SPEAKERS CONTENTS INSERTS
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BORN-ALIVE INFANTS PROTECTION ACT OF 2000
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
JULY 20, 2000
Serial No. 120
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Page 3 PREV PAGE TOP OF DOCSPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
Page 4 PREV PAGE TOP OF DOCCHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
July 20, 2000
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Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
Arkes, Hadley, Edward Ney Professor of Jurisprudence and American Institutions, Amherst College
Baker, Allison, Charlottesville, VA
Bowes, Watson A., Jr., M.D., Professor Emeritus, Department of Obstetrics and Gynecology, University of North Carolina at Chapel Hill School of Medicine
Bradley, Gerard V., professor of law, Notre Dame Law School
Cole, F. Sessions, M.D., Professor of Pediatrics and Cell Biology and Physiology, Washington University School of Medicine, St. Louis, MO
George, Robert P., McCormick Professor of Jurisprudence, Department of Politics, Princeton University
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Hile, Matthew G., research associate professor, University of Missouri-Columbia Medical School
Jessen, Gianna, Franklin, TN
Jones, Hon. Stephanie Tubbs, a Representative in Congress From the State of Ohio
Stanek, Jill L., Mokena, IL
Thomas, Kenneth, legislative attorney, American Law Division, Congressional Research Service, the Library of Congress
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Arkes, Hadley, Edward Ney Professor of Jurisprudence and American Institutions, Amherst College: Prepared statement
Baker, Allison, Charlottesville, VA: Prepared statement
Bowes, Watson A., Jr., M.D., Professor Emeritus, Department of Obstetrics and Gynecology, University of North Carolina at Chapel Hill School of Medicine: Prepared statement
Page 7 PREV PAGE TOP OF DOC Bradley, Gerard V., professor of law, Notre Dame Law School: Prepared statement
Cole, F. Sessions, M.D., Professor of Pediatrics and Cell Biology and Physiology, Washington University School of Medicine, St. Louis, MO: Prepared statement
George, Robert P., McCormick Professor of Jurisprudence, Department of Politics, Princeton University: Prepared statement
Hile, Matthew G., research associate professor, University of Missouri-Columbia Medical School: Prepared statement
Jessen, Gianna, Franklin, TN: Prepared statement
Jones, Hon. Stephanie Tubbs, a Representative in Congress From the State of Ohio: Prepared statement
Stanek, Jill L., Mokena, IL: Prepared statement
Thomas, Kenneth, legislative attorney, American Law Division, Congressional Research Service, the Library of Congress: Prepared statement
Material submitted for the record
Page 8 PREV PAGE TOP OF DOCBORN-ALIVE INFANTS PROTECTION ACT OF 2000
THURSDAY, JULY 20, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 10:07 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Asa Hutchinson, Spencer Bachus, Melvin L. Watt, Maxine Waters, Jerrold Nadler, and Robert C. Scott.
Staff present: Cathleen Cleaver, chief counsel, Subcommittee on the Constitution; Bradley S. Clanton, counsel, Subcommittee on the Constitution; Jonathan A. Vogel, counsel, Subcommittee on the Constitution; Susana Gutierrez, clerk, Subcommittee on the Constitution; Sharee Freeman, counsel, Committee on the Judiciary; Anthony Foxx, minority counsel, Subcommittee on the Constitution; and Perry Apelbaum, minority general counsel, Committee on the Judiciary.
OPENING STATEMENT OF CHAIRMAN CANADY
Page 9 PREV PAGE TOP OF DOC Mr. CANADY. The subcommittee will be in order.
This morning the Subcommittee on the Constitution convenes to hear testimony concerning H.R. 4292, the Born-Alive Infants Protection Act of 2000. It has long been accepted as a legal principle that infants who are born alive are persons entitled to the protection of the law, and that a live birth occurs whenever an infant in any stage of development is expelled from the mother's body and displays any of several specific signs of lifebreathing, a heartbeat, or definite movements of voluntary muscles.
[The bill, H.R. 4292, follows:]
H. R. 4292
To protect infants who are born alive.
IN THE HOUSE OF REPRESENTATIVES
APRIL 13, 2000
Mr. CANADY of Florida introduced the following bill; which was referred to the Committee on the Judiciary
To protect infants who are born alive.
Page 10 PREV PAGE TOP OF DOC Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Born-Alive Infants Protection Act of 2000''.
SEC. 2. DEFINITION OF BORN-ALIVE INFANT.
(a) IN GENERAL.Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
''§8. 'Person', 'human being', 'child', and 'individual' as including born-alive infant
''(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words 'person', 'human being', 'child', and 'individual', shall include every infant member of the species homo sapiens who is born alive at any stage of development.
''(b) As used in this section, the term 'born alive', with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.''.
(b) CLERICAL AMENDMENT.The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by adding at the end the following new item:
''8. 'Person', 'human being', 'child', and 'individual' as including born-alive infant.''.
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Mr. CANADY. Many States have statutes that 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.
Just weeks ago, for example, in Stenberg v. Carhart, the United States Supreme Court struck down a Nebraska law banning partial-birth abortion, a procedure in which an abortionist delivers an unborn child's body until only the head remains inside of the mother, punctures the back of the child's skull with scissors, and sucks the child's brains out before completing the delivery.
