89–006

107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 107–186

BORN-ALIVE INFANTS PROTECTION ACT OF 2001

AUGUST 2, 2001.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

REPORT

together with

ADDITIONAL AND DISSENTING VIEWS

[To accompany H.R. 2175]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 2175) to protect infants who are born alive, having considered

the same, reports favorably thereon without amendment and recommends that the bill do pass.

CONTENTS

Page

Purpose and Summary ............................................................................................ 1

Background and Need for the Legislation ............................................................. 3

Hearings ................................................................................................................... 14

Committee Consideration ........................................................................................ 14

Vote of the Committee ............................................................................................. 15

Committee Oversight Findings ............................................................................... 15

Performance Goals and Objectives ......................................................................... 15

New Budget Authority and Tax Expenditures ...................................................... 16

Congressional Budget Office Cost Estimate .......................................................... 16

Constitutional Authority Statement ...................................................................... 17

Section-by-Section Analysis and Discussion .......................................................... 17

Changes in Existing Law Made by the Bill, as Reported ..................................... 17

Markup Transcript .................................................................................................. 18

Additional Views ...................................................................................................... 33

Dissenting Views ..................................................................................................... 37

PURPOSE AND SUMMARY

It has long been an accepted legal principle that infants who are

born alive, at any stage of development, are persons who are entiVerDate 11-MAY-2000 10:32 Aug 03, 2001 Jkt 089006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 E:\HR\OC\HR186.107 pfrm07 PsN: HR186
2

1 530 U.S. 914 (2000).

2 220 F.3d 127 (3rd Cir. 2000).

3 Id. at 143.

tled to the protections of the law. But recent changes in the legal

and cultural landscape have brought this well-settled principle into

question.

In Stenberg v. Carhart,1 for example, the United States Supreme

Court struck down a Nebraska law banning partial-birth abortion,

a procedure in which an abortionist delivers an unborn child’s body

until only the head remains inside of the womb, punctures the back

of the child’s skull with scissors, and sucks the child’s brains out

before completing the delivery. What was described in Roe v. Wade

as a right to abort ‘‘unborn children’’ has thus been extended by the

Court to include the violent destruction of partially-born children

just inches from complete birth.

The Carhart Court considered the location of an infant’s body at

the moment of death during a partial-birth abortion—delivered

partly outside the body of the mother—to be of no legal significance

in ruling on the constitutionality of the Nebraska law. Instead, implicit in the Carhart decision was the pernicious notion that a partially-born infant’s entitlement to the protections of the law is dependent upon whether or not the partially-born child’s mother

wants him or her.

Following Stenberg v. Carhart, on July 26, 2000, the United

States Court of Appeals for the Third Circuit made that point explicit in Planned Parenthood of Central New Jersey v. Farmer,2 in

the course of striking down New Jersey’s partial-birth abortion

ban. According to the Third Circuit, under Roe and Carhart, it is

‘‘nonsensical’’ and ‘‘based on semantic machinations’’ and ‘‘irrational line-drawing’’ for a legislature to conclude that an infant’s location in relation to his or her mother’s body has any relevance in

determining whether that infant may be killed. Instead, the Farmer Court repudiated New Jersey’s classification of the prohibited

procedure as being a ‘‘partial birth,’’ and concluded that a child’s

status under the law, regardless of the child’s location, is dependent upon whether the mother intends to abort the child or to give

birth. Thus, the Farmer Court stated that, in contrast to an infant

whose mother intends to give birth, an infant who is killed during

a partial-birth abortion is not entitled to the protections of the law

because ‘‘[a] woman seeking an abortion is plainly not seeking to

give birth.’’ 3

The logical implications of Carhart and Farmer are both obvious

and disturbing. Under the logic of these decisions, once a child is

marked for abortion, it is wholly irrelevant whether that child

emerges from the womb as a live baby. That child may still be

treated as though he or she did not exist, and would not have any

rights under the law—no right to receive medical care, to be sustained in life, or to receive any care at all. And if a child who survives an abortion and is born alive would have no claim to the protections of the law, there would, then, be no basis upon which the

government may prohibit an abortionist from completely delivering

an infant before killing it or allowing it to die. The ‘‘right to abortion,’’ under this logic, means nothing less than the right to a dead

baby, no matter where the killing takes place.

3

4 530 U.S. 914 (2000).

Credible public testimony received by the Subcommittee on the

Constitution of the Committee on the Judiciary indicates that this

is, in fact, already occurring. According to eyewitness accounts, ‘‘induced-labor’’ or ‘‘live-birth’’ abortions are indeed being performed,

resulting in live-born premature infants who are simply allowed to

die, sometimes without the provision of even basic comfort care

such as warmth and nutrition.

The purposes of H.R. 2175, the ‘‘Born-Alive Infants Protection

Act of 2001’’ are:

(1) to repudiate the flawed notion that a child’s entitlement to

the protections of the law is dependent upon whether that

child’s mother or others want him or her;

(2) to repudiate the flawed notion that the right to an abortion

means the right to a dead baby, regardless of where the

killing takes place;

(3) to affirm that every child who is born alive—whether as a

result of induced abortion, natural labor, or caesarean section—bears an intrinsic dignity as a human being which is

not dependent upon the desires, interests, or convenience of

any other person, and is entitled to receive the full protections of the law; and

(4) to establish firmly that, for purposes of Federal law, the

term ‘‘person’’ includes an infant who is completely expelled or extracted from his or her mother and who is alive,

regardless of whether or not the baby’s development is believed to be, or is in fact, sufficient to permit long-term survival, and regardless of whether the baby survived an abortion.

BACKGROUND AND NEED FOR THE LEGISLATION

I. EROSION OF LEGAL RIGHTS OF BORN-ALIVE INFANTS

It has long been accepted as a legal principle that infants who

are born alive are persons who are entitled to the protections of the

law, and that a live birth occurs whenever an infant, at any stage

of development, is expelled from the mother’s body and displays

any of several specific signs of life—breathing, a heartbeat, and/or

definite movement of voluntary muscles. Many States have statutes that, with some variations, explicitly enshrine this principle as

a matter of State law, and Federal courts have recognized the principle in interpreting Federal criminal laws. Recent changes in the

legal and cultural landscape appear, however, to have brought this

well-settled principle into question.

A. The Supreme Court’s Recent Partial-Birth Abortion Decision

Erodes the Born-Alive Principle and Creates Confusion Regarding Infanticide and the Legal Status of Abortion Survivors

On June 28, 2000, in Stenberg v. Carhart,4 the United States Supreme Court struck down a Nebraska law banning partial-birth

abortion, a procedure in which an abortionist dilates a pregnant

woman’s cervix, delivers the unborn child’s body until only the

head remains inside of the mother, punctures the back of the

4

5Letter from P. John Seward, M.D., Executive Vice President, American Medical Association,

to U.S. Sen. Rick Santorum (May 19, 1997) (on file with the Constitution Subcomm. of the

House Comm. on the Judiciary). 6See Carhart, 530 U.S. at 926, 928–31. 7 Carhart, 1006–07 (Thomas, J., dissenting). Justice Thomas noted that ‘‘[t]he AMA has recognized that this procedure is ‘ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside the womb. The

‘‘partial birth’’ gives the fetus an autonomy which separates it from the right of the woman to

choose treatments for her own body.’ ’’ Id. (quoting AMA Board of Trustees Factsheet on H.R.

1122 (June 1997), in App. to Brief for Association of American Physicians and Surgeons et al.

as Amici Curiae 1). 8 Id. at 953 (Scalia, J., dissenting). 9See id. at 946–947 (Stevens, J., concurring) (stating that ‘‘the notion that [partial-birth abortion] is more akin to infanticide than [any other abortion procedure] . . . is simply irrational’’).

child’s skull with scissors, and sucks the child’s brains out before

completing the delivery. It is a matter of public record that this

grisly abortion procedure is extremely painful to the child, is never

medically necessary to preserve the life or health of the mother,

and indeed is dangerous to women who undergo it. In the words

of the American Medical Association, partial-birth abortion is ‘‘not

medically indicated’’ in any situation and is ‘‘not good medicine.’’ 5

Notwithstanding the compelling record against partial-birth

abortion, the Carhart Court held that the abortion right created in

Roe v. Wade encompasses the right to partial-birth abortion. That

is, what was described in Roe v. Wade as a right to abort ‘‘unborn

children’’ has now been extended by the Court to include the brutal

killing of partially-born children just inches from birth. The

Carhart Court based its bizarre conclusion on claims by abortionists that partially delivering an infant before killing it is safer for

the mother because it requires less ‘‘instrumentation’’ in the birth

canal and reduces the risk of complications from ‘‘retained fetal

body parts.’’ 6 As discussed below, these same claims would support

an abortionist’s argument that fully delivering an infant before killing it is safer for the mother and is, therefore, constitutionally protected.

The Carhart Court thus thwarted Nebraska’s efforts (and the efforts of numerous other States) to, in the words of Justice Thomas

in dissent, ‘‘prohibit[] a procedure that approaches infanticide, and

thereby dehumanizes the fetus and trivializes human life.’’ 7 The

result of the Court’s decision, as Justice Scalia noted in dissent, ‘‘is

to give live-birth abortion free rein,’’ and to endorse the absurd notion that ‘‘the Constitution of the United States, designed, among

other things, ‘to establish Justice, insure domestic Tranquility, . . .

and secure the Blessings of Liberty to ourselves and our Posterity,’

prohibits the States from simply banning this visibly brutal means

of eliminating our half-born posterity.’’ 8

The Carhart Court considered the location of an infant’s body at

the moment of death during a partial-birth abortion—delivered

partly outside the body of the mother—to be of no legal significance

in ruling on the constitutionality of the Nebraska law. Indeed, two

members of the majority, Justices Stevens and Ginsburg, went so

far as to say that it was ‘‘irrational’’ for the Nebraska legislature

to take the location of the infant at the point of death into account.9 Instead, implicit in the Carhart decision was the pernicious

notion that a partially-born infant’s entitlement to the protections

of the law is dependent upon whether or not the partially-born

child’s mother wants him or her.

