’ or a dead child.

Several years later, in Planned Parenthood v. Ashcroft (1983), Justice Powell

noted, in a footnote, a doctor who had made that argument quite explicitly: that the

right to an abortion meant an effective abortion or a dead child. Justice Powell pronounced that opinion ‘‘remarkable.’’ 3 From that comment, offered in passing in a

footnote, even some pro-life lawyers have drawn the inference that the Supreme

Court has rejected that argument.4 But as any lawyer should know, to state that

this claim is ‘‘remarkable’’ is not exactly the same as pronouncing it ‘‘wrong,’’ and

still less is it to explain the grounds of its wrongness.

And now, just last summer, only a few days after this Committee had met to consider the Born-Alive Infants Protection Act, a federal appellate court offered the

most sobering confirmation that Haynsworth’s judgment was not at all an aberration in the law. A panel of three judges in the Third Circuit struck down New Jersey’s version of a law on partial-birth. That move was expected in the wake of the

Supreme Court’s decision a month earlier, in Stenberg v. Carhart. But Judge Barry,

writing for the panel, gave the decision and added twist: With language rather colored, she expressed her contempt for the effort to draw a line between the child in

the womb and the child at the point of birth. That distinction has been known to

common sense for millennia, but the application of that distinction in these case,

12

5Slip opinion, Section I B.

she thought, involved ‘‘semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion’’:

the Legislature would have us accept, and the public believe, that during a

‘‘partial-birth abortion’’ the fetus is in the process of being ‘‘born’’ at the time

of its demise. It is not. A woman seeking an abortion is plainly not seeking to

give birth. (Planned Parenthood v. Farmer, 220 F.3d 127, at 143 [July, 2000])

If there was ever a decision that embodied the very vices it was decrying, this

must surely be it, for the argument here now was that it was all, in the end, a matter of perceptions, of ‘‘semantics’’ and ‘‘line-drawing’’: There were no objective facts—

no birth, no ‘‘child’’ being killed at the point of birth, because the mother, you see,

had elected an abortion. Once she had made that choice, there was no child to be

killed, no birth to take place. For as Judge Barry said, the pregnant woman was

‘‘plainly not seeking to give birth.’’ This decision must mark the emergence of a kind

of ‘‘postmodern’’ jurisprudence, where theories ever more imaginative simply displace objective facts or recast them to mean something else. But it also confirms

what even many pro-life lawyers had refused to believe: Judge Haynsworth’s opinion

in Floyd v. Anders was not an anomaly or aberration; it expressed the understanding that had now become the operational doctrine among many federal judges.

At the same time, that understanding was merging in the most fearful way with

the decision last year in Stenberg v. Carhart, where the Court began to lay the path,

and prepare the public mind, for a certain blurring of the boundaries as abortion

spills over into infanticide. In his opinion for the Court, Justice Breyer argued that

the partial-birth abortion (Dilation and Extraction [D&X], as grisly as it is, could

still be reckoned as safer for the pregnant woman than the more familiar method

of dismembering the child in the womb. As Breyer explained:

The use of instruments within the uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create similar dangers. and fetal tissue accidently left behind can cause infection and various other complications.5

Is the implication not obvious? The avoidance of the usual method of abortion now

warrants killing a child with 70 per cent of the body dangling out of the birth canal.

On the same premises, would it not be even safer to deliver the child whole and

simply let it die? For the doctor could then wholly avoid the insertion of instruments

into the uterus or the dismembering that would allow fetal parts to be left behind,

where they could be the cause of infection. With these steps, the Court has brought

us to the threshold of outright infanticide, and it takes but the shortest step to cross

that threshold. One must wonder then whether the majority in Stenberg v. Carhart

is preparing us for a holding even more advanced and astounding. But the point

is that it will have ceased to be astounding if we offer no response and permit no

line to be drawn finally at infanticide.

To our friends then who say that this bill is not needed, we would have to say:

Look about you, and seen plainly what is there. People who share your position

think there is not the slightest inconsistency in claiming that there is a right to a

dead child, and that the child who survives the abortion has no claim to the protection of the law. The people who make this argument, unashamedly, think that it

is not only consistent, but virtually entailed, or made necessary, by the logic of

‘‘abortion rights.’’ As you look about you in this country, can we not see, in fact, a

notable drift in the same direction, with hospitals such as Christ Hospital in

Oaklawn, Illinois, or with the appointment of Prof. Peter Singer to Princeton University. That a leading university would appoint to a prestigious chair an outright

defender of infanticide is but one sign in a drift of some parts of liberal opinion,

to be far more accepting of infanticide, or at least to break down our lingering prejudices against the killing of infants. In his testimony to the Committee last year, Professor Robert George, the McCormick Professor at Princeton, noted that the appointment of Mr. Singer at Princeton was not an isolated, curious instance. It was part,

rather, of a trend in evidence in other parts of the academy to make the public more

suggestible to the notion of infanticide as a legitimate thing. The people who arranged the appointment of Professor Singer to a chair at Princeton were well aware

of his views; indeed those views formed the main part of the attraction. His elevation was, for them, a means of making a dramatic point in public. And the point

was: that we should recede from our adamant opposition to infanticide; that we

should treat that aversion, not as commitment anchored in principle, but as a social

13

6See ‘‘Abortion Babies ’Should be Left to Die,’ by Angella Johnson, African New Service,

March 17, 1997. One female doctor declared that the directive was ‘‘inhuman and against all

my principles.’’ Other reports suggested that as many as 50 per cent of the nurses and ‘‘health

workers’’ in the country would refuse to comply.

prejudice, and like all prejudices, subject to erosion with the advent of new and better reasons.

In the meantime, the evidence from abroad already gives warning as to how much

that erosion is underway, even in the camp of people noted for their expansive social

sympathies. Over the last few years, we have seen a controversy in Australia over

the treatment of children who survive abortions, and we have seen the most jolting

statement on this matter put out in South Africa by the Department of Health, the

agency that oversees the practice of medicine in that country. In 1997, the Department put out new guidelines, instructing doctors and nurses that ‘‘if an infant is

born who gasps for breath, it is advised that the foetus does not receive any resuscitation measures.’’ 6 In Australia, in 1999, a controversy was ignited when doctors,

and certain agencies, actually registered their opposition when an agency of the government advised that babies who survive abortions should be given medical care.

Mr. Gab Kovacs, the chairman of Family Planning Australia, insisted that babies

born at an early gestational age had no realistic chance of survival, and they should

be left to succumb. Those are civilized countries, with legal systems based on the

British model. But what seems to be at work in both places is a vibrant strand of

opinion, holding that the logic of abortion rights entails that right to an ‘‘effective

abortion’’ or a dead child.

This is a problem, then, for the liberal contingent in our politics. The new acceptance of infanticide is being absorbed now in the body of their doctrines and their

commitments as a political party. If they think that the refusal of care to the child

who survives the abortion is, as we say, ‘‘over the top,’’ then it has become a matter

of high urgency for them finally to say that—and to do something now, both modest

and emphatic, to draw that line.

Of course, we are likely to hear the argument that a law is not really needed here:

the cases are mercifully few, and the dominant inclination among nurses is to nurse,

to take care of newborn infants. And yet, as any philosopher or social scientist

would know, we can draw no inferences about the understandings that are animating people when we are told that ‘‘the dominant practice, among parents, doctors, and hospitals, is to preserve the life of a child who survives an abortion.’’ The

fact that they do this, or do it most of the time, does not reveal anything to us about

the grounds on which they are acting, or the principles that actually govern their

actions. That is the question posed in this simple move by Congressman Chabot:

The bill gives us the chance to fix in the law the principle that actually protects

the child. And if that is not in fact the principle that explains the motivations of

people on all sides, then that is something quite important for all of us to learn.

For those of us who have advocated this bill, the principle would run, as I have

suggested, in this way: We think that the inclination to protect the child with the

law must imply that the child has a claim to the protection of the law that cannot

pivot on the question of whether anyone ‘‘wants’’ her. In that case, we would imply

that the child 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. When parents commit infanticide with a child two or three years old,

we no longer ask whether the child was straining the parents, or whether the child

was unwanted. If we understand that we are dealing with a human being, reasons

of convenience and self-interest become radically inadequate in supplying a ‘‘justification’’ for the killing of the child. We would think that the same understanding

must come into place for the child who survives the abortion. Now if such a principle cannot be invoked on behalf of that child—if our friends on the other side of

the issue of abortion would protect the child but not share these premises of ours—

then we would earnestly invite them to explain the principle they would put in its

place. If we haven’t stated here the reasons that we cast over the child the protections of the law, then what would those reasons be?

We had sought to array those reasons in the form of ‘‘findings’’ attached to this

bill. Justice Frankfurter once lamented the loss of those preambles attached to legislation, for those preambles would make explicit the premises behind the bill, and

along with that, the rationale and the purpose of the legislation. This modest bill

works mainly by planting premises in the law, and I rather regret that the Committee decided to delete the rather impressive chain of reasoning that the staff

brought forth as the findings that explain and justify this bill. Nevertheless, those

premises are still there; we can still state them, as I have stated them here, and

we can make the point that they provide the only coherent grounds for voting this

14

bill in the first place. We can earnestly ask our friends on the other side to correct

them, or amend them, if they think we have it wrong. Let us suppose, for example,

that someone says, ‘‘I would protect the child because the child elicits in me a sense

of sympathy.’’ But if that were the ground, the explanation has to do more with ourselves, with our feelings, and with our sense of what is pleasing or satisfying to us,

or agreeable to our own interests. By implication, of course, there would be no obligation to protect the child when that course of action did not serve our interests

or convenience.

My own sense is that people on either side of the controversy over abortion would

not be satisfied with that kind of rationale, and that they would see instantly that

there is something deeply wrong in it. But if that is the case, does it not become

clear, by implication, as to what we must say instead?: Must we not be moved to

say that there is something of an intrinsic dignity in the child, or any other human

being, something that compels our respect, quite apart from anything in our selfinterest? If that cannot be said for the child, newborn, at these first moments, then

what can be said for any of the rest of us at any other time, for any other right?

If we cannot speak those words, we would seem to imply that none of us has a claim

to be respected, or a claim to be the bearers of rights, unless our presence, or our

rights, suit the interests of those around us. What would even a ‘‘right to abortion’’

mean under those circumstances? Would it not be then a ‘‘right’’ that depends on

the sufferance of others—a right that can be abridged or removed when it no longer

suits the interests of a majority, or of those who exercise power?

Frankly, I don’t see how we can refuse to protect the child at this point without

producing a revolution in our law and deciding that, from this day forward, we will

treat as a nullity the laws on infanticide. And of course we cannot say, in an offhand

way, that infanticide has ceased to be a big deal without backing into the claim that

homicide itself has ceased to be a big deal. People may try to finesse the matter

by saying that we should wait perhaps a few days, or a week or two, before we extend the protection of the law to the newborn. But that would simply be a thinly

disguised way of saying that we will wait in protecting the child until we are clear

that the child is acceptable to someone, that it is in someone’s interest to keep or

‘‘want’’ that child.

If I am right, and there is no way of getting around this matter, then Rep.

Chabot’s modest bill does the service of compelling us to face this elementary question about the human person, the question that stands at the heart of the thing.

I would not conceal my own hope or expectation here: Once this first premise is

planted, it must project itself back into the situation of the child even while still

in the womb. After all, if we come to the understanding that the child has an intrinsic significance as a human being; that her claim to be protected by the law does

not pivot on whether anyone wants her; then how could that intrinsic significance

be affected by anything as contingent or ‘‘extrinsic’’ as whether she is only two days

or two weeks before birth, or whether she is attached by an umbilical cord to her

natural mother? How could it hinge on the question of just where she happens for

the moment to be lodged or where she is receiving her nourishment? Nothing in her

intrinsic significance could be affected by things of this kind when she leaves the

womb. By the same logic, none of these attributes could have any moral bearing on

the standing of the child to receive the protections of the law when she is still in

the womb.

I happen to think myself that, once that first premise is granted, the argument

to justify abortion can probably be unraveled step by step. It would be my own purpose to keep taking those steps, one at a time, and keep putting the question to

people on the other side, who would be reluctant to waive the right to abortion

under any set of circumstances. I would indeed raise the question of the child in

late term, or perhaps the child of the ‘‘wrong’’ sex, or the child afflicted with handicaps. But that is to say, I would earnestly press the question with people on the

other side, and attempt to persuade them step by step. None of us can foresee just

how far that process may run. It is still open to people on the other side to refuse

to go along, to insist that they have not been persuaded. They may not in fact see

that the willingness to protect the child at birth bears implications for the protection

of the child even earlier. But if so, what can we do except keep the conversation

going? Yet, with each step we would have succeeded in saving another cluster of

lives, even a handful of lives. And for those lives that are saved, the whole project

must be eminently worth doing.

May I say then, on this point, that there has never been the slightest concealment: This hope of working step by step, to pare back the doctrine in Roe v. Wade,

is something I have proclaimed often in print from the first time, 13 years ago,

15

7See my piece in National Review (October 28, 1988), pp. 30 ff., and ‘‘Anti-Abortion, But Politically Smart,’’ Wall Street Journal (March 28, 1995), Editorial page. 8See the Congressional Record (September 26, 2000), p. H8157.

when I first offered this proposal in public.7 In that case, it is hard to see any warrant for the objection cast up by certain adversaries that this is a ‘‘dishonest’’ bill.8

There has not been a trace of concealment or dissembling on our side; and if the

rules of a robust politics are in order, I would avail myself of the same privileges

of rhetoric and suggest that the real dissembling is on the other side: The partisans

of abortion rights were counseled to vote for this bill rather than to step into our

‘‘trap’’ and vote for infanticide. They were advised, in effect, to play ‘‘rope-a-dope’’— to go with the punch, and vote for the bill, rather than give us a public argument

and draw even more attention to this measure. But plainly, this counsel is one of

pure tactics bordering on cynicism, for those who accept the deep logic of abortion

rights cannot possibly vote for this bill on the premise that the child has a claim

to the protection of the law, regardless of whether anyone happens to want her. In

all strictness, the partisans of abortion rights should come out on this question

where Judge Haynsworth came out: If a pregnant woman had been willing to give

up a child who was so patently her own, she would have arranged for an adoption.