What was described in Roe v. Wade as a right to abort unborn children has now been extended by the Court to include the violent destruction of partially born children just inches from birth.
The logical implications of the Court's holding in Stenberg are both obvious and disturbing. Consider what the Stenberg decision means for a child who survives a botched abortion and is born alive. If the right to abortion entails the right to kill without regard to whether the child remains in the mother's womb, it would seem to follow that infants who are marked for abortion but somehow survive have no legal right to appropriate medical care or any care at all. And if a child born alive after a botched abortion does not receive the protection of the law, what is to prevent an abortionist from simply delivering a child and then killing it?
Page 12 PREV PAGE TOP OF DOC It has been successfully argued before the Supreme Court that killing a partially born child is, at least in some circumstances, necessary to protect the health of the mother. An equally plausible argument might be made that in some cases preservation of the mother's health requires that a child be fully delivered before it is killed. If partial-birth abortion is protected by the Constitution, why not post-birth abortion?
The principle that born-alive infants are entitled to the protection of the law is also being questioned in one of America's most prestigious universities. 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, and I quote, ''A period of 28 days after birth might be allowed before an infant is accepted as having the same right to live as others.''
The legal and moral confusion that flows from these pernicious ideas is well illustrated by events that happened last year in Cincinnati, Ohio, after a young woman learned she was pregnant and sought the assistance of abortionist Dr. Martin Haskell, inventor of one variation of the partial-birth abortion procedure. Dr. Haskell performed the first step of the partial-birth abortion proceduredilating the woman's cervixand she was to return the next day. That evening the woman began experiencing severe abdominal pains and reported to the emergency room. While she was being examined, she gave birth to a baby girl.
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, Shelley Lowe, saw the baby girl in the dish, she was stunned when she saw the girl gasping for air.
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The doctors examined the baby and concluded it was unlikely she would survive. By some estimates, the baby was born at 22 weeks, although some members of the hospital staff believed she was older.
Ms. Lowe then 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. 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. And although it is impossible to determine at this point whether a reassessment would have made any difference in Baby Hope's ultimate survival, the lack of any such reassessment coupled with the attending physician's initial placement of then-breathing Baby Hope in a specimen dish at least raises serious questions as to whether a similarly situated infant who was wanted by her mother would have received the same treatment.
We will also hear testimony today at this hearing regarding disturbing events at a hospital in Illinois. H.R. 4292, the Born-Alive Infants Protection Act of 2000, was designed to repudiate the pernicious and destructive ideas that have brought the live-birth principle into question, and it firmly establishes 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 his or her lung development is believed to be or is, in fact, sufficient to permit long-term survival and regardless of whether the baby survived an abortion.
The bill would not require medical personnel to provide medical treatment that is not currently mandated under the applicable standard of care. Instead, the bill would only ensure that all born-alive infants, regardless of their age and regardless of the circumstances of their birth, are treated the same for purposes of Federal law.
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I now recognize Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
It may come as a surprise to some people here that I want to start my comments this morning by commending the chairman of the subcommittee and the chairman of the full committee. Their level of persistence on this issue leaves one feeling that they have to be amazed and complimentary of their commitment. They get slapped down by the Supreme Court. It doesn't matter. They just bounce right back and find a new way to approach the issue.
And as one who has been accused in life of being persistent on some issues, I have to express my admiration for that. And I think they are to be commended for that in sticking to this and pursuing it.
I want to also commend the chairman for having this hearing today. Hearings serve a very, very valuable purpose in our process because they give us the opportunity to get the opinions and perspectives and input of people from outside the congressional system in the real world, and that is extremely important to the legislative process, and hearings serve a very, very valuable purpose.
When, however, the hearing notice is accompanied or followed shortly by a notice of a markup of the bill the next day, one leaves feeling a little like maybe the hearing is more of a show and a charade than a real effort to evaluate the pros and cons of the legislation that is being considered and provide an opportunity to understand its real consequences and evaluate whether it needs to be fixed here or there.
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Now, this is a short bill. It is, I think one-page long. So, clearly, it can be read quickly. We were about to take up a bill in the full committee yesterday where we got a substitute at almost 6 o'clock the day before yesterday that was close to 100 pages long, and asked to start a markup of the bill or the substitute the following morning.
But I am told thatand I think the testimony will actually bear this outthere are some 15,000 sections of the U.S. Code and over 57,000 sections of the Code of Federal Regulations in which the terms ''person,'' ''human being,'' ''child,'' or ''individual'' are used. And while it is nice to understand and try to accomplish the one singular purpose for which this bill is introduced, we as legislators, if we are not single-issue legislators, have an obligation to the public to understand the consequences that a bill would have in other contexts. And I am not sure that between now and tomorrow I will even have the opportunity to read the testimony of the witnesses who testify today, much less look at the 15,000 sections of the U.S. Code or 57,000 sections of the Code of Federal Regulations and have any appreciation of what this bill does for the totality of the law as opposed to the singular purpose for which this bill was introduced.