5

10 220 F.3d 127 (3rd Cir. 2000). 11See id. at 143–44. 12 Id. at 143. 13See Angella Johnson, Abortion babies ‘‘should be left to die’’, Africa News Service, Mar. 3,

1997. 14 Id. 15 Id. 16See Victoria Button, Experts Divided on Foetus Protocols, The Age, Apr. 12, 2000. 17See id.

Following Stenberg v. Carhart, on July 26, 2000, the United

States Court of Appeals for the Third Circuit made that point explicit in Planned Parenthood of Central New Jersey v. Farmer,10 in

the course of striking down New Jersey’s partial-birth abortion

ban. According to the Third Circuit, under Roe and Carhart, it is

‘‘nonsensical’’ and ‘‘based on semantic machinations’’ and ‘‘irrational line-drawing’’ for a legislature to conclude that an infant’s location in relation to his or her mother’s body has any relevance in

determining whether that infant may be killed.11

Instead, the Farmer Court repudiated New Jersey’s classification

of the prohibited procedure as being a ‘‘partial birth,’’ and concluded that a child’s status under the law, regardless of his or her

location, is dependent upon whether the mother intends to abort

the child or to give birth. The Farmer Court stated that, in contrast

to an infant whose mother intends to give birth, an infant who is

killed during a partial-birth abortion is not entitled to the protections of the law because ‘‘[a] woman seeking an abortion is plainly

not seeking to give birth.’’ 12

The logical implications of Stenberg and Farmer are both obvious

and disturbing. If the right to abortion entails the right to kill

without regard to whether the child remains in the mother’s womb,

and a child’s entitlement to the protections of the law depends

upon whether or not the child’s mother intends to abort the child

or give birth, it follows that infants who are marked for abortion

but somehow survive and are born alive have no legal rights under

the law—no right to receive medical care, to be sustained in life,

or receive any care at all.

Indeed, that is precisely where the abortion right has taken the

law in South Africa. Under guidelines promulgated by the South

African Department of Health, babies who survive abortions are to

be left to die even if they are gasping for breath and struggling to

survive.13 The guidelines state that ‘‘if an infant is born who gasps

for breath, it is advised that the foetus does not receive any resuscitation measures.’’ 14 Many doctors and nurses in South Africa

have expressed outrage at the guidelines. One female physician in

KwaZulu-Natal said that ‘‘[i]t is inhuman and against all my principles. . . . No way will I stand by and do nothing to resuscitate

a child. It is impossible and we should not be put in such a position.’’ 15

A debate over this same issue is also currently taking place in

Australia. Some medical experts contend that babies who survive

abortions have the right to medical attention from a physician, just

as the elderly and terminally ill do.16 Other experts contend that

abortion survivors should not receive medical attention.17 For example, the chairman of Family Planning Australia, Gab Kovacs,

6

18 Id. 19 505 U.S. 833 (1992). 20 NARAL Statement: Roe v. Wade Faces Renewed Assault in the House, Anti-Choice Lawmakers Hold Hearing on So-Called ‘‘Born-Alive Infants Protection Act’’, July 20, 2000 (on file

with the Subcomm. on the Constitution of the House Comm. on the Judiciary). On June 13,

2001, NARAL released a statement in anticipation of the introduction of H.R. 2175: ‘‘Consistent

with our position last year, NARAL does not oppose passage of the Born Alive Infants Protection

Act. Last year’s Committee and floor debate served to clarify the bill’s intent and assure us that

it is not targeted at Roe v. Wade or a woman’s right to choose.’’ Statement of NARAL On The

contends that babies who survive abortions ‘‘should be left to succumb in peace, on a cot in a back room, for example.’’ 18

Moreover, if, under Carhart and Farmer, a child who survives an

abortion and is born alive is not entitled to the protections of the

law simply because the child’s mother did not intend to give birth,

then there is no basis—other than ‘‘semantic machinations’’ and

‘‘irrational line-drawing’’ based on the infant’s ‘‘born’’ or ‘‘unborn’’

status, bases which the Third Circuit rejected in Farmer—upon

which the government may prohibit an abortionist from completely

delivering an infant before killing it or allowing it to die. Under the

logic of these decisions, if a woman decides to abort her unborn

child, and the abortionist decides that the health risks to the

woman are reduced by his not stabbing the child in the back of the

skull in order to kill the child before completing delivery—the risk

reduction occurring because surgical instruments would not be inserted into the birth canal, and the risk of fetal part retention

would be reduced—the abortionist may simply completely deliver

the child before killing him or her. The right to abortion created

in Roe thus appears to encompass, at least in the Supreme Court’s

view, the right to infanticide.

B. The ‘‘Viability’’ Doctrine in the Supreme Court’s Abortion Jurisprudence Has Eroded the Born-Alive Principle and Created

Confusion Regarding the Legal Status of Premature Infants

Who Survive Abortions

The ‘‘viability’’ doctrine in the Supreme Court’s decisions in

Planned Parenthood v. Casey 19 and Carhart has also created confusion regarding the legal status of premature infants who survive

abortions but have little or no chance of sustained survival. In

Casey, the Court reaffirmed the right of a woman to abort her unborn child, and adhered to the notion that the government’s interest in protecting the unborn child is related to ‘‘viability,’’ or the

child’s capacity for sustained survival independent of the mother,

with or without medical assistance. The Carhart Court also relied

upon the viability doctrine in striking down Nebraska’s partialbirth abortion ban.

The Court’s reliance upon the viability concept in the abortion

context appears to have caused some to wrongly conclude that premature infants who survive abortions are not legally-protected persons if they have little or no chance of sustained survival. Indeed,

that appears to have been the position of opponents of the BornAlive Infants Protection Act of 2000, H.R. 4292, which was offered

in the 106th Congress. On July 20, 2000, for example, the National

Abortion and Reproductive Rights Action League (‘‘NARAL’’) issued

a press release criticizing H.R. 4292 because, in NARAL’s view, extending legal personhood to premature infants who are born alive

after surviving abortions constitutes an ‘‘assault’’ on Roe v. Wade.20

7

Born Alive Infants Protection Act, June 13, 2001 (on file with the Subcomm. on the Constitution

of the House Comm. on the Judiciary). 21 Id. 22 Born-Alive Infants Protection Act: Hearings on H.R. 4292 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong., July 20, 2000 (statement of Rep.

Stephanie Tubbs Jones). 23 Id. 24See Alaska Stat. § 18.50.950; Ariz. Rev. Stat. Ann. § 36–301; 17 Ca. Adc. § 915; Fla. Stat.

Ann. § 382.002; Ga. Code Ann. § 31–10–1; Haw. Rev. Stat. § 338–1; Idaho Code § 39–241; Ill.

Ann. Stat. Ch. 410, § 535/1; Kan. Stat. Ann. § 65–2401; Ky. Rev. Stat. Ann. § 213.011; Me. Rev.

Stat. Ann. tit. 22, § 1595; Md. Code Ann., Health-Gen. § 4–201; Mo. Rev. Stat. § 193.015; N.J.

Stat. Ann. § 26:8–1; N.M. Stat. Ann. § 24–14–2; N.Y. Pub. Health Law § 4130; N.D. Cent. Code

§ 23–02.1–01; Ohio Rev. Code Ann. § 3705.01; Okla. Stat. Ann. tit. 63, § 1–301; Or. Rev. Stat.

§ 432.005; R. I. Gen. Laws § 23–3–1; S.D. Codified Laws Ann. § 34–25–1.1; Tenn. Code Ann. § 68– 3–102; Va. Code Ann. § 32.1–249; W. Va. Code § 16–5–1; Wyo. Stat. § 35–1–401; D.C. Code § 6– 201(9); Minn. R. 4600.0100(Subp. 4); N.C. Admin. Code tit. 15A, r. 19H.0102(5); S.C. Admin.

Code 61–19(1)(f); 25 Tex. Admin. Code § 181.1(16). 25 Ill. Ann. Stat. Ch. 410, § 535/1 (emphasis added). 26 35 Pa. Const. Stat. § 450.105.

According to NARAL, by seeking to provide legal rights to bornalive infants ‘‘at any stage of development,’’ including those not yet

considered to have achieved ‘‘viability,’’ the proponents of H.R. 4292

were ‘‘directly contradicting one of Roe’s basic tenets.’’ 21 It will

come as a surprise to many that one of Roe’s ‘basic tenets’’ is that

a premature baby who is marked for abortion, but somehow survives and is born alive, is not a person that the law may protect.

Rep. Stephanie Tubbs Jones took a similar position during the

Subcommittee on the Constitution’s hearing on H.R. 4292. According to Rep. Jones, providing legal personhood to premature infants

who survive abortions ‘‘is an attempt to do what the U.S. Supreme

Court has strictly forbidden over and over—it unduly restricts a

woman’s right to terminate a pregnancy.’’ 22 H.R. 4292 unduly restricted a woman’s right to choose, Rep. Jones contended, by extending protection to fully born, premature infants in ‘‘direct contravention of Roe v. Wade and subsequent Supreme Court rulings.’’ 23

The question of whether a live birth has occurred does not, however, depend upon whether an infant is sufficiently developed for

sustained survival. The definition of ‘‘born alive’’ contained in H.R.