If she had a ‘‘right’’ to destroy a child she did not want, nothing in her right could

have been impaired by fact that the child came out, as it were, by accident. The

right to abortion has been predicated on the premise that the child in the womb

has no standing as a human being, and no rights, that the mother is obliged to respect. That the child happens to be born alive would not seem to add anything of

moral significance in establishing, for the child, the claim to receive the protections

of the law.

It is not our side then that has any explaining to do. The burden really falls to

the defenders of abortion rights to say how they could in fact vote for this bill when

they could not possibly share the premises or principles that would justify this

measure. In contrast, it must be said that the most ‘‘honest’’ response on other side

was the response of the National Abortion Rights Action League, who opposed this

bill from the outset. In the name of prudence this group has been counseled now

to mute its opposition, but its opposition to this bill in principle offers the most eloquent confirmation of the understanding behind our bill. NARAL is nothing if not

clear-headed on the issues of principle, and it recognizes, more than its allies care

to admit, that any move to recognize the child as a being with an intrinsic dignity,

coming within the protection of the law, must plant a principle that would run all

the way back. That small concession in principle would indeed threaten the

rightness of abortion at the root of its moral claim.

In this respect, the people at NARAL see through all of the legal definitions and

distinctions—and see right through to the heart of things. After all, if abortion were

understood strictly, nothing in this bill could possibly threaten any rights articulated in Roe v. Wade. As Professor Gerard Bradley noted last year, in his testimony

for this Committee, ‘‘The Roe Court often referred to ‘potential life’, and used that

term interchangeably with the ‘fetus’, or the child in utero. All these terms were

contrasted to the child born alive’’:

Maloy’s Medical Dictionary for Lawyers (3rd. 1960) defines pregnancy as ‘‘the

state of being with young; preparing to bring forth’’ [581]; ‘‘birth’’ is ‘‘the act of

coming into life, or being born’’. [104]. The Oxford-English Dictionary (2nd edition) defines ‘‘birth’’ as ‘‘the bearing of offspring’’; ‘‘bringing forth’’. ‘‘Pregnant’’, according to the OED, is ‘‘with child or young’’. Abortion, these sources and the cases make clear, refers exclusively to terminating a ‘‘pregnancy’’. Another way to terminate a ‘‘pregnancy’’, it is equally

clear, is to give ‘‘birth’’. . . . The woman is not then prohibited, by this or any

other act, from securing or completing an ‘‘abortion’’. From the moment of birth

on, ‘‘abortion’’ is, according to standard medical usage, impossible. No ‘‘pregnancy’’ remains to be terminated.

To cast a protection over the child born alive is to cast up no restriction on abortion. The rights proclaimed in Roe v. Wade remain unimpaired. But NARAL sees,

rightly, that the Born-Alive Infants Act recognizes the human standing even of the

child marked for abortion. And once that child is recognized for what it is, at any

stage, that recognition must call abortion into question, for it must raise grave questions about the taking of that innocent life, at any age, for reasons that are selfserving.

The opposition to this bill may be muted then, but it will not be stilled. Many

members of Congress will be voting for this bill because they are uneasy over the

notion of removing born children from the protection of the law, and yet they are

16

9 6 Wheaton 264, at 384.

evidently fearful of having Congress act, even to establish the clear limits of that

right to abortion. And so we encounter people who say, ‘‘We agree with you, but

these are rare cases, and as modest as this measure is, it is the first step that allows the Congress to be legislating on abortion. It is the first step toward involving

the government in these private questions of abortion.’’ There are several layers of fallacies involved in this argument, and I don’t expect

the least acknowledgement that arguments of this kind will emanate from some of

the same people who were passionate, several years ago, in advocating the passage

of Freedom of Choice Act. That was an effort to codify in our statutes the holding

in Roe v. Wade. The political figures and professors who championed that measure

apparently did not think that there was anything in the Constitution that barred

the Congress from legislating on the matter of abortion, when it came to protecting

and promoting abortion. Toward that end, the full resources of the federal government could indeed reach that private matter of abortion, whether it involved the

performing of abortions in the military outposts of this country, or providing counseling and support of abortion in private facilities with federal funds.

But there is a curious screening that comes along with this argument when we

turn to restrictions on abortion. And what is screened out, most notably, are the

powers of Congress and the very design of the Constitution in the separation of powers. When people argue that the federal government should not be involved in these

decisions, I usually ask whether they mean that some effort should be made under

Art. III, Section 2, to keep the federal courts from intervening in these questions.

But that is not what they mean, and one nearly has the impression that the federal

courts are somehow not part of the federal government. The federal courts intervened decisively in this matter of abortion in the early 1970’s, and in Roe v. Wade

the Supreme Court virtually swept away the laws that restricted abortion in the

fifty States. Was that not an intervention of the federal government?

The federal courts have addressed the question of abortion in all of its dimensions, from the use of prostaglandins, and the methods of abortion, to the facilities

in which these surgeries may be performed. But we may earnestly ask: How could

the judicial branch of the government have the authority to deal with abortion in

all of its dimensions, while the legislative branch would not have the slightest authority to address it in any dimension? A contention of that kind simply wars with

the most fundamental things that should be understood about the American Constitution, especially by lawyers and members of Congress. Chief Justice Marshall

once remarked on this axiom of the Constitution in Cohens v. Virginia, in 1821: ‘‘[T]he judicial power of every well constituted government,’’ he said, ‘‘must be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws.’’ 9 To put it another way, any

issue that arose under the Constitution and laws of the United States had to come

within the jurisdiction of the federal courts. And yet, even jurists are persistently

taken by surprise by the corollary of that axiom: Any issue that comes within the

competence the judicial branch must come, presumptively at least, within the reach

of the legislative and executive branches. After all, if the Court can articulate new

implications of the Fourteenth Amendment—if the Court can proclaim, say, a deeper right on the part of black people not to suffer discriminations based on race— did Congress not have the power to act on the same clause in the Constitution in

vindicating those rights? Congress did exactly that in 1964, and it acted with the

wider range of flexibility that a legislative body can summon, when it is not confined, in the style of courts, to the task of addressing cases in controversy between

two parties.

We might put the matter finally in this way: If the Court can articulate new

rights under the Constitution—including a right to abortion—the legislative branch

must be able to act, on the same ground in the Constitution, in filling out those

rights. But in filling them out, the legislature must have the power to mark their

limits or their borders. It should be as plain as anything could be that what is not

tenable under the Constitution is that the Supreme Court can articulate new

rights—and then assign to itself a monopoly of the legislative power in shaping

those rights.

The genius of the separation of powers is that no one branch can be in complete

control over the laws or its own powers. The provision on bills of attainder, for example, means that Congress may not legislate guilt or direct prosecutions under the

laws it passes. Congress must work by defining in impersonal terms the nature of

the wrong it would forbid, and it must work with the awareness that the law it

passes will be placed in other hands to be administered. That is to say, the power

to prosecute under the laws may be placed in hands unfriendly to those men and

17

10 John Locke, Second Treatise on Civil Government, Sec. 143. 11See his Opinion published under the heading of ‘‘Citizenship’’ in Opinions of the Attorneys

General, vol. X (November 29, 1862) pp. 382–413.

women in Congress who frame the laws. But as John Locke pointed out, that state

of affairs provides a wholesome caution to the legislators: ‘‘[T]hey are themselves

subject to the law they have made; which is a new and near tie upon them to take

care that they make them for the public good.’’ 10 In other words, they have an inducement not to pass laws that they would not willingly see enforced even against

themselves. In that respect the logic of the separation of powers draws on the logic

of a moral principle: do not legislate for other people a rule that you would not see

applied universally, to yourself as well as others.

That is a wholesome principle, which may aptly govern the government in general—which means that it is no less wholesome when applied to the judicial branch

as well as the legislative. The Congress did not inject the federal government into

the matter of abortion; it was the Supreme Court that did that with crashing cymbals, and reverberations continuing to our day. Since Roe v. Wade, the Congress has

not exercised its legislative authority to restrict or cabin or scale down in any way

the rights that were proclaimed in that landmark case. But now we are at a point

at which the Court has struck down the effort of legislatures in 30 States to protect

children at the point of birth from one of the most grisly abortions. The Court has

brought us to the very threshold of infanticide, and we are asked now to take a deep

breath, avert our eyes, and simply get used to the notion that the right to abortion

will be spilling past the child in the womb, to order the deaths of children outside

the womb. It has become more critical than ever, at this moment, that a line be

drawn. Any right must have its limit, including the right to abortion, and if that

limit is not found in outright infanticide, we must ask: where could it possibly be?

Congress is acting here in the most modest way simply to establish that limit. As

a practical matter, it will affect only a handful of cases, but as I say, it will convey

lessons running deep.

As we have come to understand, important principles may be vindicated even in

a single case. Ollie’s Barbecue in Birmingham, Alabama, was one family restaurant,

but the Civil Rights Act of 1964 was tested and vindicated in the case of that one,

local establishment. There may be a score of cases facing us here, with the infants

who survive the abortion; and yet the principle has an import that goes well beyond

the number of cases. But even so, even if we have but a handful of cases, would

there not be a vast good contained in the move to save this handful of lives? From

the massive volume of abortions in this country—from that 1.3 million carried out

each year—why should we not take even this small gesture and rescue, from that

ocean of deaths, a handful of lives? Why should we disdain that project as an undertaking too small for this Congress? Let us not confuse the modest with the insignificant.

At the same time I would enter the plea that we do not turn away from this modest but significant measure by invoking a misplaced concern for the extensiveness

of the federal code as bar to further legislation. When I appeared last before this

Committee, on the earlier version of this bill, Congressman Watt pointed out that

there were several thousand references to ‘‘persons’’ in the federal code. This bill

works, of course, by providing that all references to ‘‘persons’’ in the federal code

will encompass now children who survive abortions. Again, there is no mandate

here for heroic surgery, or for protections that run beyond those given to other persons under the law. The law would simply enjoin us to treat these newborns, surviving an abortion, on the same plane as we would treat other newborns, and not

turn away from their care. Congressman Watt raised with me the concern over

whether this alteration, or enlargement, in the coverage of ‘‘persons’’ might have

some unanticipated and awkward effects as it is grafted onto the meaning of persons in the several thousand uses of that term in the federal code. The Congressman asked whether I had begun to look into that array of references to ‘‘person.’’ I responded that I’d sampled some of them, but that it really did not matter to the

issue in principle. A certain static entered the air, and I’m not sure that my explanation made it across the ether, and so I would offer it again. I had drawn on the

analogy of Edward Bates, Lincoln’s first Attorney General, when he was issuing an

opinion of the Attorney General in guiding the government in the treatment of free

black persons and resisting the Dred Scott decision of 1857. Bates announced that,

in the understanding of the Lincoln Administration, black people born free in the

United States would indeed be considered as ‘‘citizens’’ of the United States (the decision of the Supreme Court to the contrary notwithstanding). 11 And that move

seemed to incorporate Lincoln’s understanding that the reference to ‘‘persons’’ in the

Privileges and Immunities Clause covered, in its terms, all people, black as well as

18

12Lincoln, Message to Congress (December 1, 1862), in The Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), Vol. V, p. 537.

white. I suggested then that when the Lincoln Administration issued its ruling, on

the understanding guiding the Administration, that understanding could not have

been defeated by someone invoking the complexity of the federal code and saying,

‘‘There are several thousand references to ‘persons’ and ‘citizens’ in the federal code.

Shouldn’t you spend more time looking into the bulk of those references before you

install a change that can affect so many parts of our law?’’

There was no need to do such a thing if we understood that if there is a real principle engaged, that principle will cover every instance or application. As I remarked

to Congressman Watt, once we are clear on the principle by which the ball rolls

down the inclined plane, as the angle of inclination is altered, we no longer have

to ask what the effect would be if we had a blue plane or a yellow one, or an aluminum ball or a wooden one. And if we understand, for example, that it is wrong

to draw adverse inferences about people on the basis of race, we would no longer

have to ask whether racial discrimination would be quite as wrong in regulating access to tennis courts or swimming pools, as well as to schools. Our contention in

this bill is that there is no defensible ground in principle to remove a newborn from

the protections of the law because she happened to survive an abortion. Nothing in

that accident could possibly affect in any way the innocence of the child, her standing as a human being, or her claim to receive the same protections that extend to

any other newborn. The people who do not share our position would be free, of

course, to challenge our reasoning on all of these points. But if they cannot quarrel

with that reasoning, then we would simply suggest that there is no conceivable set

of circumstances in which the innocence of the child would be impaired. And therefore, we can see no conceivable set of circumstances that could justify removing that

child from the protections of the law.

Lincoln once remarked, in a famous line, that ‘‘in giving freedom to the slave, we

assure freedom to the free—honorable alike in what we give, and what we preserve.’’ 12 In this case, we might say that, in setting in place these, most elementary

protections for human life, we are securing the ground for all of our rights, for the

born as well as the unborn. This is the gentlest step to take, and to paraphrase Lincoln from another occasion, let the vast future not lament our having failed to take

it.

Mr. CHABOT. Thank you very much for your testimony this afternoon, Professor.

Mr. ARKES. Thank you.

Mr. CHABOT. Ms. Stanek, you’re recognized for 5 minutes.

STATEMENT OF JILL L. STANEK, MOKENA, IL

Ms. STANEK. Thank you for having me.

I am a registered nurse who has worked in the labor and delivery department at Christ Hospital in Oak Lawn, Illinois for the

past 6 years. In the year that has elapsed since I last testified before this Committee, I have continued to work in the same hospital

at the same position.

Christ Hospital performs abortions on women in their second or

even third trimester of pregnancy. Sometimes the babies being

aborted alive are healthy and sometimes they are not. The abortion

technique that Christ Hospital and other hospitals use is called induced-labor abortion, and sometimes results in babies being aborted alive because throughout this particular procedure, the baby is

not killed in utero. The focus of this procedure is to forcibly dilate

a woman’s cervix so that she will prematurely deliver a baby who

dies during the birth process or soon after.

The cervix is the opening that’s at the bottom of the uterus that

normally stays closed until a woman is about 40 weeks pregnant

and goes into labor. There are a few ways to force the cervix to

open early. At Christ Hospital, the most common way this is done

19

is by the physician inserting a medication called Cytotec into the

birth canal close to the cervix. Cytotec irritates the cervix and stimulates it to open early. After the cervix is prematurely dilated, the

small pre-term baby drops out of the uterus, sometimes alive.