So I am trying to be balanced. I want to applaud the persistence of my chairman. I want to applaud the fact that we are having a hearing. Whether it is for show purposes or for charade purposes, it can certainly not do any harm. I am not sure it is going to be able to do a lot of good between now and tomorrow in a full understanding of the bill as we move to a markup, which is scheduled tomorrow. But at least we are having a hearing, and I intend to sit right here and listen to every word of testimony and try to understand as best I can the implications of what is being proposed. And I certainly appreciate those witnesses who have given of their time to come and participate, whether they are participating in a real effort to shape public policy or whether they are participating in a charade.
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I thank the gentleman for having the hearing, and I yield back.
Mr. CANADY. I would like to now ask the members of the first panel of witnesses to come forward, to take your seats, if you would, and I will proceed with the introduction of those who will be making presentations on the first panel.
On our first panel today, we will hear from Professor Hadley Arkes, the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. Professor Arkes has been teaching at Amherst for 33 years and has also visited on leave from Amherst at the Ethics and Public Policy Center, the Brookings Institution, the Woodrow Wilson Center at the Smithsonian Institution, and Georgetown University. Professor Arkes has written several books and numerous articles on political philosophy, public policy, and constitutional law, and, I should add, has a longstanding interest in the subject of today's hearing.
The second witness on this panel will be Allison Baker, a registered nurse from Charlottesville, Virginia. Ms. Baker will be testifying regarding her experience as a nurse in the delivery ward of Christ Hospital in Oak Lawn, Illinois.
Following Ms. Baker will be Jill L. Stanek, of Mokena, Illinois. Ms. Stanek is a registered nurse and will also be sharing her experiences as a nurse in the delivery ward of Christ Hospital in Oak Lawn, Illinois.
After Ms. Stanek, we will hear from Dr. Matthew G. Hile. Dr. Hile is a research associate professor of psychiatry at the Missouri Institute of Mental Health of the University of Missouri-Columbia School of Medicine in St. Louis, Missouri. He will be sharing his family's experiences following the birth of his daughter, Amelia, who was born with severe birth defects.
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To conclude our first panel, we will hear from Gianna Jessen, of Franklin, Tennessee. Ms. Jessen will be sharing her experiences as a survivor of an attempted abortion. In addition to speaking regularly all across the country, Ms. Jessen writes music and is currently collaborating with other musicians on a soon to be released compact disc, and I would like to also note that Ms. Jessen has testified previously before the Judiciary Committee.
I want to thank all of you for being with us this morning, and I would ask that you do your best to summarize your testimony in 5 minutes or less. And, without objection, your written statements will be made a part of the permanent hearing record.
STATEMENT OF HADLEY ARKES, EDWARD NEY PROFESSOR OF JURISPRUDENCE AND AMERICAN INSTITUTIONS, AMHERST COLLEGE
Mr. ARKES. Thank you. Chairman Canady, Congressman Watt, good to see you again.
Mr. WATT. Is your microphone on?
Mr. ARKES. Is this on? We could raise the money, but it would be wrong. Can you hear me?
Page 18 PREV PAGE TOP OF DOC I am here to speak today in support of H.R. 4292, the Born-Alive Infants Protection Act. Congressman Canady's bill offers the gentlest and the most modest first step of all in engaging the question of abortion. This measure also runs to the root and it offers the best chance of drawing all sides into a conversation and achieving the kind of settlement that I think can be achieved only by the political branches of this country.
We have been told quite often that the country is highly divided on this question. Actually, there are large areas of consensus which haven't been able to express themselves politically because this matter has been ruled so thoroughly and exclusively by the courts. But we need a conversation before we could ever legislate again.
Congressman Canady's bill would begin a conversation at a point that would draw support even from people who call themselves pro-choice. Our friends on the other side have insisted that abortion is not infanticide, which implies that they are willing to protect the child at some point. We take that quite seriously, and we suggest that we begin at this, the gentlest point of all. Could we not simply agree to protect the child who survives the abortion? That is the earliest point at which the interests of the mother and the child can be detached. Nothing in the move to protect the child impairs any right to abortion or any right to end a pregnancy because the abortion and the pregnancy have ended.
With this simple measure, we make these simple but momentous points: that the child has a claim to the protection of the law that doesn't pivot on the question of whether anyone happens to want her. The child then bears an intrinsic significance that is not dependent on the interests or convenience of anyone else. Her injuries then count. They have standing in the eyes of the law.
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In a notable case in 1977, Floyd v. Anders, a child survived for 20 days from an abortion and a surgery. The question was posed as to whether there was an obligation to preserve the life of that child, and the answer tendered by Judge Clement Haynsworth was no. That was not a child protected by State law. That was a fetus marked for termination. In other words, the right to an abortion entailed the right to an effective abortion or a dead child.
Justice Powell once remarked in passing that this kind of an argument was remarkable. But to say that it is remarkable is not the same as saying that it is wrong, and still less is it to explain the grounds of the wrongness. This bill offers the chance for Congress to do exactly that, and the problem is made all the more urgent for us by the decision of the Court 3 weeks ago in Stenberg v. Carhart. The Court with that decision brought us to a new threshold of crisis by bringing us to the threshold of accepting infanticide itself. The Court established, in effect, that the law could not protect a child even at the point of birth if that protection might, just might inhibit a childinhibit an abortioncouldn't protect the child to the point of birth if it might inhibit an abortion.