2175 was derived from a model definition of ‘‘live birth’’ that was

promulgated by the World Health Organization in 1950 and is,

with minor variations, currently codified in thirty States and the

District of Columbia.24 The Illinois statute provides a model of this

definition:

Live birth means the complete expulsion or extraction

from its mother of a product of human conception, irrespective of the duration of pregnancy, which after such separation breathes or shows any other evidence of life such as

beating of the heart, pulsation of the umbilical cord, or

definite movement of voluntary muscles, whether or not

the umbilical cord has been cut or the placenta is attached.25

Pennsylvania’s statute includes a similar but somewhat broader

definition: ‘‘Live birth means the expulsion or extraction from its

mother of a product of conception, irrespective of the period of gestation, which shows any evidence of life at any moment after expulsion or extraction.’’ 26

The reason these statutes do not define a live birth as dependent

upon the infant’s gestational age is fairly obvious. Many infants are

8

27See Born-Alive Infants Protection Act: Hearings on H.R. 2175 Before the Subcomm. on the

Constitution of the House Comm. on the Judiciary, 107th Cong., July 12, 2001 (statement of Jill

L. Stanek, R.N.); Born-Alive Infants Protection Act: Hearings on H.R. 4292 Before the Subcomm.

on the Constitution of the House Comm. on the Judiciary, 106th Cong., July 20, 2000 (statement

of Allison Baker, R.N., B.S.N.). On July 20, 2000, during the 106th Congress, the Subcommittee

born alive at 20 to 22 weeks and survive for hours, even though

their lung capacity typically does not permit sustained survival.

Under the prevailing standards of medical care, such infants are

understood to be born-alive persons and are treated as such, even

though they may only live for a short time. They are, for example,

treated humanely, given comfort care, and issued a death certificate. And an individual could not escape criminal prosecution for

entering a neonatal intensive care unit and murdering one of these

infants simply because the infant will only survive for a short time.

Many infants are also born-alive at 23 weeks, and currently have

at least a 39% chance of sustained survival, and at 24 weeks with

a greater than 50% chance of sustained survival, with the odds improving all of the time. Determining whether any given one of

these children should be treated as a born-alive person, on the

basis of his or her ultimate viability, could only be accomplished

retrospectively, by looking at whether the child actually survived.

The law has avoided this conundrum by defining a live birth without regard to the gestational age of the child.

C. Princeton University Bioethicist Peter Singer Advocates Legal

Killing of Disabled or Unhealthy Newborn Infants

The principle that born-alive infants are entitled to the protection of the law is also being questioned at one of America’s most

prestigious universities. In his 1993 book Practical Ethics, Princeton University Bioethicist Peter Singer argues that parents should

have the option to kill disabled or unhealthy newborn babies for a

certain period after birth. According to Professor Singer, ‘‘a period

of 28 days after birth might be allowed before an infant is accepted

as having the same right to live as others.’’ This contention is based on Professor Singer’s view that the life

of a newborn baby is ‘‘of no greater value than the life of a

nonhuman animal at a similar level of rationality, self-consciousness, awareness, capacity to feel, etc.’’ According to Professor Singer, ‘‘killing a disabled infant is not morally equivalent to killing a

person. Very often it is not wrong at all.’’

II. EVIDENCE OF THE MORAL AND LEGAL CONFUSION REGARDING THE

STATUS OF LIVE-BORN INFANTS

A. ‘‘Live-Birth’’ Abortions

The legal and moral confusion that flows from these pernicious

ideas is well illustrated by disturbing events that are alleged to

have occurred at Christ Hospital in Oak Lawn, Illinois. Two nurses

from the hospital’s delivery ward, Jill Stanek and Allison Baker

(who is no longer employed by the hospital), testified before the

Subcommittee on the Constitution that physicians at Christ Hospital have performed numerous ‘‘induced labor’’ or ‘‘live-birth’’ abortions, a procedure in which physicians use drugs to induce premature labor and deliver unborn children, many of whom are sometimes still alive, and then simply allow those who are born alive

to die.27

9

on the Constitution held a hearing on the H.R. 4292, the ‘‘Born-Alive Infants Protection Act of

2000,’’ at which Mrs. Stanek and Mrs. Baker were witnesses. On July 12, 2001, the Subcommittee held a hearing on H.R. 2175, the ‘‘Born-Alive Infants Protection Act of 2001,’’ at

which Mrs. Stanek was a witness. Mrs. Baker’s testimony submitted to the Subcommittee during the 106th Congress was entered into the record during the Subcommittee’s hearing on H.R.

2175. 28See Statement of Jill L. Stanek, R.N., supra; Statement of Allison Baker, R.N., B.S.N.,

supra. 29See Statement of Jill L. Stanek, R.N., supra; Statement of Allison Baker, R.N., B.S.N.,

supra. 30See Statement of Jill L. Stanek, R.N., supra; Statement of Allison Baker, R.N., B.S.N.,

supra. 31See Statement of Jill L. Stanek, R.N., supra; Statement of Allison Baker, R.N., B.S.N.,

supra. 32Statement of Jill L. Stanek, R.N., supra. 33 Id.

According to medical experts, this procedure is appropriately

used only in situations in which an unborn child has a fatal deformity, such as anencephaly or lack of a brain, and infants with

such conditions who are born alive are given comfort care (including warmth and nutrition) until they die, which, because of the

fatal deformity, is typically within a day or two of birth. According

to the testimony of Mrs. Stanek and Mrs. Baker, however, physicians at Christ Hospital have used the procedure to abort healthy

infants and infants with non-fatal deformities such as spina bifida

and Down Syndrome.28 Many of these babies have lived for hours

after birth, with no efforts made to determine if any of them could

have survived with appropriate medical assistance.29 The nurses

have also witnessed hospital staff taking many of these live-born

babies into a ‘‘soiled utility closet’’ where the babies would remain

until death.30 Comfort care, the nurses say, was only provided sporadically.31

Mrs. Stanek, who testified in front of the Subcommittee on the

Constitution during its hearing on H.R. 4292 and H.R. 2175, testified regarding numerous live-birth abortions that she alleges have

occurred at Christ Hospital. The first she described as follows:

One night, a nursing co-worker was taking an aborted

Down’s Syndrome baby who was born alive to our Soiled

Utility Room because his parents did not want to hold

him, and she did not have time to hold him. I could not

bear the thought of this suffering child dying alone in a

Soiled Utility Room, so I cradled and rocked him for the

45 minutes that he lived. He was 21 to 22 weeks old,

weighed about 1⁄2 pound, and was about 10 inches long. He

was too weak to move very much, expending any energy

he had trying to breathe. Toward the end he was so quiet

that I couldn’t tell if he was still alive unless I held him

up to the light to see if his heart was still beating through

his chest wall. After he was pronounced dead, we folded

his little arms across his chest, wrapped him in a tiny

shroud, and carried him to the hospital morgue where all

of our dead patients are taken.32

Mrs. Stanek testified about another aborted baby who was

thought to have had spina bifida, but was delivered with an intact

spine.33 On another occasion, an aborted baby ‘‘was left to die on

the counter of the Soiled Utility Room wrapped in a disposable

towel. This baby was accidentally thrown in the garbage, and when

they later were going through the trash to find the baby, the baby

10

34 Id. 35 Id. 36 Id. 37Statement of Allison Baker, R.N., B.S.N., supra. 38 Id.

fell out of the towel and on to the floor.’’ 34 Mrs. Stanek further testified regarding a live-birth abortion that was performed on a

healthy infant at more than 23 weeks gestation, a stage of development at which premature infants have an almost 40% chance of

survival.35 According to Mrs. Stanek,

[t]he baby was born alive. If the mother had wanted everything done for her baby, there would have been a

neonatologist, pediatric resident, neonatal nurse, and respiratory therapist present for the delivery, and the baby

would have been taken to our Neonatal Intensive Care

Unit for specialized care. Instead, the only personnel

present for this delivery were an obstetrical resident and

my co-worker. After delivery the baby, who showed early

signs of thriving, was merely wrapped in a blanket and

kept in the Labor & Delivery Department until she died

21⁄2 hours later.36

Mrs. Baker testified regarding three live-birth abortions she witnessed at Christ Hospital. According to Mrs. Baker, she was informed about the live-birth abortions, described by the hospital as

‘‘therapeutic abortions,’’ when she began working in the high risk

labor and delivery unit at Christ Hospital in August 1998. She described her first encounter with this procedure as follows:

The first occurred on a day shift. I happened to walk into

a ‘‘soiled utility room’’ and saw, lying on the metal counter,

a fetus, naked, exposed and breathing, moving its arms

and legs. The fetus was visibly alive, and was gasping for

breath. I left to find the nurse who was caring for the patient and this fetus. When I asked her about the fetus, she

said that she was so busy with the mother that she didn’t

have time to wrap and place the fetus in a warmer, and

she asked if I would do that for her. Later I found out that

the fetus was 22 weeks old, and had undergone a therapeutic abortion because it had been diagnosed with Down’s

Syndrome. I did wrap the fetus and place him in a warmer

and for 21⁄2 hours he maintained a heartbeat, and then finally expired.37

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

According to Mrs. Baker,

[d]uring the time the fetus was alive, the patient kept asking me when the fetus would die. For an hour and 45 minutes the fetus maintained a heartbeat. The parents were

frustrated, and obviously not prepared for this long period

of time. Since I was the nurse of both the mother and the

fetus, I held the fetus in my arms until it finally expired.38

The third incident witnessed by Mrs. Baker involved a 16 weekold fetus with Down’s Syndrome. ‘‘Again,’’ Mrs. Baker testified, ‘‘I

walked into the soiled utility room and the fetus was fully exposed,

11

39 Id. 40 Id. 41 Jeremy Manier, Rare Abortions by Induced Labor Probed by State, Chicago Tribune, Sept.

29, 1999. 42See Jeremy Manier, Christ Hospital, Network to Allow Fewer Abortions, Chicago Tribune,

Oct. 14, 1999. 43See Finger-pointing follows Baby Hope, Cincinnati Post, Apr. 22, 1999, at 15A. 44See id.; see also Mona Charen, Baby Hope, Washington Times, May 17, 1999. 45Mona Charen, Baby Hope, Part 2, Washington Times, May 24, 1999. 46Mona Charen, Baby Hope, Washington Times, May 17, 1999. 47See id.

lying on the baby scale.’’ 39 Mrs. Baker then found the nurse who

was caring for the mother and the baby and offered her assistance.