In the event that a baby is aborted alive, he or she is given what

my hospital calls comfort care. Comfort care involves wrapping the

baby in a blanket and offering her to her parents to hold until she

dies. If parents do not want to hold their baby, as I have been told

is most often the case, it is left to staff to care for the baby.

Up until recently, staff options were to hold the baby until death,

or put the baby in our soiled utility if we got too busy or if the baby

lingered too long. Indeed, it is not uncommon for one of these babies to live for an hour or two or even longer. Last year, of the 16

babies that Christ Hospital states were aborted, at least five were

born alive. Four of those babies, two boys and two girls, lived between one and a half and 3 hours. At Christ Hospital, one aborted

baby lived once for almost an entire 8-hour shift. At least two of

the second-trimester babies who were aborted last year at Christ

Hospital were healthy babies.

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

the time to hold him. I could not bear the thought of this suffering

child dying alone in the soiled utility room, so I cradled and rocked

him for the 45 minutes that he lived. He was between 21 and 22

weeks old, weighed about a half a pound, and was about ten 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, I couldn’t tell if he was still

alive unless I held him up against the light to see if I could see

his heart 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 we take all of our other dead patients.

Other co-workers have told me about incidences of live aborted

babies whom they have cared for. A support associate told me

about an aborted baby who was left to die on the counter of the

soiled utility room wrapped in a disposable blanket—I’m sorry—

towel. This baby was accidentally thrown into the garbage, and

when they later were going through the trash to try and find the

baby, the baby fell out of the towel and onto the floor.

A nurse co-worker told me about an abortion she was involved

in where the baby was supposed to have spina bifida but was born

with an intact spine. Since I spoke before you last year, this nurse

that was involved in this particular abortion told me that what actually happened was that there was an incompletely formed twin

who appeared as a mass on his brother’s back during ultrasound.

The nurse told me that the father came into the soiled utility room

to see his son, took one look and saw that he had been involved

in aborting a completely healthy baby, turned and left the room

without saying a word.

I was recently told about a situation by a nursing co-worker who

said, ‘‘I can’t stop thinking about it.’’ She had a patient who was

just over 23 weeks pregnant, and she was not going to be able to

20

complete her pregnancy to term. This baby was completely healthy

and had up to a 39 percent chance of survival according to the national stats, but the patient chose to abort. The baby was born

alive. If the mother had wanted everything done for this baby,

there would have been a neonatologist, a pediatric resident, a pediatric nurse, and a respiratory therapist present for this delivery

and the baby would have been taken to our NICU for specialized

care. Instead, the only personnel present for this delivery were a

resident and my co-worker.

After delivery, the baby, who showed early signs of thriving—she

began to breathe on her own and her FR scores improved—was

merely wrapped in a blanket and kept in the labor and delivery department until she died two and a half hours later.

Just 3 weeks after this baby was aborted, another mother came

to the hospital under similar circumstances, identically aged gestation, and was offered the same options. But she wanted to keep her

baby, and so present at her delivery were those four aforementioned NICU personnel, and for the 2 days that I tracked her, that

little girl lived.

When I testified before you last July, another nurse who worked

at the hospital named Allison Baker also testified. Allison described walking into our soiled utility room on two separate occasions to find live aborted babies left naked on a scale one time and

on a metal counter another time. She told about the patient she

herself had who didn’t know that her baby was going to be aborted

alive and who did not want to hold him. After he was taken to the

soiled utility room, she kept asking, ‘‘Is he dead yet? Is he dead

yet.’’

Lest you think that Christ Hospital’s live abortion practice is uncommon, I am entering into the congressional record today literature from a March 30th, 2001 symposium sponsored by

Waukesha Memorial Hospital in Wisconsin wherein Dr. Washington Hill wrote, that one of three potential complications of a

mid-trimester abortion is a live birth.

After I testified last year, Christ Hospital stopped putting babies

into the soiled utility room to die. Seven months ago, it unveiled

its comfort care room. This is a small, nicely decorated room complete with a First Foto machine in case parents want pictures of

their aborted babies, baptismal supplies if parents would like their

aborted babies baptized, and a footprinter and bracelets if parents

would like keepsakes of their aborted babies. There is also a wooden rocker in the corner to rock the babies to death. And I am entering pictures of the comfort care room into the hearing record with

your permission.

Mr. CHABOT. Without objection.

Ms. STANEK. When Christ Hospital opened its comfort care room,

I was honestly galled. It became clearer to me than ever that a law

must be enacted that specifies that all babies born alive are indeed

human and American citizens with civil rights to equal protection.

This is a point that is obviously not clear to extremists in this

country who believe the right to abort must be extended to include

the right to infanticide.

If a hospital named ‘‘Christ’’ does not willingly stop committing

infanticide but handles public and legal scrutiny by merely trying

21

to make those lives they’re snuffing out more comfortable, I have

such grave concerns about children whose lives are being ended in

abortion clinics and hospitals where there’s no spotlight of attention on them.

Once a fetus has been aborted, the pregnancy has been terminated. But when what emerges on the other side of the vaginal

vault is alive, by medical definition, it is no longer a fetus, but is

now a neonate, a baby, with rights as human beings and American

citizens that must be zealously protected. If we cannot all agree

that civil rights begin at birth, then we will have to begin debating

when do civil rights begin for a human being? Five minutes? Ten

minutes? Three hours? Three weeks? And a Pandora’s Box will

have been opened that none of us can possibly assess the depths

of today.

In closing, the Department of Health and Human Services wrote

to me that civil rights laws do not cover the rights of newborns.

The Illinois Attorney General wrote to me that there was no basis

for legal action by their office against Christ Hospital at this time

in regard to Christ Hospital’s labor-induction abortion practices.

And I am entering both of those letters in the hearing record.

Alan Keyes recently observed, ‘‘If we reflect for a moment upon

the example of the Declaration of Independence, we will remember

that sometimes even self-evident truths need to be declared.’’ And

I think that this is completely obvious that this is one of those

times that that is true.

Thank you very much.

[The prepared statement of Ms. Stanek follow:]

PREPARED STATEMENT OF JILL L. STANEK

I am a Registered Nurse who has worked in the Labor & Delivery Department

at Christ Hospital in Oak Lawn, Illinois, for the past six years. In the year that

has elapsed since I testified before your committee regarding the same bill under

discussion today, I have continued to work at the same hospital in the same position.

Christ Hospital performs abortions on women in their second or even third trimesters of pregnancy. Sometimes the babies being aborted are healthy, and sometimes they are not. The abortion technique that Christ Hospital and other hospitals

use, called ‘‘induced labor abortion,’’ sometimes results in infants being aborted

alive, because throughout this particular abortion procedure the fetus is not killed

in the uterus. The focus of this method is to forcibly dilate a woman’s cervix so that

she will prematurely deliver a baby who dies during the birth process or soon afterward.

The cervix is the opening at the bottom of the uterus that normally stays closed

until a woman is about 40 weeks pregnant and goes into labor. There are a few

ways to cause the cervix to open early. At Christ Hospital the most common way

this is done is by the physician inserting a medication called Cytotec into the birth

canal close to the cervix. Cytotec irritates the cervix. The FDA does not approve

Cytotec for this use. It is a drug that is supposed to be taken by mouth to help control ulcers. The manufacturer of Cytotec issued a public letter in August 2000 warning that this drug may be harmful to women if used to induce labor, up to and including causing the uterus to rupture and causing death. But Christ Hospital continues to use Cytotec for pregnancy terminations.

After the cervix is prematurely dilated, the small, preterm baby drops out of the

uterus, sometimes alive. In the event that a baby is aborted alive, he or she is given

what my hospital calls ‘‘comfort care.’’ ‘‘Comfort care’’ involves wrapping the baby

in a blanket and offering him or her to the parents to hold until the baby dies. If

parents do not want to hold their baby, as I have observed is most often the case,

it is left to staff to care for the baby. Up until recently, staff options were to hold

the baby until death or put the baby in our Soiled Utility Room if we got busy or

if the baby lingered too long. Indeed, it is not uncommon for one of these babies

22

to live for an hour or two or even longer. Last year alone, of the 16 babies that

Christ Hospital states were aborted, I am aware of four who were born alive. Each

of these babies—two boys and two girls—lived between 11⁄2 and 3 hours. At Christ

Hospital one of these babies once lived for almost an entire eight-hour shift. At least

two of the second-trimester babies who were aborted last year at Christ Hospital

were completely healthy.

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 ° 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.

Other co-workers have told me about incidences of live aborted babies whom they

have cared for. A Support Associate told me about an aborted baby who was left

to die on the counter of the Soiled Utility Room wrapped in a disposable towel. This

baby was accidentally thrown into 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.

A nurse coworker told me about an abortion she was involved in where the baby

was supposed to have spina bifida but was born with an intact spine. She said that

what actually happened was that there was an incompletely formed twin who appeared as a mass on his brother’s back during an ultrasound. The nurse told me

that the father came into the Soiled Utility Room to see his son, took one look and

saw that he had been involved in aborting his completely healthy baby, and turned

and left the room without saying a word. I was recently told about a situation by

a nursing coworker who said, ‘‘I can’t stop thinking about it.’’ She had a patient who

was just over 23 weeks pregnant, and she was not going to be able to complete her

pregnancy to term. The baby was healthy and had up to a 39% chance of survival,

according to national statistics. But the patient chose to abort. The 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 coworker. 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 21⁄2 hours later. Just three weeks after

this baby was aborted, another mother came to the hospital under similar circumstances, carrying an identically aged baby and was offered the same options.

But she said that she wanted her baby. And so present at her delivery were the

aforementioned NICU team, and for the two days that I tracked her, that little girl

lived.

When I testified before you last July, another nurse who worked at Christ Hospital, Allison Baker, also testified. Allison was not asked back today due to the new

limit on the number of witnesses allowed. But last year Allison described walking

into the Soiled Utility Room on two separate occasions to find live aborted babies

left naked on a scale and the metal counter. She told about the patient that she

herself had who didn’t know that her baby might be aborted alive and who did not

then want to hold him. After he was taken to the Soiled Utility Room she kept asking, ‘‘Is he dead yet? Is he dead yet?’’ (This testimony is being entered today into

the Congressional Record.)

Lest you think that Christ Hospital’s live birth abortion practice is uncommon,

I am entering into Congressional Record today literature from a March 30, 2001,

symposium sponsored by Waukesha Memorial Hospital in Wisconsin that was ‘‘reviewed and is acceptable’’ by the American Academy of Family Physicians, wherein

Dr. Washington Hill writes that a ‘‘complication’’ of a mid-trimester labor induction

is a ‘‘live birth.’’ The American College of Obstetricians and gynecologists also gave

credit hours to physicians for taking this course.

After I testified last year, Christ Hospital stopped putting aborted babies to die

in the Soiled Utility Room. This past December it unveiled its ‘‘Comfort Room.’’ This

is a small, nicely decorated room complete with a First Foto machine in case parents

want pictures of their aborted babies, baptismal supplies if parents would like their

aborted babies baptized, and a foot printer and baby bracelets if parents would like

keepsakes of their aborted babies. There is also a wooden rocker to rock these babies

to death. (Pictures entered into Congressional Record.)

23

When Christ Hospital opened its Comfort Room, I was honestly galled. It became

clearer to me than ever that a law must be enacted that specifies that all babies

born alive are indeed humans and American citizens with civil rights to equal protection. This is a point that is obviously not clear to extremists in our great country

who believe that the right to obtain an abortion must be extended to include the

right to commit infanticide. If a hospital named ‘‘Christ’’ does not willingly stop committing infanticide but handles public and legal scrutiny by merely trying to make

those whose lives they’re snuffing out more ‘‘comfortable,’’ I have grave concerns

about children whose lives are being ended at abortion clinics and hospitals where

there is no spotlight of attention.

Once a fetus is aborted, the pregnancy has been terminated. But when what

emerges on the other of the vaginal vault is alive, ‘‘it’’ by medical definition is no

longer a fetus but is now a ‘‘neonate’’ or ‘‘baby,’’ with rights as human beings and

American citizens that must be zealously protected. If we all cannot at least agree

that civil rights begin at birth, then we will have to initiate the debate as to when

after delivery a living person does begin to have rights, and a Pandora’s Box will

have been opened, the depths of which none of can possibly ascertain today.

The Department of Health & Human Services wrote me that, ‘‘civil rights laws

do not cover abortion procedures or the rights of newborns.’’ The Illinois Attorney

General determined that ‘‘there is no basis for legal action by this office against the

Hospital’’ at this time . . . in regard to Christ Hospital’s labor induction abortion

practices. (Both letters entered into Congressional Record.) Alan Keyes recently observed, ‘‘If we reflect for a moment upon the example of the Declaration of Independence, we will remember that sometimes even self-evident truths need to be declared.’’ I think it is obvious that this is one of those times.

Mr. CHABOT. Thank you very much. We appreciate it. I know

that you’ve testified a number of times before and I just want to

personally say that I really respect you and the fact that you’ve

come forward——

Ms. STANEK. Thank you.

Mr. CHABOT [continuing]. To describe things which are not particularly pleasant to describe. So thank you.

Dr. Bowes, you’re recognized for 5 minutes.

STATEMENT OF WATSON A. BOWES, JR., MD, PROFESSOR

EMERITUS, DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, UNIVERSITY OF NORTH CAROLINA AT CHAPEL

HILL SCHOOL OF MEDICINE

Dr. BOWES. Thank you, Mr. Chairman and Members of the Committee.

You’ve accurately summarized my professional background, so I

won’t repeat that in the interest of time. I would like to say that

as an obstetrician caring for high-risk babies, especially premature

infants, I worked daily in close conjunction with a neonatologist especially around issues that I think this bill relates to. This seems

to be specific for babies who are born, not babies who are being

cared for days later in the neonatal intensive care unit, and I think

Mr. Nadler made that point and I would like to emphasize that.

Mr. NADLER. Could you comment on one question at this point?

Dr. BOWES. Yes.

Mr. NADLER. And I ask unanimous consent——

Mr. CHABOT. Without objection.

Mr. NADLER. Because it’s—you deal with all these issues daily.