In the hands of Justice Breyer, as Congressman Canady suggested, the argument in defense of partial-birth abortion is at one with the argument that would justify delivering the baby whole and letting it die if that procedure would be arguably safer for the mother.
Our friends on the other side can't be warranted in arguing that the claim is far-fetched or inconceivable that the right to an abortion is the right to an effective abortion or a dead child. Regrettably, it is quite conceivable, and the courts seem to be concerting now to make that claim more and more plausible. The burden, I am afraid, truly lies with our friends on the other side to make it clear that the right to an abortion does not entail for them the right to infanticide.
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Now, it doesn't take rare powers of conjecture to anticipate the argument that, yes, we would like to protect the child, but we don't want to take the first steps in getting the Federal Government involved in abortion. And we are lucky to hear this even from people who were supporting FOCA years ago who didn't think that the Constitution cast up barriers to Congress legislating on the matter of abortion.
But there is a curious screening here of the powers of Congress and the principles of the Constitution. One would think that the Federal courts are somehow not part of the Federal Government. But we can ask: How is it possible that the Federal courts can address abortion in all of its dimensions, yet people could argue for keeping the Congress and the National Government away from the subject?
People seem to be forgetting here the deepest axioms of the American Government. Chief Justice Marshall once observed in Cohens v. Virginia in 1821 that the judicial power of every well constituted government must be co-extensive with the legislative, and must be capable of reaching every question that arises out of the Constitution and laws. But people curiously seem to forget the corollary that if the Court can articulate new rights under the 14th amendment, civil rights or right to abortion, the legislative branch must be empowered also to vindicate those same rights and, in filling them out, marking their limits. The one thing that should not be tenable under this Constitution is that the Court can articulate new rights and then assign to itself a monopoly of the legislative power in shaping those rights.
The ground on which we take this simplest of all measures will clarify our understanding of the human person as a bearer of rights. To rework a line of Lincoln's, we might say that in securing this simplest of all rights, we secured the rights of us all, born and unborn. And to take one other line of Lincoln from another occasion, this step, this has been so long in thethis is the simplest of steps that, as Lincoln once said, made the vast future not lament our having failed to take it now.
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[The prepared statement of Mr. Arkes follows:]
PREPARED STATEMENT OF HADLEY ARKES, EDWARD NEY PROFESSOR OF JURISPRUDENCE AND AMERICAN INSTITUTIONS, AMHERST COLLEGE
Chairman Canady, Members of the Committee:
My name is Hadley Arkes. I am currently the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. I've taught at Amherst since 1966, with the exception of several years in which I have been in Washington on leave and visiting at places like the Brookings Institution and the Woodrow Wilson Center at the Smithsonian Institution. My main interests as a writer and a teacher have been focused on political philosophy, public policy, and constitutional law. I have written, in that vein, several books, published by Princeton University Press, including The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). I have had a strong interest in the so-called ''life issues,'' of abortion and euthanasia, but those interests spring from the central concern in my work, which involves the moral ground on which the laws would have to find their justification.
The bill introduced by Congressman Canady, HR4292, the ''Born-Alive Infants Protection Act'' offers the most modest and the gentlest step that is imaginable in dealing with the question of abortion; and at the same time it is the approach that goes most deeply to the root of things. That combination, of the gentlest measure, and the measure running deepest, offers the best chance we have seen, over the past 27 years, to draw all sides into a conversation, and achieve the kind of settlement of this issue in our politics that can only be achieved by the political branches. The political branches are more sensitive than the Supreme Court to the range of opinions in the country on this vexing issue of abortion, and yet the issue has been more explosive and troubling in our politics precisely because it has been kept under the exclusive control of the courts. It has been detached then from the political arena, the arena of ordinary discourse, among ordinary people, about the things that are right or wrong.
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The refrain has been heard, at every turn, that abortion is one of the most emotional and divisive issues in our politics. That cliche happens to conceal the fact that there has been, for years, a remarkable measure of consensus in this country on abortion, a consensus that draws in Democrats as well as Republicans, pro-choicers as well as pro-lifers. But that consensus has not been able to manifest itself in our laws, because the opinions of the public have not been allowed to shape the laws that the courts will permit. At the same time, I've made the argument over the years that our problems here would not be solved even if the elves could come in the middle of the night and remove Roe v. Wade from the records of our law. Even if that decision were overruled overnight, the distemper and rancor in our political life would not be removed. For many people would feel themselves dispossessed of something they have been encouraged to regard by now as one of their first freedoms under the Constitution, a right that anchors all of their other rights to privacy and sexual freedom.