‘‘When I went back into the soiled utility room,’’ Mrs. Baker said, ‘‘the fetus was moving its arms and legs. I then listened for a

heartbeat, and found that the fetus was still alive. I wrapped the

fetus and in 45 minutes the fetus finally expired.’’ 40

When allegations such as these were first made against Christ

Hospital, the hospital claimed that this procedure was only used

‘‘when doctors determine the fetus has serious problems, such as

lack of a brain, that would prevent long-term survival.’’ 41 Later,

however, the hospital changed its position, announcing that although it had performed abortions on infants with non-fatal birth

defects, it was changing its policy and would henceforth use the

procedure to abort only fatally-deformed infants.42

B. Confusion Regarding the Status of Abortion Survivors

The confusion regarding the status of abortion survivors is reflected in events that happened two years ago in Cincinnati, Ohio.

A young woman learned she was pregnant and sought the assistance at the clinic of the abortionist Dr. Martin Haskell, inventor

of one variation of the partial-birth abortion procedure.43 Dr. Haskell performed the first step of the partial-birth abortion procedure—dilating the woman’s cervix—and she was to return the next

day. The next morning the woman began experiencing severe abdominal pains and reported to the emergency room of Bethesda

North Medical Center in Cincinnati. While she was being examined, the young woman gave birth to a baby girl.44 The attending

physician placed the baby in a specimen dish—like any other substance that is removed from the body—to be taken to the lab by

a medical technician. When the technician, Shelly Lowe, saw the

baby girl in the dish she was stunned when she saw the girl gasping for air. ‘‘I don’t think I can do that,’’ Ms. Lowe reportedly said. ‘‘This baby is alive.’’ 45

After doctors concluded that the baby was too premature to survive (by some estimates she was born at 22 weeks, although some

members of the hospital staff believed she was older), Ms. Lowe

held the baby, whom she named ‘‘Baby Hope,’’ until the child died,

wrapping her in a blanket and singing to her as she stroked her

cheeks. Ms. Lowe said: ‘‘I wanted her to feel that she was wanted.

. . . She was a perfectly formed newborn, entering the world too

soon through no choice of her own.’’ 46 Surprisingly, Baby Hope

lived for 3 hours, without the benefit of an incubator or other intensive care, and breathing room air, but her condition was not reassessed by the physicians.47 And although it is impossible to determine at this point whether a reassessment would have made

any difference in Baby Hope’s ultimate survival, the lack of any

12

48See Australian Baby Lives 80 Minutes After Abortion, Sydney Morning Herald, Apr. 10,

2000. 49 Id. 50See id. 51 Id. 52 Id. 53See Andrew Gimson, Outrage as baby survives abortion, Daily Telegraph, London, Jan. 8,

1998.

such reassessment, coupled with the attending physician’s initial

placement of then-breathing Baby Hope in a specimen dish, at

least raises serious questions as to whether a similarly-situated infant who was wanted by her mother would have received the same

treatment.

Confusion regarding the legal status of abortion survivors is not

a problem only in the United States. Evidence of this confusion can

be further illustrated by events that occurred in Professor Peter

Singer’s native country of Australia. On April 10, 2000, in Sydney,

Australia, a Coroners Court heard testimony regarding a baby who

survived an abortion in 1998 and lived for 80 minutes while hospital staff waited for the baby to die.48 When the midwife nurse

called the abortion doctor (who was not present) to inform him that

the baby had survived, he responded, ‘‘So?’’ 49 The nurse then did

what she could to make the baby comfortable, covering her with a

blanket to keep her warm until her breathing and heartbeat slowed

and she died.50

The coroner who investigated this incident condemned the actions of the abortion doctor, stating that ‘‘ ‘[t]he [baby] having been

born alive deserved all the dignity, respect and value that our society places on human life. . . . The fact that her birth was unexpected and not the desired outcome of the [abortion] should not result in her and babies like her being perceived as anything less

than a complete human being.’ ’’ 51 Noting that the old, infirm, sick

and terminally ill are all entitled to proper medical and palliative

care and attention, the coroner stated that ‘‘newly-born unwanted

and premature babies should have the same rights. The fact that

[the baby’s] death was inevitable should not affect her entitlement

to such care and attention.’’ 52

A similar incident occurred in Germany in 1998.53 In that case,

an infant survived an abortion attempt at 25 weeks gestation. The

doctors who attempted to abort the baby left it wrapped in a blanket for 10 hours ‘‘under observation’’ but without any medical assistance. The doctors then consulted with the parents and decided

to provide the baby medical assistance. The infant survived, but

was severely damaged and has had several operations. The German government brought charges against the physicians.

III. THE BORN-ALIVE INFANTS PROTECTION ACT

H.R. 2175, the ‘‘Born-Alive Infants Protection Act of 2001,’’ was

designed to repudiate the pernicious and destructive ideas that

have brought the born-alive rule into question, and to firmly establish that, for purposes of Federal law, an infant who is completely

expelled or extracted from his or her mother and who is alive is,

indeed, a person under the law—regardless of whether or not the

child’s development is believed to be, or is in fact, sufficient to permit long-term survival, and regardless of whether the baby survived an abortion. H.R. 2175 accomplishes this by providing that,

13

54See discussion supra. 55 Born-Alive Infants Protection Act: Hearings on H.R. 2175 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 107th Cong., July 12, 2001 (statement of Professor Hadley Arkes, Amherst College).

for purposes of Federal law, ‘‘the words ‘person,’ ‘human being,’ ‘child,’ and ‘individual,’ shall include every infant member of the

species homo sapiens who is born alive at any stage of development.’’ The term ‘‘born alive’’ is defined as

the complete expulsion or extraction from its mother of

that member, at any stage of development, who after such

expulsion or extraction breathes or has a beating heart,

pulsation of the umbilical cord, or definite movement of

the voluntary muscles, regardless of whether the umbilical

cord has been cut, and regardless of whether the expulsion

or extraction occurs as a result of natural or induced labor,

cesarean section, or induced abortion.

As stated above, this definition of ‘‘born alive’’ was derived from a

model definition of ‘‘live birth’’ that has been adopted, with minor

variations, in thirty States and the District of Columbia.54

H.R. 2175 draws a bright line between the right to abortion—

which the Supreme Court has now said includes the right to kill

partially-born children—and infanticide, or the killing or criminal

neglect of completely born children. The bill clarifies that a bornalive infant’s legal status under Federal law does not depend upon

the infant’s gestational age or whether the infant’s birth occurred

as a result of natural or induced labor, cesarean section, or induced

abortion. If, for example, an infant is born alive at a Federal hospital as a result of a failed abortion attempt, this bill makes clear

that the attending physicians and other medical professionals

should treat the infant just as they would treat a similarly-situated

infant who was born as a result of natural labor.

H.R. 2175 thus affirms, as Professor Hadley Arkes stated in testimony received by the Subcommittee on the Constitution, that

every child who is born alive ‘‘has an intrinsic dignity, which must

in turn be the source of rights of an intrinsic dignity, which cannot

depend then on the interests or convenience of anyone else.’’ 55 The

bill makes clear that a child’s legal status does not depend upon

whether anyone happens to want him or her.

The protections afforded newborn infants under H.R. 2175 for

purposes of Federal law are consistent with the protections afforded those infants under the laws of the thirty States and the

District of Columbia that define a ‘‘live birth’’ in virtually identical

terms. Like those laws, H.R. 2175 would not mandate medical

treatment where none is currently indicated. While there is debate

about whether or not to aggressively treat premature infants below

a certain birth weight, this is a dispute about medical efficacy, not

regarding the legal status of the patient. That is, the standard of

medical care applicable in a given situation involving a premature

infant is not determined by asking whether that infant is a person.

Medical authorities who argue that treatment below a given birth

weight is futile are not arguing that these low-birth weight infants

are non-persons, only that providing treatment in those circumstances is not warranted under the applicable standard of medical care. H.R. 2175 would not affect the applicable standard of

14

56See Born-Alive Infants Protection Act: Hearings on H.R. 4292 Before the Subcomm. on the

Constitution of the House Comm. on the Judiciary, 106th Cong., July 20, 2000 (statement of Professor Gerard V. Bradley, Notre Dame Law School). 57 Id.

care, but would only insure that all born-alive infants—regardless

of their age and regardless of the circumstances of their birth—are

treated as persons for purposes of Federal law.

IV. CONGRESSIONAL AUTHORITY TO ENACT H.R. 2175

H.R. 2175 is exclusively a definitional provision, identical in

structure and function to the immediately preceding provision of

the United States Code. That provision, 1 U.S.C. § 7, defines ‘‘marriage’’ and ‘‘spouse’’ for the purpose of construing ‘‘any Act of Congress, or of any ruling, regulation, or interpretation of the various

administrative bureaus of the United States.’’ H.R. 2175 defines

the words ‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ and ‘‘individual’’ for

identical purposes.