Ms. Stanek just gave us accounts of various practices in the hospital she works at. Essentially what she was saying is that babies

who were intended to be born got extraordinary medical care. Neonates who weren’t wanted just got comfort care without the extraordinary medical attention.

24

As I read the bill, it wouldn’t change that at all. How would this

bill affect what Ms. Stanek was talking about, what she obviously

disapproves of?

Mr. CHABOT. If the witness would like to address that now, or

it could also be addressed later on in the questioning stage. I

thought he was particularly—— Dr. BOWES. Well, I think I will address it in my statement, Mr.

Nadler, and if not, I’ll expand on it.

Mr. NADLER. Okay.

Dr. BOWES. I have read this legislation carefully and as it relates

to an infant born alive at any stage of development, and that the

infant breathes or has a beating heart, pulsation of the umbilical

cord or definite movement of the voluntary muscles, this definition

applies regardless of the duration of pregnancy at which the infant

is born or the means by which it is born. This definition of live

birth is consistent with that of the World Health Organization and

is in current use by health department guidelines throughout most

of the United States. Furthermore, these criteria of live birth are

unambiguous and easily discernible by any birth attendant.

It is my opinion that this definition of being born alive does not

and will not have a detrimental effect on either maternal or infant

health care. I am confident of this because this is a definition of

live birth that is in effect in the State of North Carolina in which

I have practiced for 18 years.

During this time, these criteria for defining live birth did not

interfere with physicians making clinical judgments about providing appropriate care for newborn infants, nor with parents being

involved in those decisions.

Importantly, this 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 decisions about withholding or discontinuing medical or

surgical treatment that is considered futile in the care of an infant.

Providing life-sustaining treatment at the time of birth for infants

in whom there is some doubt about whether they will survive allows physicians and parents the opportunity to discuss management options after more information is available about the infant’s

condition and prognosis.

A delivery room is not an optimum place for parents to make life

and death decisions about their newborn infant. Of course, there

are times when resuscitation of a depressed newly born infant is

not successful. This bill does not require physicians to persist in

treatment that is not successful or is considered futile.

Finally, in my role on the Infant Care Review Committee at the

University of North Carolina, which I served on for a number of

years, I was never aware of the egregious use or prolongation of futile medical interventions that could have been attributed to this

definition of live birth. This is a matter that I think concerns the

neonatologists. We simply did not have that issue arise in those 8

years that I was on that Committee.

I appreciate the opportunity to speak in regard to this bill.

25

[The prepared statement of Dr. Bowes follows:]

PREPARED STATEMENT OF WATSON A. BOWES, JR.

Mr. Chairman and members of the committee:

My name is Watson A. Bowes Jr. I am professor emeritus of Obstetrics and Gynecology in the School of Medicine at the University of North Carolina at Chapel Hill.

My medical school education and residency training in Obstetrics and Gynecology

were at the University of Colorado Medical Center in Denver. I am board certified

in Obstetrics and Gynecology and Maternal-Fetal Medicine. My major professional

interest was in the care of women with high-risk pregnancies, especially those at

risk of delivery of a premature infant.

From 1982 until June 20, 1999, I was a member of the full-time faculty of the

University North Carolina at Chapel Hill. From 1984 until 1998 I was chairman of

the Infant Care Review Committee at the University of North Carolina Hospitals.

This interdisciplinary committee had the responsibility of developing guidelines regarding withholding or withdrawing medical care from seriously ill infants and reviewing any instance in which there was concern that these guidelines were not followed. Also from 1994 until 1999 I served on the Committee on Ethics of the American College of Obstetricians and Gynecologists and was Chairman of that committee during the last two years of that time.

My comments and opinions about are not made in behalf of the University North

Carolina or any other organization.

I have read the legislation proposed in the Born Alive Infant Protection Act of

2001 which states that the criteria that an infant is born alive at any stage of development are that the infant ‘‘breaths or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.’’ This definition applies regardless of the duration of pregnancy at which the infant is born or the means by which

it is born. This definition of live birth is consistent with that of the World Health

Organization and is in current use by health department guidelines throughout

most of the United States. Furthermore, these criteria of live birth are unambiguous

and easily discernible by any birth attendant.

It is my opinion that this definition of being born alive does not and will not have

a detrimental effect on either maternal or infant health care. I am confident of this

because this is definition of live birth that is in effect in the state of North Carolina

in which I practiced for 18 years. During this time, these criteria for defining live

birth did not interfere with physicians making clinical judgments about providing

appropriate care for newborn infants nor with parents being involved in those decisions. Importantly, this definition of live birth does not restrict a physician’s prerogative to recommend that medical care regarded as futile be withheld or withdrawn.

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 decisions about withholding or discontinuing

medical or surgical treatment that is considered futile in the care of an infant. Providing life-sustaining treatment at the time of birth for infants in whom there is

some doubt about whether they will survive allows physicians and parents the opportunity to discuss management options after more information is available about

the infant’s condition and prognosis.1 A delivery room is not an optimum place for

parents to make life and death decisions about their newborn infant. Of course,

there are times when resuscitation of a depressed newly born infant is not successful. This bill does not require physicians to persist in treatment that is not successful or is considered futile.

Finally, in my role on the Infant Care Review Committee at University of North

Carolina Hospitals, I was never aware of the egregious use or prolongation of futile

medical interventions that could have been attributed to this definition of life birth.

Mr. CHABOT. Thank you very much, Dr. Bowes. We appreciate

your testimony this morning.

At this point, Members will have 5 minutes to ask questions of

the panel. I recognize myself for that purpose for 5 minutes.

Ms. Stanek, let me start with you, if I can. You have described

things, some awful things which I hate to even think of and I think

a lot of us hate to think of, and the fact that you were there and

had to undergo that is quite—it’s hard to comprehend, to tell you

the truth.

26

Could you tell us how—if you’ve talked to other nursing personnel, either at your hospital or others? Since this has happened,

I know you have become involved in trying to make this aware—

make the public aware of what’s actually happening to see if we

can’t do something to change this.

Could you tell us how widespread this practice is around the

country or in your community or whatever is appropriate for you

to comment on?

Ms. STANEK. Right. When I first started becoming involved in

this, I found out immediately that there have been articles written

from hospitals in Australia. A nurse there held an aborted baby

who was alive for 80 minutes. It’s a huge controversy in Canada.

All I can speak to today in regard to how widespread it is in the

United States is that Christ Hospital didn’t make it up. They told

me they glean their policy from other policies of other hospitals. I

can only say that I have, you know, been on talk shows since then,

I have spoken with nurses, one in San Diego that said it was going

on in her hospital. I was just on a show 2 weeks ago where a mother from Washington State called in crying but defending the fact

that she had aborted her spina bifida baby alive, and so I can

speak to that, and speak also to the symposium information that

I’m entering in the congressional record today that was approved

by—I forget the names of the organizations, but important organizations, OB organizations and pediatric organizations, before it was

given that mentioned that one of three complications is a live birth

to this sort of abortion procedure.

Mr. CHABOT. Thank you very much.

Professor Arkes, in your written statement, you had stated that

the notion that a child born alive that was marked for abortion

prior to death is not a person whose life State law may protect.

State law may protect has merged in the most fearful way with the

decision last year in Stenberg v. Carhart.

Would you comment about how that particular court case has affected this particular area and what your opinion is about that?

Mr. ARKES. Well, you’ve already cited from the concurring opinion by Justice Ginsburg and Stevens. But in his main opinion for

the Court, Justice Breyer pointed out that this procedure of the

partial-birth abortions could be safer for the woman because no instruments were introduced into the uterus. Well, by that construction, the kind of abortion described by Jill Stanek in Christ Hospital would be even safer—no instruments are being introduced. All

the safer, then, simply to deliver the child alive and allow the child

to die.

So I think what Justice Breyer did was sort of pave the way or

pave the ground here to make the public a bit more suggestible to

the notion of letting the child die and delivering the child alive.

When I say we’re at the threshold of infanticide, I think we’re essentially there.

Mr. CHABOT. Thank you.

Let me——

Mr. ARKES. By the way, Mr. Chairman, just quickly in response

to your other question,——

Mr. CHABOT. Sure.

27

Mr. ARKES [continuing]. Jill Stanek in her testimony last year

gave the response I think to Congressman Nadler’s question. She

reported that were it not for the fact that these children had been

marked for abortion, those children would have been given the benefit of every bit of equipment and artistry available to the hospital.

The only difference was that they had been marked for abortion.

Mr. CHABOT. Thank you.

Ms. Stanek, if you could comment, were some of these babies

that had been born, is it your opinion that, from what you knew,

that some of these babies would have been capable of surviving if

they had received proper care and life support which others

would—— Ms. STANEK. Yes.

Mr. CHABOT [continuing]. Would oftentimes get if they were—— Ms. STANEK. Can I add one little thing to the last question—— Mr. CHABOT. Yes.

Ms. STANEK. When he was offering it, I remembered one little

thing.

Mr. CHABOT. Sure.

Ms. STANEK. That as soon as Christ Hospital confessed to being

involved in this sort of abortion 2 years ago, two other hospitals in

Chicago immediately confessed also to being involved in this sort

of abortion, Rush Presbyterian, St. Luke’s, and Lutheran General.

And so just in Chicago alone, there have been three hospitals that

have come forward and said that they take part in this sort of

abortion.

Now to answer your question specifically, the 23-weeker who was

aborted last year, under the guidelines of the American Heart Association, was potentially viable. They say now, and the lines do

keep changing, that a baby that’s 23 weeks and 400 grams they

consider potentially viable, and this baby was 23 and one-seventh

weeks and 460 grams, and she was a girl, and girls typically are

heartier than boys in this sort of situation, so she stood a great

chance of surviving, yes.

Mr. CHABOT. I would ask unanimous consent for one additional

minute to ask one more question, if I could. Without objection.

Dr. Bowes, could you comment on nowadays with the technology

that we have how early—what are about the earliest stages that

babies can be—could survive these types—— Dr. BOWES. All right. In sophisticated neonatal intensive care

units such as Ms. Stanek was describing, 23 weeks is generally

considered the margin at which survival is expected with good neonatal intensive care. Now, there are instances where babies younger than that have survived, but over all.

Now, that doesn’t mean that there aren’t exceptions to that rule,

and that has changed. It’s interesting, in 1975, that was 28 weeks

gestation. So the technology is evolving all the time, so that is not

a hard-and-fast gestational age at which you would make that cutoff.

Mr. CHABOT. Thank you very much.

My time has expired and I now recognize the gentleman from

New York, the Ranking Member, Mr. Nadler, for five—— Mr. NADLER. Thank you. Just quickly, Dr. Bowes, before we get

into the questions, what is the age of viability without the extraorVerDate 11-MAY-2000 14:03 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071201\73696.000 HJUD2 PsN: HJUD2
28

dinary technology? In other words, the change from—the technology changed in the last 20 years; the human beings didn’t

change, obviously. So what is the general age of viability in a premature delivery without the use of modern technology?

Dr. BOWES. Well, babies who aren’t resuscitated and given the

supportive care of neonatal intensive care around 30 weeks, a substantial portion of them will die.

Mr. NADLER. Okay.

Dr. BOWES. And—— Mr. NADLER. Thank you. I only have 5 minutes.

Dr. BOWES. Okay. Excuse me.

Mr. NADLER. I was just curious about that.

Dr. Arkes, you object to the fact that a court may allow an abortion at any stage of pregnancy under certain circumstances. You

stated that. And you also wrote in a 1988 article that most Americans believe that life begins at conception. Does that mean that you

would consider an IUD that destroys a blastocyst by not permitting

it to be implanted is a form of infanticide?

Mr. ARKES. Well, as I wrote on that, I addressed that in a book

of mine, it possibly could. But I would say out of prudence, that

though it would be destroying the life, the law does not require us

to reach every hard case. So I would just—I would back away on

that.

Mr. NADLER. You think in general the answer is yes, but you

would back away from insisting on it.

Mr. ARKES. I think, first of all, if I understand that I’m dealing

with a human being, that the way in which that human being is

killed, by a bus or any other kind of device, is really beside the

point principle.

Mr. NADLER. Or an IUD.

Mr. ARKES. Or IUD.

Mr. NADLER. Same thing.

Mr. ARKES. Now, the question is, even though that could be the

case, it may not be practicable to reach every instance of a wrong.

Mr. NADLER. Okay. Thank you.

Dr. Bowes, now I would ask you to address the question. The law

of every State as I understand says that an infant who is alive and

is not with—and is separate from its mother is clearly a human

being. We’ve always recognized that in law. The question—the situation that Ms. Stanek addressed in Christ Hospital was that the

hospital didn’t give an appropriate level of care to infants for whatever—to certain infants as opposed to other infants for whatever

reason.

Now, one might think that’s right or wrong. I don’t see that this

bill would change that situation at all. Would it, and if so, how?

Dr. BOWES. Well, I would suggest that if someone intervened on

behalf of a child that was clearly viable after its birth with the aid

of neonatal intensive care and it was not provided——

Mr. NADLER. That’s a—clearly viable is a medical judgment, obviously.

Dr. BOWES. Yes.

Mr. NADLER. Okay. Go ahead.

Dr. BOWES. The—someone could intervene on behalf of that

child.

29

Mr. NADLER. And that’s true under current law.

Dr. BOWES. Yes.

Mr. NADLER. And how does this bill change that?

Dr. BOWES. I don’t think it does change that.

Mr. NADLER. So this bill doesn’t change anything that Ms.

Stanek was talking about.

Dr. BOWES. Yes, I—that’s what I said in my statement. I don’t

think this changes medical care for those babies.

Mr. NADLER. So all the testimony that we heard here, the heartwrenching testimony, is very interesting, but irrelevant to consideration of this bill. This bill doesn’t have any effect on that. In other

words, the current—the current law—and maybe the people at

Christ Hospital weren’t obeying the current law, but the current

law with respect to all of those situations is not changed by this

bill, correct?

Dr. BOWES. I think—I think that’s correct.

Mr. NADLER. What?

Dr. BOWES. I think that’s correct. If—now, I don’t know——

Mr. NADLER. Correct. Thank you.

Dr. BOWES [continuing]. Specifically what the State of

Illinois——

Mr. NADLER. Well, I don’t know specifically the State of Illinois,

either. I assume it’s the same as the other 49 States in the crucial

respect.