Evidently, we would need a conversation before we could begin to legislate on this question. But what makes that conversation possible is the fact that there has been, as I say, a surprising degree of consensus that has not been allowed to manifest itself on this matter of abortion. We know, for example, that even people who call themselves ''pro-choice'' do not think that all abortions should be permitted. Indeed, they have expressed a willingness to restrict, through the law, a large number of abortions that are now permitted in the law. The news that took years finally to break through to the American public is that the laws on abortion in this country, fashioned by the courts, permit abortion for any reason at all, through all stages of the pregnancyand even, as we have seen, at the time of a live birth, with the partial-birth abortion. But the surveys, on all sides, have shown for years that only about 2227 per cent of the public supports this policy of abortion on demand, for any reason, at any time. Even many people who call themselves pro-choice do not think that abortions should be performed in the late stages of pregnancy, and for less than weighty reasons. People may support a right to abortion under some circumstances (most notably, when the life of the mother is endangered), but many of them still hold that a human life should not be taken for the sake of removing financial strain in the family, removing barriers to the career of a woman, or serving the convenience of the parents.(see footnote 1) Most people do not think that abortions should be performed because the child is likely to be deaf or blind, and the opposition to abortion for these reasons is often quite independent of the age of the unborn child. My own surmise here is that most people think it would be wrong to take the life of any person because he happens to be deaf or blind or handicapped. And if they think this kind of killing would be wrong at any age of the victim, they may well conclude that the principle would be indifferent, in the same way, to the age of the child in the womb.
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I could go on, but these points have been documented well by now in the public surveys. And yet, this constellation of opinion, rather stable over 25 years, has had no significant impact on the laws on abortion, shaped and sustained by the courts. Congressman Canady's bill offers the chance finally to let that opinion of the public manifest itself in our laws. It does that, also, in the gentlest and most powerful way by beginning the conversation at the place that should command the most overwhelming consensus across our political divisions: the place where we act simply to preserve the life of the child born alive, the child who survives an abortion. That moment marks the earliest possible time, associated with an abortion, when the interests of the pregnant woman can be separated entirely from the interests of the child. Even if Roe v. Wade articulated an unqualified right on the part of a woman to end her pregnancy, the pregnancy would now be over. No right to end the pregnancy would require at this moment the death of the child.
And of course no one, at that moment, claims to be suffering any doubt that we are dealing with a human beingas though the offspring of homo sapiens could have been anything less than human at any phase in its life. This is the first moment then, under our current law, when we should be able to declare, with unchecked conviction, that the law may extend its protections over that child. Or to put it more precisely, that is a moment in which it could be said for that child engaged in an abortion what could be said for any other child, or person, in the country: namely, that the claim of the child to the protections of the law could not possibly pivot on the question of whether anyone happens to ''want'' her. At this moment we are invited to consider whether we could not in fact say then of the child, as we would of any other person, that she bears an intrinsic significance as a human being; that any right on the part of that child to live cannot hinge any longer on the interests or convenience of any other person.
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We would be in a condition truly miserable if we could not count on certain natural human sympathies at work to protect the child, and there seems to be a normal tendency on the part of parents and hospitals to supply that care to the child who surprises everyone by surviving the abortion. And yet, the law frequently comes into play precisely because parents do not always have this inclination to protect their children. As we have ample reason by now to know, some parents may be inclined to abuse or even kill their born children. In the case of abortion, the matter is complicated for us by the fact that the very logic of ''abortion rights'' seems to create a momentum in principle to let the child die. Jill Stanek, who is joining us today in this hearing, offers a report from a respectable hospitable in our own time where that logic has been allowed to play itself out in real cases. She reports on the so-called ''live birth'' abortions, where children are delivered and simply left unattended, to die. I take it as a blessing that we are still capable of reacting with shock, when these cases spring up, but they should have ceased long ago to have caused surprise. From the logic of abortion rights, after all, the case for letting the child die could be eminently plausible. Under the common law, for centuries, well before Roe v. Wade, it was understood that a woman did not have to keep an unwanted child. She could give that child up for adoption. Even now, we may contend, the ''remedy'' for an unwanted child should not be found in destroying the person who is unwanted, but putting that child into hands that would nurture her. The passion for abortion is fed in no small part by the sense, commonly felt, that it would be far easier for a woman to kill an embryo or fetus than to give up what is so evidently a child, and a child who is hers.
The Marxists would find here an expression of bourgeois attitudes on propertythat it is easier to kill the unborn child than to give up what is ''yours.'' No matter how we phrase it, the passion is quite evidently there, and without it, as I say, one cannot account for why women would seek their remedy in abortion rather than adoption. It was that sense of the matter, I think, that lay behind Judge Clement Haynsworth's move, in 1977, to take that passion and restate it as a doctrine of law. In a case called Floyd v. Anders,(see footnote 2) in 1977, a child of about 25 weeks of gestation had survived an abortion, had undergone one surgery, and lived for 20 days before he died. The question had been posed as to whether there had been an obligation to preserve the life of that child. And the answer, tendered by Haynsworth, was no. After all, the mother had decided on an abortion, and therefore, as Haynsworth said, ''the fetus in this case was not a person whose life state law could protect.'' To put it another way, the right exercised by the mother should not be frustrated, or negated, by the accident that the child happened to live. Or to put it more baldly, the right to an abortion must entail nothing less than the right to an ''effective abortion,'' or a dead child.