H.R. 2175 does not, therefore, articulate any new substantive

rule of law. Thus, as Professor Gerard V. Bradley of Notre Dame

Law School testified before the Subcommittee on the Constitution

in the 106th Congress, the Act does not call for an as-yetunarticulated constitutional basis for lawmaking.56 If the Federal

law using the word ‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ or ‘‘individual,’’ rests upon a proper enumerated basis, then no additional

question about enumerated power is raised by Congress’s clarification of what that term means.57 For, if Congress has the power to

count ‘‘persons,’’ to protect ‘‘persons’’ against assault, to grant tax

exemptions for all dependent ‘‘children,’’ or to take some other action with regard to ‘‘human beings’’ or ‘‘individuals,’’ that power

necessarily implies the authority to provide a definition of ‘‘persons,’’ ‘‘children,’’ and ‘‘individuals.’’ Congress also has the authority to define these terms under the Necessary and Proper Clause

of article 1, section 8 of the Constitution.

HEARINGS

The Committee’s Subcommittee on the Constitution held a hearing on H.R. 2175 on July 12, 2001. Testimony was received from

the following witnesses: Hadley Arkes, Ney Professor of Jurisprudence and American Institutions, Amherst College; Jill L. Stanek,

R.N., Christ Hospital, Oak Lawn, Illinois; Watson A. Bowes, Jr.,

M.D., Professor Emeritus of Obstetrics and Gynocology, School of

Medicine, University of North Carolina at Chapel Hill. Additional

material was submitted by Matthew G. Hile, Ph.D.; F. Sessions

Cole, M.D.; Gordon B. Avery, M.D., Ph.D.; Advocate Christ Medical

Center; and Jill L. Stanek, R.N.

COMMITTEE CONSIDERATION

On July 12, 2001, the Subcommittee on the Constitution met in

open session and ordered favorably reported the bill H.R. 2175, by

a voice vote, a quorum being present. On July 24, 2001, the Committee met in open session and ordered favorably reported the bill

H.R. 2175 without amendment by a recorded vote of 25 to 2, a

quorum being present.

15

VOTE OF THE COMMITTEE

1. Final Passage. The motion to report the bill H.R. 2175 was

adopted. The motion was agreed to by a rollcall vote of 25 to 2.

ROLLCALL NO. 1

Ayes Nays Present

Mr. Hyde ............................................................................................................ X

Mr. Gekas .......................................................................................................... X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................ X

Mr. Hutchinson .................................................................................................. X

Mr. Cannon ....................................................................................................... X

Mr. Graham .......................................................................................................

Mr. Bachus ........................................................................................................ X

Mr. Scarborough ................................................................................................

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Frank ...........................................................................................................

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 25 2

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

H.R. 2175 does not authorize funding. Therefore, clause 3(c) of

rule XIII of the Rules of the House is inapplicable.

16

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

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

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the bill, H.R. 2175, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, July 26, 2001.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2175, the Born-Alive Infants Protection Act of 2001.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Lanette J. Walker, who

can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers Jr.

Ranking Member

H.R. 2175—Born-Alive Infants Protection Act of 2001.

H.R. 2175 would amend the United States Code by expanding

the definition of the words ‘‘person, human being, child, and individual’’ as they are used in any act of the Congress or any administrative ruling, regulation, or interpretation. Under the bill, such

words would be defined to include every infant born alive at any

stage of development. The bill also would define the term ‘‘born

alive.’’

The interests of those who are born alive are recognized most

commonly in the areas of tort law, trust and estate law, and criminal law. Because the words ‘‘person, human being, child, and individual’’ are used frequently throughout the United States Code,

CBO cannot determine how the new definitions could be interpreted in all situations. However, CBO assumes that the bill would

have no effect on trust and estate law and negligible effect on Federal tort law. In the area of criminal law, CBO expects that the circumstances under which the new definitions could be used to bring

lawsuits in Federal court are very limited. Therefore, we estimate

that the effect of H.R. 2175 on the Federal budget would be negligible.

Anyone prosecuted and convicted under H.R. 2175 could be subject to criminal fines. Collections of such fines are recorded in the

17

budget as governmental receipts (revenues), which are deposited in

the Crime Victims Fund and spent in subsequent years. Because

H.R. 2175 could affect direct spending and receipts, pay-as-yougo procedures would apply. CBO expects, however, that any additional receipts and direct spending would be negligible because it

is not likely that the Federal Government would pursue many

cases under this bill.

Because definition changes in this bill would affect such a large

number of citations in the United States Code, CBO cannot determine with certainty whether those changes might impose new enforceable duties on State, local, and tribal governments or the private sector. CBO has identified no such instances, however, and believes that it is unlikely that H.R. 2175 would impose new Federal

mandates as defined by the Unfunded Mandates Reform Act.

The CBO staff contact for this estimate is Lanette J. Walker,

who can be reached at 226–2860. This estimate was approved by

Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 18 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title. This section provides that the short title

of the Act is the Born-Alive Infants Protection Act of 2001.

Section 2. Definition of Born-Alive Infant. This section inserts

into chapter 1 of title 1 of the United States Code a new section

8, defining ‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ and ‘‘individual’’ as including born-alive infants. Section 8(a) provides that in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and

agencies of the United States, the words ‘‘person,’’ ‘‘human being,’’

‘‘child,’’ and ‘‘individual,’’ shall include every infant member of the

species homo sapiens who is born alive at any stage of development.

Section 8(b) provides that the term ‘‘born-alive,’’ with respect to

any member of the species homo sapiens, means the complete expulsion or extraction of that member, at any stage of development,

who after such expulsion or extraction breathes or has a beating

heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been

cut, and regardless of whether the expulsion or extraction occurs

as a result of natural or induced labor, cesarean section, or induced

abortion.

Section 8(c) provides that nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal

right applicable to any member of the species homo sapiens at any

point prior to being ‘‘born alive’’ as defined in this section.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (new matter is printed in italics

18

and existing law in which no change is proposed is shown in

roman):

TITLE 1, UNITED STATES CODE

* * * * * * *

CHAPTER 1—RULES OF CONSTRUCTION

Sec.

1. Words denoting number, gender, etc.

* * * * * * *

8. ‘‘Person’’, ‘‘human being’’, ‘‘child’’, and ‘‘individual’’ as including born-alive infant.

* * * * * * *

§ 8. ‘‘Person’’, ‘‘human being’’, ‘‘child’’, and ‘‘individual’’ as

including born-alive infant

(a) In determining the meaning of any Act of Congress, or of

any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words ‘‘person’’,

‘‘human being’’, ‘‘child’’, and ‘‘individual’’, shall include every infant

member of the species homo sapiens who is born alive at any stage

of development.

(b) As used in this section, the term ‘‘born alive’’, with respect

to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any

stage of development, who after such expulsion or extraction

breathes or has a beating heart, pulsation of the umbilical cord, or

definite movement of voluntary muscles, regardless of whether the

umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

(c) Nothing in this section shall be construed to affirm, deny,

expand, or contract any legal status or legal right applicable to any

member of the species homo sapiens at any point prior to being

‘‘born alive’’ as defined in this section.

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING

TUESDAY, JULY 24, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:03 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.

Chairman SENSENBRENNER. The Committee will be in order. A

working quorum is present.

The first item on the agenda is the adoption of H.R. 2175, the

‘‘Born-Alive Infants Protection Act of 2001.’’

19

[The bill, H.R. 2175, follows:]

20

21

Chairman SENSENBRENNER. The Chair recognizes the gentleman

from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the

Constitution, for a motion.

Mr. CHABOT. Thank you, Mr. Chairman.

Mr. Chairman, the Subcommittee on the Constitution reports favorably the bill H.R. 2175 and moves its favorable recommendation

to the full House.

Chairman SENSENBRENNER. Without objection, H.R. 2175 will be

considered as read and open for amendment at any point.

The Chair recognizes the gentleman from Ohio to strike the last

word.

Mr. CHABOT. Thank you, Mr. Chairman.

This morning, the Committee will consider H.R. 2175, the ‘‘BornAlive Infants Protection Act of 2001.’’ The Born-Alive Infants Protection Act is designed to protect all born-alive infants by recognizing them as a person, human being, child, or individual for purposes of Federal law.

This recognition would take effect upon the live birth of an infant, regardless of whether or not the child’s development is sufficient to permit long-term survival and regardless of whether the

child survived an abortion. The act also clarifies that nothing in

the bill shall be construed to affirm, deny, expand, or contract any

legal status or legal rights applicable to an unborn child.

This truly is a bill of compassion, a bill that says all of America’s

children are precious and should be protected. It has long been an

accepted legal principle that infants who are born alive are persons, entitled to the protections of the law. A live birth is considVerDate 11-MAY-2000 10:32 Aug 03, 2001 Jkt 089006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR186.107 pfrm07 PsN: HR186
22

ered to occur whenever an infant is expelled from his or her mother’s body and displays any of several specific signs of life: breathing, a heartbeat, or definite movement of voluntary muscles.

Thirty States and the District of Columbia have statutes that,

with some variations, explicitly enshrine this principle as a matter

of State law, and some Federal courts have recognized the principle

in interpreting Federal criminal laws. But recent changes in the

legal and cultural landscape appear to have brought this well-settled principle into question.

For example, when the United States Supreme Court struck

down Nebraska’s partial-birth abortion statute in Stenberg v.

Carhart, it failed to consider the legal significance of any infant’s

location relative to its mother’s body at the moment he or she is

killed during an abortion. What was described in Roe v. Wade as

a right to abort unborn children was extended to include the violent destruction of partially-born children just inches from birth.