Well, we come back to what I said to my evaluation of the bill

before—it doesn’t change the law in any way. The situation in

Christ Hospital, maybe the law should be obeyed a little more or

someone should enforce it, but this bill doesn’t deal with that. Does

anybody disagree with that?

Mr. ARKES. Well, sure. I think you have—you don’t seem to count

on the intervention of the understanding of someone like Judge

Barry. Judge Barry comes in and simply says we simply shift the

labels. That isn’t a child who was——

Mr. NADLER. Excuse me a minute.

Mr. ARKES. Yes.

Mr. NADLER. This bill doesn’t change that, either.

Let me suggest—okay. I think I’ve established what I need to,

that maybe somebody has to do something at Christ Hospital, but

that this bill doesn’t deal with these problems.

And I’ll yield back.

Mr. CHABOT. I thank the gentleman for yielding. We have a disagreement on what it establishes and doesn’t.

But the gentleman from Alabama is recognized for 5 minutes.

Mr. BACHUS. I have no questions. I appreciate the panelists’ testimony.

Mr. CHABOT. The gentleman from Virginia.

Mr. SCOTT. Thank you, Mr. Chairman.

Professor—how do you pronounce your—is it Arkes?

Mr. ARKES. Arkes.

Mr. SCOTT. Are you familiar with the Federal definition of death?

Mr. ARKES. The Federal definition of death? No.

Mr. SCOTT. No? You said yes or no?

Mr. ARKES. No, I haven’t looked—checked the code recently.

30

Mr. SCOTT. Well, whatever it is, is it possible that a person could

be clinically dead but still meet the—this definition of born alive?

Mr. ARKES. Why don’t you fill it in for me?

Mr. SCOTT. I don’t know. Does anybody know whether or not you

could be technically born alive pursuant to this bill and also meet

the clinical definition of death?

Mr. NADLER. Would the gentleman yield? I—the definition here

is that, aside from that you’re outside the mother, is that the subject breathes or has a beating heart, pulsation of the umbilical

cord, and definite movement of voluntary muscles. If you—that

could—if a person was brain dead, have no flat medical—flat EEGs

and so forth, and was on a respirator, he might show these other

symptoms and be considered clinical dead, though, if he were on a

respirator which maintained his beating heart and so forth.

Mr. SCOTT. Well, we don’t know whether or not someone, based

on the witnesses we have before us, don’t know whether someone

could be clinical dead but by this legislation be designated as born

alive.

Professor, could you tell me if you could be born alive by Federal

law but not born alive by State law? Is that possible?

Mr. ARKES. Well, I think the State law would be the primary law

in being, and I think all you’re doing here is correcting for those

places in which people think that the intervention of that right to

abortion simply changes all the standing law.

Mr. SCOTT. Let me ask you again. This defines born alive by Federal law. Is it possible that you could be born alive pursuant to

Federal law but not born alive pursuant to State law?

Mr. ARKES. I think it’s essentially the same standard. I yield—

I would yield to my colleague from North Carolina. I think it’s the

same standard in most places.

Mr. SCOTT. Well, if we don’t know, we don’t know. We just—

there are a lot of things we don’t know about the legislation.

Can somebody tell us what this does to inheritance law?

Mr. ARKES. Well, I assume the same thing would be in place.

Right now, if you have a child in the womb, it could have standing

to inherit property. So it’s the same thing. If the child comes out

alive and the child is preserved, then he’s simply preserved in his

status as one who’s capable of inheriting property. Nothing novel

there.

Mr. SCOTT. So this would—would this change inheritance law or

not?

Mr. ARKES. No, I can’t see how it could change inheritance law.

Mr. SCOTT. This would have no effect on inheritance law?

Mr. ARKES. Not that I can see.

Mr. CHABOT. Would the gentleman yield?

Mr. SCOTT. I yield.

Mr. CHABOT. Inheritance law is State law in any event, so this

wouldn’t have any effect.

Mr. SCOTT. Well, we didn’t get an answer to the question as to

whether you’re alive under State law and not alive under Federal

law or vice versa.

Mr. CHABOT. Well, if the gentleman will yield,——

Mr. SCOTT. I yield.

31

Mr. CHABOT [continuing]. The State laws already have definitions for being dead or being alive.

Mr. SCOTT. Well, let me ask the Chairman, then—— Mr. CHABOT. The definition—the definition in here talks about

when one is considered to be alive and it talks about breathing or

voluntary muscle activity or pulsation of the umbilical cord.

Mr. SCOTT. But is it the legislative intent that you could be born

alive pursuant to Federal law but not born alive pursuant to State

law?

Mr. CHABOT. This is—if the gentleman will yield?

Mr. SCOTT. I will yield.

Mr. CHABOT. The purpose of this legislation is to remedy a situation which is out there right now relative to decisions by the

United States Supreme Court in Stenberg v. Carhart, the Farmer

case, which essentially may well allow infanticide in this country

to exist, and this legislation is to—is to clearly say that if a person

is born, if they’re outside the mother, then that person is alive.

Mr. SCOTT. I recognize what you are trying to do. My—it was

just a simple question. There are definitions of death in Federal

and State law, I assume. But the question is whether you can be

not born alive pursuant to State law for inheritance purposes but

born alive by Federal law.

Mr. WATT. Will the gentleman yield?

Mr. SCOTT. I will yield to the gentleman from North Carolina.

Mr. WATT. I can’t answer that question, but I do think you

picked up on an interesting line. Inheritance is all controlled by

State law, but taxation, at least Federal inheritance taxation, is

not controlled by Federal law. It would be interesting to know

whether this has any impact on exemptions under Federal inheritance taxation law, would be an interesting question.

Mr. CHABOT. If the gentleman will yield although his time is expired,—— Mr. SCOTT. I yield.

Mr. CHABOT [continuing]. We just did away with Federal inheritance taxes in any event, but——

Mr. WATT. Not until 2011.

Mr. CHABOT. It comes back again, but if Republicans are around,

it won’t come back; if Democrats are around, it will come back.

Mr. WATT. Mr. Chairman, in the interim—— Mr. CHABOT. But I understand this was part of the Republican

tax package.

Mr. WATT. In the interim between now and 2010, this would still

be a relevant question.

Mr. CHABOT. The gentleman’s time has expired. We thank the

gentleman for those probing questions.

The gentleman from Indian, Mr. Hostettler, is recognized for 5

minutes.

Mr. HOSTETTLER. I thank the Chairman. If I can be of some assistance, while I’m not an attorney, I think article VI of the Constitution sheds a little light on this in that this Constitution and

the laws of the United States which shall be made in pursuance

thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land

and the judges in every State shall be bound thereby, anything in

32

the Constitution or laws of any State to the contrary notwithstanding.

So we are—— Mr. SCOTT. What part did you just read—what part did you just

read from?

Mr. HOSTETTLER. Pardon? The supremacy clause.

That being aside, since we are discussing IUDs and inheritance

law at this time of born-alive infants, I thought it would be relevant to talk just briefly about the issue of infanticide and partialbirth abortion in that while Justice Stevens and Ginsburg have

said, quote, ‘‘The notion that a partial-birth abortion is more akin

to infanticide than any other abortion procedure is simply irrational,’’ end quote; however, someone who has a little bit more experience with the practice of abortion—namely, Dr. Bernard

Nathanson—in fact refers to and did refer to in a seminar here in

the Capitol that partial-birth abortion is, in fact, a misnomer, that

the practice of partial-birth abortion is, according, medically, to Dr.

Bernard Nathanson, who oversaw thousands of abortions himself,

is infanticide, and I think that speaks directly to the importance

of this issue today. And I am so glad that the Chairman has

brought this bill up, because if we decide that allowing these young

babies not to die isn’t infanticide, then we can, in fact, say that it’s

not infanticide and it can continue unabated.

The point, Professor Arkes, that you’ve made is I think very

relavant, and that is in your testimony, you talked about the opinion that Judge Barry made that spoke about the issue and says

that the fact that a baby that is allowed to die allows an abortion

to be completed even if it’s outside the womb confirms what many

pro-life lawyers had refused to believe. Judge Haynsworth’s opinion

in Flood v. Anders was not an anomaly or aberration; it expressed

the understanding that had now become the operational doctrine

among many Federal judges. And the point is this, that we are

drawing a bright line here today when it comes to the idea that infants that are born alive are, in fact, persons that require the safety and security of the law, and—but in fact, Professor Arkes, if you

could help me, not being an attorney, if, in fact, the Supreme Court

says that what we do today is unconstitutional, will the country not

be bound to continue to allow what Ms. Stanek has said has happened time and time again in a hospital named after Christ to continue to happen?

If the Court says that what we do today is unconstitutional, will

it not, in fact,—if what you say is true, that it’s not an anomaly

and that it is becoming the prevalent opinion of Federal judges

that this practice should be allowed to continue and it’s nonsensical

to think about the position of the baby at the time of birth or completed abortion, won’t this have to continue?

Mr. ARKES. Well, you read the supremacy clause and presumably

that supremacy attaches to the decisions of the Supreme Court unless, of course, you revive Lincoln’s understanding about the relations among the branches and the way that Lincoln resisted the

Dred Scott decision. He said the political branches could simply insist that we respect the disposition of the case in regard to those

two litigants, but if we reject the principle, say, in the Dred Scott

case, we’re not obliged to apply that principle.

33

Mr. NADLER. You wouldn’t impose that on Bush v. Gore, would

you? [Laughter.]

Mr. ARKES. I invite you to legislate on that! I think you should

really grasp your warrant and try to summon the powers of Congress to legislate. I think you should try your hand at that.

Remember, the Lincoln administration very early on, they had

an application from a black student for a passport to study in

France. The application was denied because the Supreme Court

had decided that the Blacks couldn’t be citizens of the United

States and carry passports, and the Lincoln administration

quashed that decision. It was a case of a branch of the Federal executive applying the principle of the Dred Scott case to circumstances quite remote from anything that arose in that case.

And in a similar way, this Congress is the coordinate branch and

if the Supreme Court did something like that, which I rather doubt

it would do, I would hope members of Congress would do what

they’ve done with the legislative veto in the Chadha case, simply

try to restrict that holding to a decision bearing on immigration but

continue to legislate in that vein in the hope of inducing the Supreme Court to take a sober second look at what it’s done and perhaps change its mind.

Mr. CHABOT. The gentleman’s time has expired.

Mr. HOSTETTLER. If I could just follow up with one question.

Mr. CHABOT. Without objection.

Mr. HOSTETTLER. You’re saying that all legislative power should

be vested in a Congress and not necessarily in the——

Mr. ARKES. Yes, that’s a dramatic notion, I know, but——

Mr. HOSTETTLER. Thank you.

Mr. CHABOT. Thank you. The gentleman’s time has expired.

The gentleman from North Carolina, Mr. Watt, is recognized for

5 minutes.

Mr. WATT. Thank you, Mr. Chairman. I am not sure I have any

questions, but as I was walking in the door, Professor Arkes obviously came prepared to give me a response to some question that

was lingering over from the last time, and I certainly—and I got

the impression that he would prefer to have had me here to deliver

the lecture. [Laughter.]

Mr. WATT. I didn’t want to deprive him of that opportunity. I

wanted to be sitting here looking at him.

Mr. ARKES. I didn’t think you could bear to go for a whole year

without seeing me at one of these hearings.

Mr. WATT. And I missed the point that you were making anyway,

so I am going to give you the opportunity to—and the satisfaction

of making that point again since I don’t have any questions. Maybe

that will stimulate one. But go right ahead.

Mr. ARKES. You raised the question last year: There were something like 57,000 references to persons.

Mr. WATT. If so, I’ve won it several times during the course of

this hearing.

Mr. ARKES. The point I was making here was that it’s an old dictum that once we’re clear on the principle, the principle covers all

the instances. I remember I drew upon the analogy of the ball rolling down the inclined plane. Once we understand what that prinVerDate 11-MAY-2000 14:03 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071201\73696.000 HJUD2 PsN: HJUD2
34

ciple is, then we no longer have to ask: Is it a blue plane or a yellow plane, is it a glass ball?

We see this confusion at times say in civil rights. There were

lawyers who said, how do we get from the question of racial segregation in schools to swimming pools? Nobody’s capacity to learn

was being affected. What these professors didn’t understand is that

once we’re clear on the principle involved in racial discrimination,

it covers all of the instances, whether we’re talking about drugstores or anything else.

So that was my point: If we think that it’s simply a question of

whether we can conceive of any arrangements under which an innocent child could forfeit the same protections that are given to any

other child, then the circumstances may become relevant. But if we

have a hard time conceiving any of those circumstances, it’s hard

to see how any one of those instances could possibly throw off that

principle.

Mr. WATT. I appreciate that. It’s in some ways, many ways, very

consistent with some of the things I believe in. I do think that you

probably need to know what it is you’re doing before you do it,—— Mr. ARKES. That’s always useful.

Mr. WATT [continuing]. But once you know what you’re doing, if

it’s good for the goose, it’s good for the gander, which is one reason

I’ve been trying to convince a number of my Jewish friends that

reparations for Jewish atrocities—the principle is the same, reparations for atrocities in the United States. So I don’t—I don’t argue

with that principle. I think the point I’m concerned about is have

we a full understanding of what this bill does, and I still don’t have

that full understanding.

Some people keep saying it does nothing and I have never seen

a need to legislate in a way that does nothing. Some people say it

does something, and I would simply like to know what that something is before I vote in favor of it. That’s all I said the last time

and signed off on the dissenting opinion, which said the same

thing.

It may be that what this bill does, I stand for, but I need to know

what it does before I can make that determination. So—and that’s

pretty much where I am again this year.

Mr. ARKES. I appreciate that. Could I just say something quickly

in response?

Mr. WATT. Sure. I’ve got a little bit more time.

Mr. ARKES. I think Mr. Nadler has it mostly right. There should

be very little change. Congressman Scott made me think that the

problem he mentioned really came into being with that legislation

in the mid ’80’s when we were trying to deal with the withdrawal

of medical care from children because they were afflicted with

spina bifida or Down’s Syndrome. Now, you could say that until the

Federal law intervened to ensure against the withdrawal of thir

care, those children would have died and they wouldn’t have been

inheriting any property. So I suppose you could say that the intervention of the Federal law in making clear that those children had

a claim to medical care and protection affected the kinds of people

who were going to be around to inherit property.