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Several years later, in Planned Parenthood v. Ashcroft (1983), Justice Powell noted, in a footnote, a doctor who had made that argument quite explicitly: that the right to an abortion meant an effective abortion or a dead child. Justice Powell pronounced that opinion ''remarkable.''(see footnote 3) From that comment, offered in passing in a footnote, even some pro-life lawyers have drawn the inference that the Supreme Court has rejected that argument. One lawyer also recalls, in this vein, that the Supreme Court actually reversed the holding in Floyd v. Anders, or rather sent the case back for a reconsideration. But in an opinion per curiam the Supreme Court sent the case back on the ground that ''the District Court may have reached [its] conclusion on the basis of an erroneous concept of 'viability,' which refers to potential, rather than actual, survival of the fetus outside the womb.''(see footnote 4) In all strictness, none of these comments, or moves, marks an explicit rejection of the claim that the right to abortion entails the right to an ''effective abortion.'' As any lawyer should know, to state that this claim is ''remarkable'' is not exactly the same as pronouncing it ''wrong,'' and still less is it to explain the grounds of its wrongness.
That question, simple but primary, becomes the subject of our business here, with the ''Born-Alive Infants Protection Act.'' As any philosopher or social scientist knows, a description of an outward act hardly serves as an explanation or an account of that act. ''Smith goes to the garage of his neighbor, Jones, and takes the hose hanging on the wall.'' From that description of the outward act, we cannot say just yet whether the sentence describes a theft, or whether Smith had permission for taking the hose. Even if he didn't have permission, he might have been borrowing it, to put out a fire in his home, and with the intention of returning the hose. In a similar way, we can draw no inferences about the understandings at work in our law when we are told say, that ''the dominant practice, among parents, doctors, and hospitals, is to preserve the life of a child who survives an abortion.'' The fact that they do this, or do it most of the time, does not reveal anything to us about the grounds on which they are acting, or the principles that actually govern their actions. That is the question posed in this simple move by Congressman Canady: The bill gives us the chance to fix in the law the principle that actually protects the child. And if that is not in fact the principle that explains the motivations of people on all sides, then that is something quite important for all of us to learn.
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For those of us who have advocated this bill, the principle would run, as I have suggested, in this way: We think that the inclination to protect the child with the law must imply that the child has a claim to the protection of the law that cannot pivot on the question of whether anyone ''wants'' her. The child, that is, has an intrinsic dignity, which must in turn be the source of rights of an intrinsic dignity, which cannot depend then on the interests or convenience of anyone else. When parents commit infanticide with a child two or three years old, we no longer ask whether the child was straining the parents, or whether the child was unwanted. If we understand that we are dealing with a human being, reasons of convenience and self-interest become radically inadequate in supplying a ''justification'' for the killing of the child. We would think that the same understanding must come into place for the child who survives the abortion. Now if such a principle cannot be invoked on behalf of that childif our friends on the other side of the issue of abortion would protect the child but not share these premises of oursthen we would earnestly invite them to explain the principle they would put in its place. If we haven't stated here the reasons that we cast over the child the protections of the law, then what are those reasons?
We are in fact anxious to hear them if people contend in this case that we have it wrong. But we should lodge a proper warning: Any attempt to finesse, or fudge, the question at this point is bound to bear tell-tale signs, and what it would ''tell'' would be quite ominous for anyone that the law protects now with any kind of a right, including that ''right to abortion.'' For example, let us suppose that someone says, ''I would protect the child because the child elicits in me a sense of sympathy.'' But if that were the ground, the explanation has to do more with ourselves, with our feelings, and with our sense of what is pleasing or satisfying to us, or agreeable to our own interests. By implication, of course, there would be no obligation to protect the child when that course of action did not serve our interests or convenience.
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My own sense is that people on either side of the controversy over abortion would not be satisfied with that kind of rationale, and that they would see instantly that there is something deeply wrong in it. But if that is the case, does it not become clear, by implication, as to what we must say instead?: Must we not be moved to say that there is something of an intrinsic dignity in the child, or any other human being, something that compels our respect, quite apart from anything in our self-interest? If that cannot be said for the child, newborn, at these first moments, then what can be said for any of the rest of us at any other time, for any other right? If we cannot speak those words, we would seem to imply that none of us has a claim to be respected, or a claim to be the bearers of rights, unless our presence, or our rights, suit the interests of those around us. What would even a ''right to abortion'' mean under those circumstances? Would it not be then a ''right'' that depends on the sufferance of othersa right that can be abridged or removed when it no longer suits the interests of a majority, or of those who exercise power?
Frankly, I don't see how we can refuse to protect the child at this point without producing a revolution in our law and deciding that, from this day forward, we will treat as a nullity the laws on infanticide. And of course we cannot say, in an offhand way, that infanticide has ceased to be a big deal without backing into the claim that homicide itself has ceased to be a big deal. People may try to finesse the matter by saying that we should wait perhaps a few days, or a week or two, before we extend the protection of the law to the newborn. But that would simply be a thinly disguised way of saying that we will wait in protecting the child until we are clear that the child is acceptable to someone, that it is in someone's interest to keep or ''want'' that child.