The Carhart ruling presents a serious threat to the born-alive principle because it left the door open for a future court to explicitly

reject the importance of an infant’s location relative to his or her

mother during an abortion. In fact, this is the position of two members of the Carhart majority.

Shortly after the Carhart ruling, the Third Circuit Court of Appeals in Planned Parenthood of Central New Jersey v. Farmer concluded not only that it was ‘‘nonsensical’’ to prohibit abortions

based upon the location of the baby at the moment it is killed, but,

also, that an infant who is killed during a partial-birth abortion is

not entitled to the protections of the law because, quote, ‘‘a woman

seeking an abortion is plainly not seeking to give birth.’’ Under the logic of these rulings, it may ultimately become irrelevant whether a child emerges from the mother’s womb as a live

baby. That child may still be treated as a non-entity, without rights

under the law, no right to receive medical care, to be sustained in

life, or receive basic comfort care.

On July 12th, the Constitution Subcommittee received credible

evidence that this is, in fact, already occurring. Jill Stanek, a nurse

at Christ Hospital in Oak Lawn, Illinois, testified about one aborted baby left to die on the counter of the soiled utility room wrapped

in a disposable towel that was accidentally thrown in the garbage.

And when they later were going through the trash to find the baby,

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

As Professor Hadley Arkes stated in testimony received by the

Subcommittee, the Carhart ruling has, indeed, brought us to the

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

to cross that threshold. That’s why it’s imperative that Congress

firmly establish the born-alive principle in Federal law. Although

this rule has been codified in most States, the notion that an abortion survivor is not a person still remains plausible precisely because it has not been explicitly refuted or rejected.

It is important to note that H.R. 2175 will not mandate medical

treatment where none is currently indicated. As Dr. Watson Bowes

told the Subcommittee, ‘‘this bill does not legislate how physicians

and parents may deal with the decisions about withholding or discontinuing medical or surgical treatment that is considered futile

in the care of an infant.’’ Instead, it ‘‘deals solely with the criteria

that define whether an infant is alive at the time of birth.’’

23

The Born-Alive Infants Protection Act draws a bright line between the right to an abortion, which the Supreme Court has now

said includes the right to kill partially born children, and infanticide, or the killing of a completely born child—a distinction that

the Carhart court refused to recognize.

H.R. 2175 was introduced by a bipartisan coalition of more than

70 original cosponsors and was reported favorably by the Subcommittee on the Constitution without amendment. Virtually identical legislation was approved by the House of Representatives last

Congress with an overwhelming majority. I urge this Committee to

approve this important piece of legislation so that all newborn infants will receive the protection of Federal law regardless of the

circumstances of their birth.

I yield back the balance of my time.

Chairman SENSENBRENNER. The gentleman’s time has expired.

Who would like to give the opening statement for the minority?

The gentlewoman from California strikes the last word and is recognized for 5 minutes.

Ms. LOFGREN. Mr. Chairman, this bill was addressed by the

Committee in the 106th Congress, and I believe that this year, as

with last year, there will be support on both sides of the aisle for

the measure.

I would note, however, although I’m not a Member of the Subcommittee, that the—we often hear these wild stories relative to

births, and yet when you dig a bit deeper, you find that those wild

stories are not unconfronted. For example, in the story just relayed

by the Chairman of the Committee, the hospital itself, the Advocate Christ Medical Center, indicated that the hospital terminates

pregnancies only when medically necessary, that no pregnancy is

terminated without the informed consent of the family and the

Perinatal Ethics Committee, that the hospital always assesses the

medical condition of neonates and provides treatment to those who

can survive outside the womb and that non-viable fetuses are, in

fact, given comfort care that shows respect for life, no matter how

brief. So I think it’s important that we—while coming together, to

note that there’s not a hospital in America that would refuse to

provide medical care to an infant born. There’s certainly, therefore,

nothing wrong with codifying that fact in Federal law.

I would note that the language of the bill is sloppily drafted and

is more of a political nature than a tightly drawn medical-legal

statute. But I’m not going to let that deter me from voting for it

because I know that should this ever move through the Senate that

the language can be tightened up and made more judicial.

So I would just like to note that there is not a division on the

Committee. I think there is misadvised rhetoric, stories that are

without foundation, but that will not deter from us all voting for

this measure.

Mr. CONYERS. Would the gentlelady yield?

Ms. LOFGREN. I would certainly yield to the Ranking Member.

Mr. CONYERS. Thank you. I’d like to get unanimous consent to

insert the statements of Representatives Jerry Nadler and myself

at this point?

Chairman SENSENBRENNER. Without objection, so ordered, and

also without objection, all Members may insert statements in the

record at this point.

24

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

Last Congress, we considered legislation similar to H.R. 2175, the ‘‘Born-Alive Infants Protection Act.’’ I supported the bill last Congress—as I support this bill—because it does not change current law.

Although the bill is redundant and somewhat unnecessary, I will vote for H.R.

2175 to reaffirm that all newborns and children are entitled to legal protection.

Importantly, Dr. Watson Bowes Jr., a specialist in obstetrics and maternal-fetal

medicine, testified before the Constitution Subcommittee that this bill will not adversely affect the ability of physicians and parents to deal with the heart-rending

decisions about withholding or discontinuing medical or surgical treatment that is

considered futile in the care of an infant.

Dr. Bowes also confirmed that the bill does not change the standard of care in

current law.

Since this legislation will not change the law in any way, the real question is why

we are spending time on this bill when there are real health care issues for pregnant women, infants, and children that are going unaddressed.

Over 400,000 pregnant women in the United States are uninsured—making it

much more difficult and costly for them to receive proper prenatal care. In order

to reduce low birth weight babies, and give infants their best chance for a healthy

childhood, proper prenatal care is essential.

In addition, there are 10 million children in this country who are uninsured.

These children do not have access to both routine and emergency health care services.

Rather than passing redundant legislation, Congress should be spending its time

on proposals to encourage the States to reach out to pregnant women and families

to make it easier for them to enroll in Medicaid and the Children’s Health Insurance

Program (CHIP).

Finally, we need to fully fund Head Start, which has been proven to improve academic performance for poor and underserved children. Currently, only 25–30% of eligible children are enrolled in Head Start programs. We need to serve 100% of these

children.

Only after these other priorities are taken care of, should the Committee spend

time on bills that re-state current law.

[The prepared statement of Mr. Nadler follows:]

25

26

27

Mr. CHABOT. Will the gentlelady further yield?

Ms. LOFGREN. I would certainly yield to the gentleman.

Mr. CHABOT. I thank the gentlelady for yielding. I’ll be very brief.

You mentioned that the language is sloppily worded. I might note

that this is the same language that was used by the World Health

Organization, a draft of 50 years ago, and is used in many States

around the country. So the language——

Ms. LOFGREN. Well, reclaiming my time, they don’t have the responsibility for drafting the Federal code. We do. However, as I

mentioned, I will vote for this noting that if this proceeds into the

Senate that wiser heads will clean up the language and make sure

that lawyers around the world can actually—around the country

can actually apply it should this ever be applied, which I doubt

very much, since this is the standard of care in every hospital in

America.

And, with that, I would yield back to the Chairman the remainder of my time.

Chairman SENSENBRENNER. Are there amendments? For what

purpose does the gentleman from North Carolina seek recognition?

Mr. WATT. I move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

28

Mr. WATT. Thank you, Mr. Chairman. I actually was going to sit

and just let this bill be voted on and vote against it. But I’m afraid

my colleague from California left a misimpression that there was

no division on the Committee about it, and I don’t want to leave

that misimpression.

I voted against this bill last year in Committee and on the floor.

I voted against it in the Subcommittee. And I intend to vote

against it today if anybody calls for a recorded vote, not so much

because I disagree with what the proponents of the bill say the bill

stands for, but because I still, even after all this time, don’t understand the implications of it.

At its best, the bill does nothing, and many of the supporters of

this bill say that it does nothing. It does not change existing law.

It does nothing. And that’s certainly not a compelling reason to

vote for a piece of legislation.

But that’s not my concern, either. My concern is that the Congressional Research Service has indicated that there are over

15,000 provisions in the United States Code and 57,000 provisions

in the Code of Federal Regulations which use the terms ‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ ‘‘individual,’’ and we don’t have a clue what

this bill does with respect to those provisions in the United States

Code. And I simply think it’s irresponsible for the Judiciary Committee, of all places, to be reporting a bill out and supporting a bill

which some people say does nothing and, if it does, then I don’t understand the rationale for it.

But if it does something, we at least in the Judiciary Committee

ought to understand exactly what it does. What implications does

it have for inheritance laws? What implication does it have for the

myriad of statutory provisions that use these terms in the United

States Code and in the Code of Federal Regulations? And nobody

has been able to tell me that, and I’m sorry, I’m just not going to

get on this boat just because the boat is moving and maybe there’s

nothing of harm to be done by this bill.

I’ll yield to the gentlelady from California.

Ms. LOFGREN. I would just—I appreciate the gentleman for yielding, and I just wanted to offer my apologies for speaking for him

incorrectly and—which I did not mean to do, and I gratefully yield

back to the gentleman.

Mr. WATT. I yield back the balance of my time, Mr. Chairman.

Chairman SENSENBRENNER. Are there amendments?

Mr. NADLER. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition?

Mr. NADLER. Strike the last word.

Chairman SENSENBRENNER. The gentleman’s recognized for 5

minutes.

Mr. NADLER. Thank you. Thank you, Mr. Chairman.

Today we consider legislation reaffirming an important principle

which is enshrined in the laws of all 50 States already: that an infant who is born and who is living independently of the birth mother is entitled to the same care as any other child similarly diagnosed, regardless of whether labor was induced or occurred spontaneously.