It’s in the same way now. The problem involves the willingness

of people to shift the protections of the law, to remove them from

35

whole classes of beings. Its an ancient device of simply shifting the

labels. It’s not a snark, it’s a bojum. It’s not a child, it’s a fetus

marked for termination.

Mr. WATT. But if you’ve got some name for them already, what

good is it to add another name, another word?

Mr. ARKES. It’s not whether we have——

Mr. WATT. If it doesn’t change anything, what good is it? If it

does change something, then shouldn’t we at least know what it

changes? That’s——

Mr. ARKES. Well——

Mr. WATT. That’s the only point I’m trying to make, and——

Mr. CHABOT. The gentleman’s time——

Mr. WATT. I’ll be happy to yield back my time.

Mr. CHABOT. Thank you. The gentleman’s time has expired.

The gentlelady from Pennsylvania, Ms. Hart, is recognized for 5

minutes.

Ms. HART. Thank you, Mr. Chairman. I want to commend you

and the others who have worked to bring this bill before us.

As obviously one of the sponsors of the legislation, I recognize the

need for it and I am pleased to see Ms. Stanek sticking it out with

us to make sure that that happens.

I have a question, actually. I’m not sure if it was asked since I

was out of the room. But, Dr. Bowes, I happen to be a liberal arts

college graduate, so my friends are either physicians or attorneys.

I am the latter. Not being a physician, I would like you to describe

for me how a decision is made upon the birth of a premature infant

who’s on that cusp, of how and when you provide care.

Dr. BOWES. Well, in most cases, there are a number of things you

can assess about an infant when it is born, and there has been

quite a debate in neonatal circles and obstetrical circles about how

to do the immediate assessment and how to behave in that setting

when the baby—immediately after the baby is born, and it has—

although there is not complete agreement on it, there is general

agreement that you ought to provide resuscitation for the infant if

there is any doubt, and then make a decision at a later time if that

resuscitation is being successful and the infant will survive.

Now, at 20 weeks gestation, survival just does not occur, so it’s—

if we know for sure that the baby is 20 weeks gestation and, say,

weighs 250 grams, the likelihood of survival is essentially zero, so

you would not resuscitate that infant, you would not put it

through—even though it might show the signs of life.

At 23 weeks or 24 weeks gestation, then applying those methods

of resuscitation would allow those babies who are going to survive

to show their colors in the next two or 3 days. Those who will not

survive, the resuscitative efforts will eventually show themselves,

and that eventually is usually in a few hours, to not be successful.

So you don’t make the decision instantaneously, and I think

that’s the point I was trying to make. The infant is alive, it deserves that resuscitation, and then the decision is made later.

Ms. HART. Okay. The 20-week-old infant who is alive,——

Dr. BOWES. Yes.

Ms. HART [continuing]. On occasion is obviously going to get the

resuscitation; am I not correct?

36

Dr. BOWES. I would say in the United States at this time with

the level of our technology what it is, those babies would not be

resuscitated—— Ms. HART. They would not.

Dr. BOWES [continuing]. Because they would not respond to resuscitation and live. In other words, that care is futile, that is futile

care.

Ms. HART. Does this bill change anything regarding the 20

weeks, then?

Dr. BOWES. No.

Ms. HART. Okay. So—— Dr. BOWES. What I was trying to make the point in my testimony

is that that is a medical decision based on our experience with 20-

week babies and the resuscitative technology that we have.

Ms. HART. So it’s a medical decision based on scientific experience?

Dr. BOWES. Scientific data and the scientific experience, and I

don’t think this bill would change that. It would allow physicians,

nurses, families, to say, look, at 20 weeks, that’s futile care—— Ms. HART. It just doesn’t happen.

Dr. BOWES [continuing]. And we’re not obliged to provide futile

care.

Ms. HART. Okay. But for the child who would be a couple weeks

older, then it is, and then the medical judgment is used basically,

when in doubt, resuscitate and then wait and see—— Dr. BOWES. When in doubt, resuscitate.

Ms. HART [continuing]. What happens. Okay.

Dr. BOWES. And that is—that does not—that does not require

that that care be carried on indefinitely.

Ms. HART. Right.

Dr. BOWES. If it’s clearly not being helpful, if the infant isn’t responding, then you can stop that care.

Ms. HART. Right. And everyone accepts that,—— Dr. BOWES. Yes.

Ms. HART [continuing]. I believe.

Would the reason by which that child is born make any difference, then, to you if you were the person in the room at the

time?

Dr. BOWES. In other words, if it was—— Ms. HART. Like if it was induced labor——

Dr. BOWES [continuing]. Born as a result of an abortion.

Ms. HART [continuing]. Because the mother was—if it was induced labor because the mother was in distress for other reasons

or induced labor because the mother was seeking an abortion, it

wouldn’t make any difference.

Dr. BOWES. It shouldn’t make any difference, no. But I think this

is the point that Professor Arkes was making. The new Supreme

Court—or the court decisions suggest that the mother’s intention

does affect how you treat the child. I don’t think that—I think

that’s the danger,—— Ms. HART. Okay.

Dr. BOWES [continuing]. Is that the intent of the mother of the

baby living or dying is the crucial factor. I think it’s whether the

child can survive.

37

Ms. HART. Then we’re fortunate now to have it be clarified in

law.

Dr. BOWES. Yes. And I think that’s what this law does.

Ms. HART. Good. Okay. Thank you very much.

Thank you, Mr. Chairman.

Mr. CHABOT. I thank the gentlelady for making that point. I

think that really clarified a lot and I thank her for doing that.

I would like to acknowledge the presence of the gentleman from

Texas, Mr. Smith, also for being here this afternoon. It’s my understanding he has no questions.

It’s the Chairman’s intention to go immediately to a markup. The

Ranking Member had one additional question, so without objection,

we are going to acknowledge him to ask that question.

Mr. NADLER. I thank the Chairman.

I want to ask Dr. Bowes, you’re an obstetrician or a

neonatologist?

Dr. BOWES. I’m an obstetrician.

Mr. NADLER. Okay. Good. Then the following question: The definition of a child that’s born alive in this bill says someone who has

experienced the complete expulsion or extraction from his or her

mother—in other words, he’s separate from the mother now, he or

she—who, after such expulsion or extraction, breathes or has a

beating heart, pulsation of the umbilical cord, definite movement of

the voluntary muscles regardless, et cetera.

The question I have is this, to the accuracy of one part of that,

the pulsation of the umbilical cord, can you have a baby who is not

alive but the umbilical cord will pulsate because of the placenta?

Is that a real situation?

Dr. BOWES. No.

Mr. NADLER. Why not?

Dr. BOWES. No. The reason the umbilical cord pulsates is as a

reflection of the baby’s heart beating. The blood vessels are coming

from the baby—— Mr. NADLER. The umbilical cord can’t pulsate because of the

mother’s heart beating?

Dr. BOWES. No. No. The umbilical cord is not attached to the

mother’s circulation in any way. It’s separate from the mother’s circulation. And so the pulsation of the umbilical cord—— Mr. NADLER. Is because the baby’s heart is beating.

Dr. BOWES. Yes. That’s right.

Mr. NADLER. So if that’s the case, why would you want—the umbilical cord will only pulsate if the baby’s heart breathes—beats.

Dr. BOWES. That’s correct.

Mr. NADLER. So why do you have it as a separate thing in here?

Why would you list it as a separate criteria than the baby’s heart

beating? Certainly if the baby’s heart beating is——

Dr. BOWES. Because when a baby is born, it’s easy to see if

the——

Mr. NADLER. I see.

Dr. BOWES [continuing]. If the umbilical cord is pulsing. You may

not have a stethoscope with you that moment, but pulsation of the

umbilical cord is unequivocal evidence that the baby’s heart is

beating.

Mr. NADLER. Baby’s heart is beating. Thank you very much.

38

Mr. CHABOT. I thank the gentleman.

And I would just note that this definition came from the World

Health Organization that they accepted 15 years ago, and many

States use the same definition and that’s why we used it.

At this point, I want to thank all the witnesses for their testimony and you’re excused, and we’re going to move immediately to

the markup. We really do appreciate your testimony and your

being here.

[Whereupon, at 2:56 p.m., the Subcommittee proceeded to other

business.]

(39)

A P P E N D I X

MATERIAL SUBMITTED FOR THE HEARING RECORD

40

PREPARED STATEMENT OF ALLISON BAKER, RN, BSN

In August of 1998 I began working in a high risk labor and delivery unit at Christ

Hospital and Medical Center in Oak Lawn, Illinois. When I was hired, I was informed of a procedure called ‘‘therapeutic abortion’’ which was performed in the

unit. This procedure was reserved for babies with particular conditions such as

Down’s Syndrome, Spina Bifida, Potter’s Syndrome and many others. It was explained to me that in these cases, the mother would have an induced labor to expel

the fetus in order to discontinue growth and life. This was an elective procedure and

the patient was to be informed of all the details it involved.

Between August of 1998 and August of 1999, I witnessed three particular cases

of therapeutic abortions at Christ Hospital first hand. 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 the 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 ° hours he maintained a heartbeat, and then finally expired.

The second case involved a couple who had requested a therapeutic abortion for

their 20 week fetus with Spina Bifida. My shift started at 11:00 PM, and the patient

delivered her fetus about 10 minutes before I took her as a patient. During 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 fetus, I held the fetus in my arms until it finally expired.

The third case occurred when a nurse with whom I was working was taking care

of a mother waiting to deliver her 16 week Down’s Syndrome fetus. Again, I walked

into the soiled utility room and the fetus was fully exposed, lying on the baby scale.

I went to find the nurse who was caring for this mother and fetus, and she asked

if I could help her by measuring and weighing the fetus for the charting and death

certificate. When I went back into the soiled utility room, the fetus was moving its

arms and legs. I then listened for a heartbeat, and found that the fetus still was

alive. I wrapped the fetus and in 45 minutes the fetus finally expired.

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COPYRIGHT 1999 CHICAGO SUN-TIMES, INC.

CHICAGO SUN-TIMES

SEPTEMBER 29, 1999, WEDNESDAY, LATE SPORTS FINAL EDITION

SECTION: EDITORIAL; Pg. 49

LENGTH: 681 words

HEADLINE: A new low in heartlessness

BYLINE: Dennis Byrne

BODY:

The argument that abortion doesn’t kill a ‘‘person’’ centers on the assertion that

a fetus isn’t a person until it is born.

So what do you call an abortion procedure in which the fetus is born alive, then

is left to die without medical care? Infanticide? Murder?

Most people would recoil at just the thought of such a gruesome, uncaring procedure, but it is practiced at at least one Chicago suburban hospital. When I called

Christ Hospital and Medical Center in Oak Lawn, I frankly expected a denial that

it uses the procedure, but instead a spokeswoman explained it is used for ‘‘a variety

of second-trimester’’ abortions when the fetus has not yet reached viability. That’s up to 23 weeks of life, when a fetus is considered not yet developed enough to survive on its own.

Instead of medical care, the child is provided ‘‘comfort care,’’ wrapped in a blanket

and held when possible. The procedure is chosen by parents and doctors instead of

another method in which the fetus is ‘‘terminated’’ within the womb by, for example,

injection with a chemical that stops the heart. Under Christ Hospital’s procedure,

which the spokeswoman said is used at some other area hospitals, the abortion is

induced with prostaglandin, a drug that relaxes the cervix and allows for the fetus

to be born.

Pro-life advocates have reacted with incredulity, calling the procedure ‘‘live birth

abortions.’’ They wonder why, if a death certificate is required, a birth certificate

isn’t. They wonder how such a brutal procedure can be used at a faith-based hospital named after Christ. One hospital nurse has complained that babies are sometimes are left to struggle on their own for up six or seven hours until death frees

them from their torment.

She said a newborn, with no one around to hold it, once was left to die in a soiled

linen closet—a charge the hospital denies. The hospital says none of the abortions

are ‘‘elective,’’ but are done only to protect the life or health of the mother or when

the fetus is nonviable due to extreme prematurity or lethal abnormalities. The

nurse, Jill Stanek, says she has seen some elective abortions done on newborns

whose physical or mental defects are deemed incompatible only with ‘‘quality of life.’’

Pro-life advocates have picketed the hospital. Karen Hayes, Illinois state director

of Concerned Women for America, has asked Attorney General Jim Ryan to determine whether the practice violates the Illinois Hospital Licensing Act and the

Abused and Neglected Child Reporting Act. Ryan in turn asked the Department of

Public Health to conduct an inquiry into the practice. A Health Department spokesman said the law prohibits them from discussing the matter until a new law takes

effect Jan.1.

Frankly, I wonder whether the procedure is any more brutal than other abortion

procedures, involving the cutting or poisoning of the fetus before it is born. The

fetus, according to studies, can feel pain. Those who consider themselves compassionate ought to be appalled at the idea that any death—inside or outside the

womb—is a suitable, civilized solution.

But the procedure itself raises deeper questions. First, there’s the legality. It

should be up to the attorney general and state’s attorney to determine whether the

procedure is infanticide. Read Roe v. Wade upside down and sideways, and I find

nothing in it that legitimizes the killing of a born child. If the law is unclear, the

Legislature should make it clear.

Looming larger is the moral question. Partial-birth abortions supposedly are acceptable because a small part of the child still remains in the birth canal, and thus

is considered unborn when it is killed. The Christ Hospital case now makes it clear

that legal rights and protections don’t even begin with birth, as many pro-choice advocates have staunchly argued. That even a live, born human being has no right

to life because someone else has decided its chances at life are slim. Or that its life

won’t be worth living.

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My only question to them is: To what hell is this leading us?

COPYRIGHT 2000 CHICAGO TRIBUNE COMPANY

CHICAGO TRIBUNE

OCTOBER 2, 2000 MONDAY, CHICAGO SPORTS FINAL EDITION

SECTION: Metro Chicago; Pg. 1; ZONE: N

LENGTH: 814 words

HEADLINE: CATHOLICS CONDEMN CLINIC VIOLENCE; PARISH SHOCKED

BY CHARGES AGAINST PRIEST

BYLINE: By Mickey Ciokajlo, Tribune staff writer. Tribune staff writer Vanessa

Gezari contributed to this report.