Page 28 PREV PAGE TOP OF DOC If I am right, and there is no way of getting around this matter, then Rep. Canady's modest bill does the service of compelling us to face this elementary question about the human person, the question that stands at the heart of the thing. I would not conceal my own hope or expectation here: Once this first premise is planted, it must project itself back into the situation of the child even while still in the womb. After all, if we come to the understanding that the child has an intrinsic significance as a human being, that her claim to be protected by the law does not pivot on whether anyone wants her; then how could that intrinsic significance be affected by anything as contingent or ''extrinsic'' as whether she is only two days or two weeks before birth, or whether she is attached by an umbilical cord to her natural mothers? How could it hinge on the question of just where she happens for the moment to be lodged or where she is receiving her nourishment? Nothing in her intrinsic significance could be affected by things of this kind when she leaves the womb; by the same logic, it cannot be affected by such things a few days or weeks earlier, when she is still in the womb.
I happen to think myself that, once that first premise is granted, the argument to justify abortion can probably be unraveled step by step, It would be my own purpose to keep taking those steps, one at a time, and keep putting the question to people on the other side, who would be reluctant to waive the right to abortion under any set of circumstances. I would indeed raise the question of the child in late term, the child of the ''wrong'' sex, the child afflicted with handicaps. But that is to say, I would earnestly press the question with people on the other side, and attempt to persuade them step by step. None of us can foresee just how far that process may run. It is still open to people on the other side to refuse to go along, to insist that they have not been persuaded. They may not in fact see that the willingness to protect the child at birth bears implications for the protection of the child even earlier. But if so, what can we do except keep the conversation going? Yet, with each step we would have succeeded in saving another cluster of lives, even a handful of lives. And for those lives that are saved, the whole project must be eminently worth doing.
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In the meantime, our friends on the other side must be affected by this burden: Over the last few years, we have seen a controversy in Australia over the treatment of children who survive abortions, and we have seen the most chilling statement on this matter put out in South Africa by the Department of Health, the agency that oversees the practice of medicine in that country. In 1997, the Department put out new guidelines, instructing doctors and nurses that ''if an infant is born who gasps for breath, it is advised that the foetus does not receive any resuscitation measures.''(see footnote 5) In Australia, this past April, a controversy was ignited when doctors, and certain agencies, actually registered their opposition when an agency of the government advised that babies who survive abortions should be given medical care. Mr. Gab Kovacs, the chairman of Family Planning Australia, insisted that babies born at an early gestational age had no realistic chance of survival, and they should be left to succumb. Those are civilized countries, with legal systems based on the British model. But what seems to be at work in both places is a vibrant strand of opinion, holding that the logic of abortion rights entails that right to an ''effective abortion'' or a dead child.
And anyone who follows the decisions of the Supreme Court in this country would know that the Court took us just a step shy of that threshold at the end of June with its decision in Carhart v. Stenberg. Justice Breyer, in his opinion for the Court, argued that the partial-birth abortion (Dilation and Extraction [D&X], as grisly as it is, could still be estimated as safer for the pregnant woman than the more familiar method of dismembering the child in the womb. As Breyer explained:
The use of instruments within the uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create similar dangers. and fetal tissue accidently left behind can cause infection and various other complications.(see footnote 6)
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Is the implication not obvious? The avoidance of the usual method of abortion now warrants killing a child with 70 per cent of the body dangling out of the birth canal. On the same premises, would it not be even safer to deliver the child whole and simply let it die. For the doctor could then wholly avoid the insertion of instruments into the uterine or the dismembering that would allow fetal parts to be left behind, where they could be the cause of infection. With these steps, the Court has brought us to the threshold of outright infanticide, and it takes but the shortest step to cross that threshold. One must wonder then whether the majority in Carhart v. Stenberg is preparing us for a holding even more advanced and astounding. But the point is that it will have ceased to be astounding if we offer no response and permit no line to be drawn finally at infanticide.
To our friends then who say that this bill is not needed, we would have to say: Look about you, and seen plainly what is there. People who share your position think there is not the slightest inconsistency in claiming that there is a right to a dead child, and that the child who survives the abortion has no claim to the protection of the law. The people who make this argument, unashamedly, think that it is not only consistent, but virtually entailed, or made necessary, by the logic of ''abortion rights.'' As you look about you in this country, can we not see, in fact, a notable drift in the same direction, with hospitals such as Christ Hospital in Oaklawn, Illinois, or with the appointment of Prof. Peter Singer to Princeton University. That a leading university would appoint to a prestigious chair an outright defender of infanticide is but one sign in a drift of some parts of liberal opinion, to be far more accepting of infanticide, or at least to break down our moral reservations about infanticide. This is a problem, then, for the liberal contingent in our politics. The new acceptance of infanticide is being absorbed now in the body of their doctrines and their commitments as a political party. If they think that the refusal of care to the child who survives the abortion is, as we say, ''over the top,'' then it has become a matter of high urgency for them finally to say thatand to do something now, both modest and emphatic, to draw that line.
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In making that decision, there is now way gentler than the one Congressman Canady and his colleagues have put before us. Still, I am sure that we shall encounter people who would try to steer around the question by saying, ''We agree with you, but these are rare cases, and as modest as this measure is, it is the first step that allows the Congress to be legislating on abortion. It is the first step toward involving the government in these private questions of abortion.''