It has never been clear to me why we need to legislate that

which most Members of Congress and the general public already

29

assumed and knew to be the law. But if the majority’s interested

in a belts-and-suspenders approach and in restating the law, so be

it.

This same measure passed just recently as an amendment to the

Patients’ Bill of Rights legislation in the Senate by a vote of 98 to

nothing, which is about as uncontroversial as something can get.

Even such pro-choice Members as our colleague, the junior Senator

from California, spoke in favor of it.

I am pleased that the majority has made a serious effort to make

clear that this bill has nothing to do with matters related to abortion, even going so far as to add a subsection (C) further clarifying

that point.

Whatever concerns we may have had last year that this might

become some clever way to undermine the rights protected under

Roe v. Wade have, I think, been addressed. Unless someone attempts to disrupt this effort by dragging the abortion debate back

into it, I have little doubt that this bill will be passed without

much controversy.

I would like to address the concern that our Republican colleague, the gentlewoman from Connecticut, Mrs. Johnson, has

enunciated most eloquently; that is, the standard of care employed

by neonatologists when faced with a non-viable newborn or a clearly critically ill or massively deformed newborn.

These are difficult medical issues and often horrendous circumstances which confront hopeful families every day. I am cognizant of the fact that these are complex issues which doctors, hospitals, families, and courts grapple with every day.

I would quote the Committee’s report from the last Congress

which makes clear that this legislation, quote, ‘‘would not mandate

medical treatment where none is currently indicated. While there

is a debate about whether or not to aggressively treat premature

infants below a certain birth weight, this is a dispute about medical efficacy not regarding the legal status of the patient. That is,

the standard of medical care applicable in a given situation involving a premature infant is not determined by asking whether the infant is a person. This legislation would not affect the applicable

standard of care, but would only ensure that all born-alive infants,

regardless of their age and regardless of the circumstances of their

birth, are treated as persons for purposes of Federal law.’’ Close

quote.

I do not want to trivialize the concerns of neonatologists, but I

was gratified by the testimony that we received from the majority

witnesses at our Subcommittee hearing on this legislation, which

indicated that while an infant may be considered born alive under

this legislation, it would not in any substitute the medical judgment of Congress for the judgment of doctors on the scene or interfere with the painful decisions that families must make under the

most difficult of circumstances. We must respect families and not

have the big hand of government make their worst moments even

more unbearable.

I trust that the sponsors of this legislation are in agreement on

this point.

There has been a great deal of debate over the question about

whether there is some sort of recognized legal right to a dead baby

when a parent intends to abort a fetus. My colleagues well know

30

that the line drawn by the Supreme Court is that of viability within the womb and that outside the womb the normal laws governing

the appropriate care of newborns, taking into account the prognosis

made by a trained health care provider, apply. This bill simply restates the law as we always knew it to be.

The rather horrific accounts told by the majority witnesses at the

Committee, the same accounts and the same witnesses this year as

last, are already illegal, as far as I know, in every State under the

Union, and they make a case for better enforcement of the law, but

not for any legislation.

This legislation is unnecessary but I believe harmless. If it helps

the majority in some way to assuage somebody’s conscience, I see

no reason to oppose it, as long as it is clear that this has nothing

to do with abortion. There is no such thing as ‘‘born-alive abortions.’’ That’s a figment of somebody’s imagination. And we will not

fall into a trap, which, again, the majority has assuaged with some

clear language this year, of opposing this bill on any such grounds.

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

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

this process.

Thank you, Mr. Chairman. I yield back.

Chairman SENSENBRENNER. Are there amendments? The Chair

hears none. Reporting quorum is present. The question occurs on

the motion to report H.R. 2175 favorably. All in—all in favor, say

aye? Opposed, no? The ayes appear to have it.

The ayes have it. The motion—— Mr. CHABOT. Mr. Chairman? Mr. Chairman, could we have a recorded vote on that, please?

Chairman SENSENBRENNER. Roll call is requested. The Chair will

order a roll call. Those in favor of reporting H.R. 2175 favorably

will, as your names are called, answer aye; those opposed, no; and

the clerk will call the roll.

The CLERK. Mr. Hyde?

Mr. HYDE. Aye.

The CLERK. Mr. Hyde, aye. Mr. Gekas?

Mr. GEKAS. Aye.

The CLERK. Mr. Gekas, aye. Mr. Coble?

Mr. COBLE. Aye.

The CLERK. Mr. Coble, aye. Mr. Smith?

Mr. SMITH. Aye.

The CLERK. Mr. Smith, aye. Mr. Gallegly?

[No response.]

The CLERK. Mr. Goodlatte?

[No response.]

The CLERK. Mr. Chabot?

Mr. CHABOT. Aye.

The CLERK. Mr. Chabot, aye. Mr. Barr?

Mr. BARR. Aye.

The CLERK. Mr. Barr, aye. Mr. Jenkins?

Mr. JENKINS. Aye.

The CLERK. Mr. Jenkins, aye. Mr. Hutchinson?

Mr. HUTCHINSON. Aye.

The CLERK. Mr. Hutchinson, aye. Mr. Cannon?

Mr. CANNON. Aye.

The CLERK. Mr. Cannon, aye. Mr. Graham?

31

[No response.]

The CLERK. Mr. Bachus?

[No response.]

The CLERK. Mr. Scarborough?

[No response.]

The CLERK. Mr. Hostettler?

Mr. HOSTETTLER. Aye.

The CLERK. Mr. Hostettler, aye. Mr. Green?

Mr. GREEN. Aye.

The CLERK. Mr. Green, aye. Mr. Keller?

Mr. KELLER. Aye.

The CLERK. Mr. Keller, aye. Mr. Issa?

Mr. ISSA. Aye.

The CLERK. Mr. Issa, aye. Ms. Hart?

Ms. HART. Aye.

The CLERK. Ms. Hart, aye. Mr. Flake?

Mr. FLAKE. Aye.

The CLERK. Mr. Flake, aye. Mr. Conyers?

Mr. CONYERS. Aye.

The CLERK. Mr. Conyers, aye. Mr. Frank?

[No response.]

The CLERK. Mr. Berman?

[No response.]

The CLERK. Mr. Boucher?

[No response.]

The CLERK. Mr. Nadler?

Mr. NADLER. Aye.

The CLERK. Mr. Nadler, aye. Mr. Scott?

Mr. SCOTT. No.

The CLERK. Mr. Scott, no. Mr. Watt?

Mr. WATT. No.

The CLERK. Mr. Watt, no. Ms. Lofgren?

Ms. LOFGREN. Aye.

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?

[No response.]

The CLERK. Ms. Waters?

Ms. WATERS. Aye.

The CLERK. Ms. Waters, aye. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

[No response.]

The CLERK. Ms. Baldwin?

Ms. BALDWIN. Aye.

The CLERK. Ms. Baldwin, aye. Mr. Weiner?

[No response.]

The CLERK. Mr. Schiff?

Mr. SCHIFF. Aye.

The CLERK. Mr. Schiff, aye. Mr. Chairman?

Chairman SENSENBRENNER. Aye.

The CLERK. Mr. Chairman, aye.

Chairman SENSENBRENNER. Are there additional Members who

wish to cast or change their votes? The gentleman from California,

Mr. Gallegly?

32

Mr. GALLEGLY. Aye.

The CLERK. Mr. Gallegly, aye.

Chairman SENSENBRENNER. The gentleman from Alabama, Mr.

Bachus?

Mr. BACHUS. Aye.

The CLERK. Mr. Bachus, aye.

Chairman SENSENBRENNER. Anybody else? If not, the clerk will

report.

The CLERK. Mr. Chairman, there are 24 ayes—— Chairman SENSENBRENNER. Mr. Goodlatte?

Mr. GOODLATTE. Aye.

The CLERK. Mr. Goodlatte, aye.

Mr. Chairman, there are 25 ayes and 2 noes.

Chairman SENSENBRENNER. And the motion to report is agreed

to. Without objection, the staff is directed to make technical and

conforming changes, and without objection, pursuant to House

rules, the Chairman is authorized to go to conference.

(33)

1While the proposed act does not include a specific extension of the ‘‘born alive’’ definition

to the term ‘‘infant,’’ the title and definition of the act suggest the intent to do so. 2 Roe v. Wade, 410 U.S. 113, 161–62 (1973). The Supreme Court held in Roe that a fetus, even

when viable, is not a person under the Fourteenth amendment. Id. at 152–53. Although the

Court found that the State has a compelling interest in the ‘‘potentiality of human life’’ of the

fetus after it reaches viability, it concluded that this interest could not justify prohibiting an

abortion even after the point of viability if the abortion is necessary to preserve the life or health

of the woman. Id. at 162–63.

ADDITIONAL VIEWS

We write as Members who supported the passage of H.R. 2175

in order to clarify our understanding of this legislation based on a

plain reading of the bill’s language and the record made by the

sponsors as to its meaning.

The bill amends title 1, U.S. Code, to add at the end a definition

of the terms ‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ and ‘‘individual’’ to

include ‘‘any infant member of the species homo sapiens who is

born alive at any stage of development.’’ 1 The term ‘‘born alive’’ is

defined to require that a fetus is entirely expelled or extracted from

the mother and shows breathing, ‘‘a beating heart, pulsation of the

umbilical cord, or definite movement of voluntary muscles.’’ The

definition applies regardless of whether the umbilical cord has been

cut or whether the expulsion or extraction occurs through natural

or induced labor, cesarean section, or induced abortion. The viability of the fetus outside the womb is not an element of the definition.