DATELINE: ROCHELLE, Ill.

BODY:

Parishioners at St. Patrick Catholic Church and community residents say they

know Rev. John P. Earl as a friendly and outgoing pastor with a genuine interest

in children and a fine sense of humor that frequently finds its way into his sermons.

It’s a much different image than that of a priest charged with wielding a pickax

and smashing his way into a building that houses a Rockford abortion clinic. ‘‘Quite honestly, when I heard about it, I didn’t believe it,’’ said Susan Metzger,

43, a longtime member of the Rochelle parish. ‘‘It didn’t sound like him at all.’’ Metzger, who teaches religious education to 6th graders at St. Patrick, said she

had never heard Earl, 32, mention abortion in his sermons.

And though she says she opposes abortion, she doesn’t condone violence. ‘‘I don’t believe that breaking into a clinic is the answer for this,’’ she said.

Earl, pastor of St. Patrick since June 1999, was charged Saturday with burglary

and felony damage to property.

Police in Rockford, about 30 miles north of Rochelle, said Earl broke into a building at 1400 Broadway that houses the Northern Illinois Women’s Center, an abortion clinic.

He drove his car into a garage door behind the building about 8 a.m. and then

chopped through wood doors, police said. He was arrested after the building’s shotgun-toting owner called police and confronted Earl.

The clinic was closed at the time. No one was injured.

Earl was released Saturday from the Winnebago County Jail after posting $10,000 bail.

Earl was not believed to have been particularly active in the anti-abortion movement in the Rockford area, and police in Rockford declined to discuss a motive.

But Catholics in the Rockford diocese had been asked to observe ‘‘a respect life’’ week, and abortion protests had been scheduled for Sunday in Rockford and elsewhere. The so-called life chains, held every year on the first Sunday in October, are

occasions for prayer and recognition of the sanctity of human life, organizers say.

Emotions among those who oppose abortion had been running high after the decision last week by the federal Food and Drug Administration to approve the French

abortion pill RU-486.

About 800 abortion opponents formed a human chain for about an hour Sunday

afternoon along a 2-mile stretch of Alpine Road in Rockford, between Holy Family

Catholic Church and a commercial strip on East State Street.

Protest organizers said Earl had not participated in demonstrations and prayer

vigils held weekly in front of the clinic. And though some said they shared his passion, they condemned his methods. ‘‘I don’t believe terrorism ever gets a point across,’’ said Mary Ann Allen, 52, a

Rockford resident who was participating in the anti-abortion chain.

Kevin Rilott, 36, a Rockford resident who has been involved in organizing the

chain for the past decade, said many in his group were unhappy about the incident. ‘‘All the pro-life people can’t believe it,’’ he said. ‘‘They’re so upset about it. It

makes us look like radicals.’’ At a similar event in Oak Lawn, several hundred anti-abortion demonstrators

lined the sidewalks around Christ Hospital, singing and reciting rosaries.

‘‘We’re against anything that would kill life at any stage, whether it’s at the first

moment of conception or a 95-year-old on oxygen,’’ said Rose Marie Gurski, 71, of

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Crestwood. ‘‘We believe God is in charge of life and death, and I feel that this is

what I can do.’’

Many said they don’t support using violence to advance the anti-abortion movement.

‘‘I think, biblically speaking, it’s a sin to go the route [Earl] went,’’ said Jill

Stanek, the Christ Hospital labor and delivery nurse who complained about the hospital’s abortion policy last year, prompting an inquiry by the Illinois Department of

Public Health.

Since last fall, Christ Hospital has been a target of protests over a labor-induction

abortion procedure performed there in which fetuses can survive outside the womb

for an hour or more.

Last October the hospital’s parent company, Advocate Health Care, changed its

policy and now abortions are done only in cases of rape or incest, lethal fetal anomalies or when the life or health of the mother is threatened.

But the hospital still uses the labor-induction procedure and has been the scene

of several protests this year, Sue Reimbold, a hospital spokeswoman, said.

Earl appears to have been well-liked in Rochelle, and his arrest has left a ripple

in the community that touched non-Catholics too.

Brenna Muncaster, 31, said Earl often played with neighborhood children at the

parish school playground near her home.

But her 6-year-old daughter is now frightened after seeing a television report on

Earl’s arrest.

‘‘She saw this on the news and she was really freaked out about it,’’ Muncaster

said. ‘‘It’s a horrible thing. He’s a terrible example for children in the community.’’

LOAD-DATE: October 2, 2000

JILL L. STANEK

11664 SUNDANCE TRAIL

MOKENA, ILLINOIS 60448

HOME PHONE 815–464–0984

EMAIL JILLLYNN22@AOL.COM

April 23, 1999

Dr. Steven Ambrose, Chair, OB-GYN Department

Reverend Dr. William Baugh, Vice President, Religion & Health

Christina Ryan, RN, Director, Women & Infant’s Health Services

Dr. Melvin Wichter, Chair, Ethics Committee

Christ Hospital & Medical Center

4440 West 95th Street

Oak Lawn, Illinois 60453

Dear Christ Hospital Executives:

When I graduated from nursing school in 1993, Christ Hospital was the only hospital that I applied at to work. I focused my attention professionally on Christ because I felt it had the best reputation medically in the south suburbs and because

I was confident that no elective abortions were performed here since it is a faith

based hospital. I was so sure of the latter that when I transferred to Labor & Delivery in September 1995, it never even occurred to me to ask about hospital policy

on abortion. I was just certain that this wasn’t an issue.

You can thus imagine my dismay when I came to work one evening to learn in

report an abortion was being performed in the department. This abortion was being

done because the baby had Down’s Syndrome It was being termed a ‘‘therapeutic’’

abortion. I learned that abortions of this type are performed at Christ every so

often, and I have since witnessed several other abortions here. However, I have

never observed a ‘‘therapeutic’’ abortion in the true sense of the term, that being

to save the life of the mother. The abortions I have observed have been elective

abortions, performed due to defects in the baby such as Down’s or any one of a number of chromosomal abnormalities, or physical defects which have been decided to

either be incompatible with life or incompatible with a ‘‘quality’’ life.

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It is L&D policy that a nurse does not have to receive assignment of a patient

in the process of having an abortion performed if the nurse’s moral or religious belief disallows it. However, nurses such as myself who do indeed refuse to take these

patients are still implicated. I have personally witnessed two babies who have been

aborted alive (and this is actually not an unusual occurrence). Neither time did the

mother nor father want to hold and care for the baby until s/he passed from this

life. Department policy in this case is to provide comfort care to the child until s/

he dies. Once, I held the aborted baby in a warm blanket for the 45 minutes it took

for him to die. The other time a co-working Support Associate did the same. Can

you imagine the revulsion of this? The only situation that could be worse was as

an RN colleague related to me, a night when she did not have the time to personally

care for one of these infants. Since we have no place designated to keep these babies, this one had to be left to die alone in the Soiled Utility Room.

The abortion issue is huge and complicated. There are several angles I could discuss at this point in my letter, but I would like to limit my scope to comparing the

Christ Hospital Mission Statement to our current abortion policy. The Mission

Statement is as follows:

‘‘The mission of Advocate Health Care is to serve the health needs of individuals,

families and communities through a wholistic philosophy rooted in our fundamental

understanding of human beings as created in the image of God.’’

This Mission Statement is in harmony with Biblical Scripture. Probably the most

poignant passage on the subject of humans being special and unique from inception

is Psalm 139:13–18:

‘‘You alone created my inner being. You knitted me together inside my mother.

I will give thanks to you because I have been so amazingly and miraculously made...

My bones were not hidden from you when I was being made in secret, when I was

being skillfully woven in an underground workshop. Your eyes saw me when I was

only a fetus. Every day of my life was recorded in your book before one of them had

taken place.’’

Christ Hospital bears the name of Jesus and is spiritually overseen by no less

than two Christian denominations, the Lutheran and United Church of Christ

faiths. I appeal to the leaders of these faiths as well as hospital management who

oversee the ethical operations of Christ Hospital to change our current abortion policy.

The aforementioned aborted children may indeed have been destined to die, but

I believe it is incongruent with our Mission Statement to intervene directly to take

their lives. Rather, we should teach parents alternative approaches and frames of

mind to bringing defective children into the world which would be consistent with

our medical ethics, our Mission Statement, and our hospital’s strong Judeo-Christian base. This approach would be to encourage treatment of these children as imperfect but still as special as you or I, as we are all created in the image of God.

I am aware of a couple to whom abortion was recommended because of a congenital

defect in their child. They chose, however, to carry their baby to term and were able

to hold and love her for the 20 minutes that she lived. This is an example of the

guidance a Christian hospital should give.

I cannot speak to the anguish and lifestyle upheaval parents must endure who

deliver defective babies. I cannot speak to the anguish and physical pain an imperfect human being may have to endure. I cannot speak as to why some babies are

born only to die. Only God can speak as to how and why He does things in His infinite wisdom. ‘‘Who gave humans their mouths? Who makes humans unable to talk

or hear? Who gives them sight or makes them blind? It is I, the Lord!’’ (Exodus 4:11)

We cannot take his place.

Our Mission Statement is prominently displayed in various places throughout the

hospital, one location being above our front entrance doors. I must walk through

those doors each evening that I come to work. It is very difficult for me to do so

at this time.

Thank you in advance for your consideration.

Yours very truly,

Jill L. Stanek

Registered Nurse, Labor & Delivery

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CC:

Dr. William Adair, President of Medical Staff, Christ Hospital

Mary Francis, Perinatal Support Coordinator

Andrea Miller, RN, Manager of Clinical Operations, Women’s Health

Coletta Neuens, Chief Executive, Christ Hospital

Reverend Gerald Oosterveen, Director of Pastoral Care

Sue Riegel, RN, Assistant Manager of Clinical Operations, Labor & Delivery

Carol Schneider, Chief Executive, Christ Hospital

Dr. Scott Strote, Residency Program Director, OB-GYN

JILL L. STANEK

11664 SUNDANCE TRAIL

MOKENA, ILLINOIS 60448

HOME PHONE 815–464–0984

EMAIL JILLLYNN22@AOL.COM

July 11, 2001

The Honorable Steve Chabot

U.S. House of Representatives

Judicial Subcommittee on the Constitution

129 Cannon House Office Building

Washington, D.C. 20515

Dear Congressman Chabot:

I am writing in response to Reverend Larry Easterling’s letter to you dated June

18, 2001. The topic under discussion is a type of abortion procedure performed at

Christ Hospital in Oak Lawn, Illinois, that often results in babies being aborted

alive. I am a Registered Nurse who has worked in the Labor & Delivery Department

(L&D) at Christ Hospital for the past 5-1/2 years.

Reverend Easterling infers in his letter that Christ Hospital only aborts babies

who are fatally ill when he states, ‘‘. . . in calendar year 2000 . . . terminations

were necessitated by unfortunate circumstances that occurred in the development

of the fetus in the womb. No terminations were due to rape or incest. . . . None

of these infants could have lived outside the womb.’’ I find these inferences not only

inaccurate but also misleading. Just because no baby was aborted at Christ Hospital

last year because of rape or incest was mere happenstance, because Advocate’s

(Christ Hospital’s parent company) written policy allows abortion for rape, incest,

‘‘selective reduction’’ in cases of multiple gestation, and for life or health of the

mother as well as for fatal fetal anomalies. It is clear that no exception is made to

protect healthy babies from being aborted at Christ Hospital. There were at least

two healthy babies aborted at Christ Hospital last year for ‘‘health of the mother’’

issues. I, myself, admitted one of these two mothers to the floor. The other healthy

baby I am aware of was aborted alive and lingered for 2-1/2 hours without ever

being seen by neonatal personnel. She was kept in L &D and rocked until she died.

That Reverend Easterling clearly understands these pregnancies and abortions to

be ‘‘complex,’’ ‘‘complicated,’’ ‘‘tragic,’’ ‘‘devastating,’’ and ‘‘most difficult and painful,’’

underscores the irresponsibility of another Christ Hospital policy that he fails to

mention in his letter to you that allows minor girls to abort without their parents’’

input or consent (Advocate Systemwide Policy on Pregnancy Termination dated 10/

14/99). I wish that Reverend Easterling would tell you how many girls under the

age of 18 have aborted at Christ Hospital during the last few years.

Reverend Easterling’s statements, ‘‘Sometimes, a fetus that shows signs of life is

delivered. Families know to expect this and often welcome it as an opportunity briefly to hold their baby . . . , are, again, incorrect. During last year’s U. S. House

Born Alive Infant Protection Act hearing, Allison Baker, an RN who worked in L&D

at Christ Hospital for one year, testified that, ‘‘During 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 nurse to both the mother and

fetus, I held the fetus in my arms until it finally expired.’’ Two other nurses have

told me of instances when their patients did not know that their baby was going

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to be aborted alive. One of these patients had to be tranquilized after delivery when

her baby was surprisingly born alive and also did not display the external physical

defects that she had been told he would have. Finally, again based on my knowledge

as an employee who actually works in Christ Hospital’s L&D, Reverend Easterling

is also inaccurate when he states, ‘‘whenever a ‘live’ birth occurs as a result of a

pregnancy-termination procedure, a physician from our pediatric team assesses the

neonate and issues appropriate medical orders.’’ Pediatric personnel are not called

to assess all babies who are born or aborted alive at Christ Hospital. I verified my

observations with a nursing team leader on the floor who told me that NICU is only

notified when staff ‘‘thinks the baby may be viable.’’ Furthermore, even if Reverend

Easterling’s statement were true, requesting ‘‘a’’ physician from the pediatric team

is not the same as requesting the entire team. The four-member team is comprised

of the neonatologist, pediatric resident, pediatric nurse, and respiratory therapist.

This entire team would be called for the birth of a wanted or assuredly viable compromised neonate. So, calling one member of the team does not provide equal medical attention to live aborted babies. Also, it is my understanding that if ‘‘a physician’’ is indeed called over to assess a live aborted baby, it is a pediatric resident

who is sent, and not an attending physician, which is also no minor point.

Congressman Chabot, thank you for the opportunity to respond to Reverend

Easterlng’s letter. I respectfully request that my letter also be entered into the Congressional Record.

Yours very truly,

Jill L. Stanek, RN

CC:

Reverend Larry Easterling

The Honorable William Lipinski

The Honorable Peter Fitzgerald

The Honorable Richard Durbin

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PREPARED STATEMENT OF MATTHEW G. HILE

Mr. Chairman, Honorable Representatives, Staff and visitors:

My name is Matthew Hile. I hold a Ph.D. in Clinical Psychology and am a Research Associate Professor at the University of Missouri-Columbia Medical School.

I sit on the Executive Committee of the American Psychological Association’s Division of Mental Retardation and Developmental Disabilities and am a member of the

Medical Ethics Committee of the St. Louis Children’s Hospital.

However, today I come to offer testimony concerning the Born Alive Infants Protection Act (H.R. 2175) as the father of Amelia Meliss Hile.

Fourteen years ago, I kept a very personal journal. A journal of the brief days

of our daughter’s life. A time of suffering for our daughter, Amelia, as well as

suffering for her parents, grandparents and all that knew them.

My wife and I very much wanted a baby. We were, and still are, very much in

love, were out of school, had been married 10 years and had bought our first home.

This baby received ideal prenatal care. My wife lost 10 pounds before she conceived,

ate two vegetables every night for dinner, drank absolutely no alcohol, very little

caffeine, and we went to the obstetrician regularly. We had readied the nursery with

curtains and crib, read books on parenting, received gifts from friends and family,

and dreamed about our child’s future. The grandparents to be called regularly and

made plans to come visit the new arrival, who would be the first grandchild on either side of the family.

The following has been excerpted from my journal:

June 17th: Last Thursday we had an ultra sound, it always makes me nervous

to have all those people bustling about, first one tech, then another, then a doctor—

2 hours under the scan. We thought that there was just some difficulty in getting

the precise measurements . . .

June 18th: Friday morning a call from the OB, get in for a feta scope now. That

afternoon we have another sonogram with the head of the genetics department. He

came into the room with a tech and our pediatrician. He begins talking and showing

us things on the monitor. He is concerned about the baby’s presentation, why was

it in this position—he goes on to show the curved spine, the splayed hips, the twisted legs and feet, the oddly bent hands and the huge amounts of amniotic fluid. He

says we are in for a lot of difficulties and suggests that our baby may not survive.

He suspects central nervous system involvement. Through our tears, we call the

grandparents. Through their tears they try to comfort us.

Meetings with physicians from Children’s Hospital. With the Regan administration and the Baby Doe decision on our minds, we need to understand what that hospital can and cannot do. We need to be clear about our desire to avoid heroic measures. We fear having our role as parents and protectors of our child’s welfare

snatched from our hands.

June 25th: My wife labors for 13 hours before a c-section is performed. The operating room filled with Drs, nurses and technicians. At 11:14 the baby is born. Simon

or Amelia? There is no noise, no crying. They are working on him or her. Silence

in the room. The silence is deafening. I let go of my wife’s hand to see the child’s

twisted little body. It is a girl. I watch them try to start an IV in her little twisted

hand, but I cannot watch and turn back to cry with my wife. I go back and forth

to touch my daughter as my wife’s incision is closed. They wheel Amelia out, taking

her to Children’s Hospital.

At 3 am I take a long walk through corridors that will soon be familiar. Up to

the 5th floor. I am shown how to wash and gown and then enter the unit. The nurse

introduces herself and shows me how they have hooked up Amelia. Heart rate, respiration, a temperature probe to turn the lights on and off, and an oxygen helmet.

Wires, tubes, lights, and alarms are everywhere. I touch Amelia and look, wish her

goodnight and gently kiss her. I feel strangely better for having wished her good

night.

June 26th: I visit Amelia a couple of times today. More importantly I get to hold

her in my arms. This poor twisted body. I sit and rock her and cry and cry. I am

so sorry for her, for us, but mostly for Amelia. As I hold her I feel a great warmth;

a feeling washes over me that was unexpected. Until now, she was a potential but

not a person to me. Now she is still a potential, but also a person in need of care

and nurturing. Someone who needs our intelligence and energy if she is going to

survive and someone who needs these same qualities if she is going to have but a

little time in this world. She is a person now and it is, in part, her responsibility

to survive and thrive. We will do what we can, but it is up to her.

June 27th: Mother and daughter have the opportunity to bond. I take pictures

and cry; sad about the event I had hoped to be celebrating.

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1. The testing begins. Cat scan—abnormal right side brain development. This

rings in my head again and again—resounding in its implications. Right

side, pattern recognition. Doctor says it may be that she could not recognize

high notes or not appreciate the world around her. Not be able to read, listen

and understand music or recognize her mother. More tests. We do have brain

involvement. The geneticist was right.

June 28th: My wife is home and my daughter is not. That is not the way it is

supposed to be.

1. Amelia has periods where she stops breathing and her heart rate drops. Her

lips become blue and her skin gray. What if she dies? What if she doesn’t

die? Do we have the right to subject this child to tubes, wires, lights, and

tests? Tests that help diagnose but do nothing to help her. My wife pumps

breast milk that our daughter is fed with a tube. Our daughter cannot swallow. She cannot close her eyes. Her arms and legs are put in splints that

do nothing.

July 9th: The nurse calls cheerily, ‘‘Oh she is doing very well, we did have to bag

her once and her feed tube is blocked and she had two periods of hear rate stopping,

but she is doing great!’’ This is getting more and more ludicrous. We feel something

must be done but we are trapped. She cannot be released to another unit because

she is not stable, she cannot die because they keep saving her life, we cannot stop

treatment because they won’t let us, we have to pay because we are responsible,

and we cannot do anything because we are not responsible. We are told it is a medical decision. I wonder about the increased brain damage through these increasing

periods of anoxia.

1. More tests—brain stem abnormalities with higher cortical function areas

also having irregularities. No gag response. Nothing is getting better. Doctor

says give her more time. We trust him.

July 14th: We held, cuddled, dressed, and photographed Amelia. She looks a little

better—better color. The next day she has two bad heart rate drops, lots of aspirations and needed a transfusion in the night. The following day she is better and

worse. She moved a little but was much slower to recover from her heart rate drops.

At those times she dies and technology brings her back.

July 18th: We have another meeting with the staff. One young doctor wants to

put her on a ventilator. One with more experience says he would not ventilate—

medically, he says, that would not be in her best interest. We are given good advice,

not to wish away our time with her as it may be very brief in the grand scheme

of things.

1. Another week goes by. Another meeting. The decision is made by them to

begin to push Amelia to see how much she can do. Since she cannot swallow

they decide to suction her only every four hours and not every hour. When

I return at 9pm she is laying on her side. She had spittle on her towel and

it was apparent that she had not been suctioned. With the assistance of the

nurse I got her up and rested her upright on my chest. I started reading

Winnie the Pooh and the alarms went off. Her respiration dropped and her

heart rate plummeted. She was gray, grayer than I had ever seen her before.

A nurse came by to check her. Other nurses walked by, obviously concerned—some wore anti-abortion red roses on their nametags. Amelia was

suctioned, and oxygen passed by her face. The nurses say they were never

taught how to NOT treat someone.

July 25th: We become angry in a meeting with the medical staff. What are you

doing making her suffer like this?? You have nothing to do to help her, why do you

make her go through this over and over again? Why can’t you let her go? If the

nursing staff cannot do this we can!

July 26th: After being taught how to gavage feed Amelia, we are allowed to take

our daughter into a room by ourselves. We suction, feed, and dress her. We have

never been able to take her for a walk in the park, she has never been in the fresh

air, and has never seen a tree. We play music, read Winnie the Pooh and hold her

up to the window to see trees through her unblinking eyes. We cry. We choose not

to suction her again, to let her go. My wife holds her baby to her breast but she

is unable to suckle. We continue to feed her pumped breast milk. Medical staff

checks on us throughout the day. After the 10 pm feeding Amelia is looking blue.

Amelia lay silently in my wife’s arms. After 5 minutes I tried but could find no

heart beat. After 10 minutes I listened with a stethoscope and could hear nothing.

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We were still, afraid to move her—but Amelia’s suffering was over. Her spirit had

flown to a better place.

Today I am here to suggest that you have the power to make the journals of others in our position have a very different and even more painful ending. It could read

that Amelia suffered another month, or another year, before her death. As it was,

Amelia lived, in her 31 days, to the fullness of her life. I urge you to leave these

agonizing decisions to those most involved, the physicians and families who care

deeply about their children.

PREPARED STATEMENT OF F. SESSIONS COLE

Mr. Chairman, Honorable Representatives, Staff, and spectators. My name is

Francis Sessions Cole, and my family, including our two daughters, ages 17 and 15,

and my wife of 29 years resides in St. Louis, Missouri. I offer testimony concerning

Representative Chabot’s ‘‘Born Alive Infants Protection Act of 2001’’ (H.R. 2175) as

a physician whose specialty is care of newborn infants. My testimony is not sponsored by any organization. I completed my pediatric residency training at Boston

Children’s Hospital and my specialty training in caring for newborn infants in the

Joint Program in neonatology at Harvard Medical School. Since my Board certification in Pediatrics in 1981, I have cared for more than 10,000 newborn infants directly, and I currently have administrative responsibility for approximately one half

of all the babies born in St. Louis annually (approximately 13,000 babies). I also

have an active clinical practice that focuses on caring for babies whose transition

from womb to world is complicated by one or more problems like prematurely, birth

defects, infections, or problems with the afterbirth or placenta. I routinely encounter

babies whose problems place them on the edge of viability.

The language of H.R. 2175 would impose on doctors and parents a universal definition of ‘‘life’’ or ‘‘alive’’ which is, in my experience as a neonatologist, inconsistent

with the harsh reality presented by a number of circumstances. The fact is that the

indicia identified in the bill—breathing, or a beating heart, or pulsation of the umbilical cord, or definite movement of voluntary muscles—are not themselves necessarily indicative of life or continued viability. Frequently, the heartbeats of infants

will be maintained by medicines, not nature; their breathing may be present but ineffective as they die; they may move voluntary muscles during the dying process.

As a physician who cares for ill newborn infants, I feel that I have the greatest

practice in medicine, because my practice permits me to participate in miracles everyday. Thanks to significant advances in technology over the last 20 years, babies

whose parents could have been offered no hope can now see their babies survive

and, for the most part, exceed both their parents’ and their doctors’ expectations as

they develop. Unfortunately, even today’s most advanced medical science is still a

long way from being able to offer every sick infant a reasonable chance for survival.

In fact, in our neonatal intensive care unit, approximately 10% of the infants do not

respond to advanced technology and pass away. These deaths result from accidents

of nature that are no one’s fault, and they are excruciatingly difficult for parents,

doctors, and nurses. Frequently, the emotional pain of the decision to terminate

treatment in such cases is compounded by the fact that the technology that we provide babies requires painful, invasive procedures. When parents and physicians together decide that life support technology is futile for an infant and is only prolonging the pain of the dying process, parents have a moral and legal obligation to

minimize the suffering of their baby, regardless of the pain such a turn of events

brings to them in their loss.

The language of H.R. 2175 will, in my view, significantly interfere with the agonizing, painful and personal decisions that must be left to parents in consultation

with their physicians. Imposing the proposed definition of ‘‘alive’’ or ‘‘life’’ for statutory purposes may cause parents to prolong the medically inevitable dying process

of their infants out of fear that terminating that process might be deemed to be,

for legal purposes, the termination of a life, when in fact all that would be terminated would be the painful process of death. Prolonging treatment in such case

would be not the saving of a ‘‘life,’’ but the prolonging of the pain and suffering of

inevitable death. As a physician whose career has been dedicated to the welfare of

newborns, and especially critically-ill newborns, I urge the Subcommittee not to inject an unnecessary and unrealistic definition of ‘‘life,’’ with all its legal implications,

into the already agonizing and heart-breaking situation faced by parents of infants

in the dying process.

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PREPARED STATEMENT OF GORDON B. AVERY

As a physician and neonatologist with 40 years of practice experience, I write to

express my concern with HR 2175, the ‘‘Born-Alive Infants Protection Act of 2001.’’

My credentials include authorship of a major textbook, Neonatology:

Pathophysiology and Management of the Newborn, the fifth edition of which was

published in 1999 by J. B. Lippincott, Co. I have also been Professor of Pediatrics

for 30 years at the George Washington University School of Medicine and Health

Sciences.

The powerful tools of neonatology (respirators, total intravenous feedings, life support systems, etc.) have reduced neonatal mortality and saved countess infants. But

they are also subject to overuse in futile situations which inflict pain and suffering

on the infant, agony on the families, prolongation of dying, extreme cost and resource utilization, all without changing the fatal outcome. The humane and successful management of these situations requires a delicate balance in decision making,

which has been recognized by the Congress in the amendments to the Child Abuse

Act, the judiciary, including the Supreme Court, and various Administrations. I enclose an article I published entitled ‘‘Futility Considerations in the Neonatal Intensive Care Unit,’’ to illustrate some of these issues.

The current proposed legislation defines as ‘‘born alive’’ any product of conception

with a single muscle twitch or any indication of heart beat, regardless of stage of

development. The term ‘‘born alive’’ is then declared equivalent to ‘‘person,’’ ‘‘human

being,’’ ‘‘child,’’ and ‘‘individual.’’ Presumably every miscarriage, even in the first trimester, would be considered a child and would require a birth and death certificate.

The definitions make no distinction as to whether there is any possibility of survival

or not. Needless to say, rather than clarifying things, this set of definitions will immensely cloud the work of medical personnel and families in determining what

measures are indicated and what would be futile and actually dehumanizing.

For centuries, different terms have been used to denote an embryo, a fetus, a

neonate, an infant and a child. An embryo is pre-viable outside the uterus, and is

in such a rudimentary state of development that a human embryo more closely resembles the embryo of a pig than it does a term newborn of either species. Yet embryos have beating hearts and muscles which can twitch.

A fetus has reached the third trimester and still has much growth and development to achieve before normal birth. However, many such fetuses can be stabilized

and supported after premature birth and even discharged home as infants who can

take their place in families. To blur these distinctions seems to work against tradition, sound medical practice, and the struggle of parents to understand what is facing them and what the practical alternatives are.

I strongly urge you to oppose this measure, which I consider regressive and ill

considered. Thanks for your consideration.

Æ