A rule of construction in a new subsection (c), absent from the

version of the bill passed by the House in the 106th Congress,

states that the bill is neutral with respect to abortion rights, providing that the section shall not be construed to ‘‘affirm, deny, expand, or contract any legal status or legal right applicable to any

member of the species homo sapiens at any point prior to being

‘born alive.’ ’’ We believe that this clarification further resolves concerns that this legislation may have been intended as a back-door

effort to affect abortion and reproductive rights rather than applying solely to the status of an infant following birth. It is also consistent with current law. As a general matter, the Supreme Court

has held that ‘‘the unborn have never been recognized in the law

as persons in the whole sense,’’ and the law has been reluctant to

afford any legal rights to nonviable fetuses ‘‘except in narrowly defined situations and except when the rights are contingent upon

live birth.’’ 2

We would note that the full implications of H.R. 2175 are unknown. A complete analysis of the bill would require enormous resources. According to the CRS Memorandum prepared in the 106th

Congress, the terms ‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ and ‘‘individual’’ appear in at least 15,000 sections of the U.S. Code and are

found in over 57,000 sections of the Code of Federal Regulations.

There is no evidence to suggest that the sponsors of this bill have

34

3Kenneth Thomas & Jon O. Shimabukuro, ‘‘The Born Alive Infant Protection Act of 2000,’’ Congressional Research Service Memorandum, at 2, (July 18, 2000). 4Letter of Dr. Gordon B. Avery to Rep. Nadler, June 21, 2001. These are not merely the isolated concerns of an academic neonatologist. In testimony before the Subcommittee in the 106th

Congress, Dr. Francis Sessions Cole of Children’s Hospital in St. Louis stated that the imposition of this universal definition might ‘‘significantly interfere with the agonizing, painful and

personal decisions that must be left to parents in consultation with their physicians.’’ In debate

on the legislation in the 106th Congress, Rep. Nancy Johnson (R-CT) spoke against the bill on

these grounds, saying that it would ‘‘deny parents and deny doctors the right to make decisions

about premature infants. An infant born at 31⁄2 , 41⁄2, 51⁄2 months is a tragedy, and parents in

a free society in America deserve the right to determine what medical care they will have, recognizing that the law requires [that] newborns receive all medically indicated treatment.’’ 146

CONG. REC. H8160 (Sept. 26, 2000). 5 H. Rep. No. 835, 106th Cong., 2d Sess. 13 (Sept. 11, 2000).

examined these Federal laws and regulations to identify all of the

bill’s potential consequences, and the CRS researchers stated that ‘‘an evaluation of the statutory and regulatory impact of the act is

beyond the resources of [their] office.’’ 3

One concern which has been raised is that the bill might affect

decisions with regard to the standard of care owed to a previable

fetus which has been expelled as a result of spontaneous or induced

labor, or to a fetus which is afflicted with massive fetal anomalies.

Dr. Gordon Avery, an expert in the field of neonatology, wrote a

letter to the Committee arguing that H.R. 2175’s definition of ‘‘born

alive’’ was too broad, as non-living entities may show involuntary

movements such a heartbeat or twitching muscles. He expressed

the concern that the definition of ‘‘born alive,’’ which would apply

to severely premature neonates with ‘‘a single gasp, a muscle

twitch, any pulsation of the umbilical cord’’ but no chance of life

outside the womb, would cloud the waters for medical professionals

and families making decisions as to the appropriate standard of

care.4

If, however—as we have been assured by the Majority—the bill

does not change existing law, it should not affect the decisions of

families and neonatologists. Furthermore, according to the Majority

report filed in the 106th Congress, the ‘‘bright line’’ of complete extraction would not constrain or in any way chill medical care given

to a woman or to her offspring:

[H.R. 4292] would not mandate medical treatment where none

is currently indicated. While there is debate about whether or

not to aggressively treat premature infants below a certain

birth weight, this is a dispute about medical efficacy, not regarding the legal status of the patient. That is, the standard

of medical care applicable in a given situation involving a premature infant is not determined by asking whether that infant

is a person. . . . H.R. 4292 would not affect the applicable

standard of care, but would only insure that all born-alive infants—regardless of their age and regardless of the circumstances of their birth—are treated as persons for purposes

of Federal law.5

This accords with the testimony received by the Subcommittee on

the Constitution from Majority witnesses. Dr. Watson A. Bowes,

Jr., a former Chairman of the Committee on Ethics of the American College of Obstetricians and Gynecologists, stated,

‘‘[T]his definition of live birth does not restrict a physician’s prerogative to recommend that medical care regarded as futile be

35

6 Hearing on H.R. 2175, The Born-Alive Infants Protection Act of 2001 Before the Subcomm.

on the Constitution of the Comm. on the Judiciary, 107th Cong., 1st Sess. 33 (July 12, 2001)

(testimony of Dr. Watson A. Bowes, Jr.). 7 Id. at 42.

withdrawn or withheld. It is important to keep in mind that this

bill deals solely with the criteria that define whether an infant is

alive at the time of birth. It does not legislate how physicians and

parents may deal with the decision about withholding or discontinuing medical or surgical treatment that is considered futile

in the care of an infant.’’ 6

In addition, even in the situations described by Majority witness

nurse Jill Stanik, Dr. Bowes stated that ‘‘I don’t think this [legislation] changes medical care for those babies.’’ 7

In light of the fact that H.R. 2175 does not apply to abortion or

other pre-birth decisions concerning human reproduction, and that

it is clear that the bill does not substitute the judgement of Congress for the judgement of a qualified health care provider, we remain puzzled about the ultimate purpose of this legislation. Insofar

as it prohibits the killing of an infant following a live birth, or the

denial of treatment where it would be medically indicated and legally required under current law and practice, it reflects the laws

of all 50 States, the District of Columbia and the territories of the

United States. It is unfortunate that the bill provides a platform

for the overheated rhetoric of a few who wish to suggest that viable

healthy infants are being permitted to die in our nation’s hospitals,

even though the sponsors have never been able to point to so much

as one prosecution connected with these alleged activities.

With these understandings and clarifications from the sponsors

and their witnesses, we are able to support this legislation.

JOHN CONYERS, JR.

BARNEY FRANK.

HOWARD L. BERMAN.

JERROLD NADLER.

ZOE LOFGREN.

SHEILA JACKSON LEE.

MAXINE WATERS.

MARTIN T. MEEHAN.

WILLIAM D. DELAHUNT.

TAMMY BALDWIN.

(37)

1Kenneth Thomas and Jon Shimabukuro, ‘‘The Born-Alive Infants Protection Act of 2000,’’

CRS Memorandum, p. 1, fn. 1 (July 18, 2000). 2 Id.

3 Congressional Budget Office, Cost Estimate: H.R. 4292 (August 22, 2000)

4 Id.

DISSENTING VIEWS

We voted against H.R. 2175, the ‘‘Born-Alive Infants Protection

Act,’’ at the July 24, 2001 House Judiciary Committee markup because this bill has not been studied in a responsible way before

being considered by the Judiciary Committee.

According to the Congressional Research Service’s (CRS) analysis

of the bill’s virtually identical predecessor from the 106th Congress

(H.R. 4292), this bill would amend some 15,000 provisions of the

U.S. Code and 57,000 provisions of the Code of Federal Regulations.1 Both the CRS and the Congressional Budget Office (CBO)

reviewed the earlier version of the bill and neither reached a definitive conclusion about what the bill would do. The CRS concluded:

A definitive statutory analysis of the effect of the proposed act

would require a review and evaluation of the use of the terms

‘‘person,’’ ‘‘human being,’’ ‘‘child,’’ and ‘‘individual’’ as they appear in all Federal statutes and in agency rulings, regulations

or interpretations. A computer search of these terms reveals

that they appear in over 15,000 sections of the United States

Code, and in over 57,000 sections of the Code of Federal Regulations. Consequently, an evaluation of the statutory and regulatory impact of the act is beyond the resources of our office.2

Similarly, the CBO concluded: ‘‘Because the words ‘person,

human being, child, and individual’ are used frequently throughout

the United States Code, CBO cannot determine how the new definitions could be interpreted in all situations.’’ 3

As we understand the bill’s proponents, they intend to codify and

reaffirm, not change, the substantive law. If the purpose of the bill

is only to restate present law, then the best way to do that is to

pass no bill at all.

Changing the definition of the terms ‘‘person,’’ ‘‘human being,’’

‘‘child,’’ and ‘‘individual’’ as they appear in more than 72,000 Federal statutes and regulations carries an enormous risk of unintended consequences. The statutes and regulations prospectively affected could include, for example, such wide-ranging topics as

criminal laws, inheritance laws, tax laws, tort laws, insurance laws

and programs that provide benefits. Moreover, as stated by the

CBO: ‘‘[b]ecause definition changes in this bill would affect such a

large number of citations in the United States Code, CBO cannot

determine with certainty whether those changes might impose new

enforceable duties on State, local, and tribal governments or the

private sector.’’ 4

38

In addition, the definitional changes proposed by the bill could

create potential confusion and conflicts with State law definitions

of what constitutes life and death. An infant could be ‘‘born alive’’ under the new definition in Federal law, but never considered alive

under a State statute that determines life based on brain activity.

In light of the many unanswered questions about the effects of

the bill, we do not have the certainty necessary to favorably report

a bill to the House. Although the original version of this bill was

introduced over a year ago, its sponsors have yet to provide any

substantive analysis on the effects of the bill, or that the bill will

work its symbolic purpose with no unintended consequences or conflicts.

In the end, H.R. 2175 may prove to be the symbolic bill its proponents contend that it is. However, we are not able to reach that

conclusion today, and we stand on our vote against this bill.

ROBERT C. SCOTT

MELVIN L. WATT

Æ