There are several layers of fallacies involved in this argument, and I don't expect the least acknowledgment that arguments of this kind will emanate from some of the same people who were passionate, several years ago, in advocating the passage of Freedom of Choice Act. That was an effort to codify in our statutes the holding in Roe v. Wade. The political figures and professors who championed that measure apparently did not think that there was anything in the Constitution that barred the Congress from legislating on the matter of abortion, when it came to protecting and promoting abortion. Toward that end, the full resources of the federal government could indeed reach that private matter of abortion, whether it involved the performing of abortions in the military outposts of this country, or providing counseling and support of abortion in private facilities with federal funds.
But there is a curious screening that comes along with this argument when we turn to restrictions on abortion. And what is screened out, most notably, are the powers of Congress and the very design of the Constitution in the separation of powers. When people argue that the federal government should not be involved in these decisions, I usually ask whether they mean that some effort should be made under Art. III, Section 2, to keep the federal courts from intervening in these questions. But that is not what they mean, and one nearly has the impression that the federal courts are somehow not part of the federal government. The federal courts intervened decisively in this matter of abortion in the early 1970's, and in Roe v. Wade the Supreme Court virtually swept away the laws that restricted abortion in the fifty States. Was that not an intervention of the federal government?
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The federal courts have addressed the question of abortion in all of its dimensions, from the use of prostaglandins, and the methods of abortion, to the facilities in which these surgeries may be performed. But we may earnestly ask: How could the judicial branch of the government have the authority to deal with abortion in all of its dimensions, while the legislative branch would not have the slightest authority to address it in any dimension? A contention of that kind simply wars with the most fundamental things that should be understood about the American Constitution, especially by lawyers and members of Congress. Chief Justice Marshall once remarked on this axiom of the Constitution in Cohens v. Virginia, in 1821: ''[Tlhe judicial power of every well constituted government,'' he said, ''must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws.''(see footnote 7) To put it another way, any issue that arose under the Constitution and laws of the United States had to come within the jurisdiction of the federal courts. And yet, even jurists are persistently taken by surprise by the corollary of that axiom: Any issue that comes within the competence the judicial branch must come, presumptively at least, within the reach of the legislative and executive branches. After all, if the Court can articulate new implications of the Fourteenth Amendmentif the Court can proclaim, say, a deeper right on the part of black people not to suffer discriminations based on racedid Congress not have the power to act on the same clause in the Constitution in vindicating those rights? Congress did exactly that in 1964, and it acted with the wider range of flexibility that a legislative body can summon, when it is not confined, in the style of courts, to the task of addressing cases in controversy between two parties.
We might put the matter finally in this way: If the Court can articulate new rights under the Constitutionincluding a right to abortionthe legislative branch must be able to act, on the same ground in the Constitution, in filling out those rights. But in filling them out, the legislature must have the power to mark their limits or their borders. It should be as plain as anything could be that what is not tenable under the Constitution is that the Supreme Court can articulate new rightsand then assign to itself a monopoly of the legislative power in shaping those rights.
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The genius of the separation of powers is that no one branch can be in complete control over the laws or its own powers. The provision on bills of attainder, for example, means that Congress may not legislate guilt or direct prosecutions under the laws it passes. Congress must work by defining in impersonal terms the nature of the wrong it would forbid, and it must work with the awareness that the law it passes will be placed in other hands to be administered. That is to say, the power to prosecute under the laws may be placed in hands unfriendly to those men and women in Congress who frame the laws. But as John Locke pointed out, that state of affairs provides a wholesome caution to the legislators: ''[T]hey are themselves subject to the law they have made; which is a new and near tie upon them to take care that they make them for the public good.''(see footnote 8) In other words, they have an inducement not to pass laws that they would not willingly see enforced even against themselves. In that respect the logic of the separation of powers draws on the logic of a moral principle: do not legislate for other people a rule that you would not see applied universally, to yourself as well as others.
That is a wholesome principle governing the government in generalwhich means that it is no less wholesome when applied to the judicial branch as well as the legislative.
The Congress did not inject the federal government into the matter of abortion; it was the Supreme Court that did that with crashing cymbals, and reverberations continuing to our day. Since Roe v. Wade, the Congress has not exercised its legislative authority to restrict or cabin or scale down in any way the rights that were proclaimed in that landmark case. But now we are at a point at which the Court has struck down the effort of legislatures in 30 States to protect children at the point of birth from one of the most grisly abortions. The Court has brought us to the very threshold of infanticide, and we are asked now to take a deep breath, avert our eyes, and simply get used to the notion that the right to abortion will be spilling past the child in the womb, to order the deaths of children outside the womb. It has become more critical than ever, at this moment, that a line be drawn. Any right must have its limit, including the right to abortion, and if that limit is not found in outright infanticide, we must ask: where could it possibly be? Congress is acting here in the most modest way simply to establish that limit. As a practical matter, it will affect only a handful of cases, but as I say, it will convey lessons running deep.
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As we have come to understand, important principles may be vindicated even in a single case. Ollie's Barbecue in Birmingham, Alabama, was one family restaurant, but the Civil Rights Act of 1964 was tested and vindicated in the case of that one, local establishment. There may be a score of cases facing us here, with the infants who survive the abortion; and yet the principle has an import that goes well beyond the number of cases. But even so, even if we have but a handful of cases, would there not be a vast good contained in the move to save this handful of lives? From the massive volume of abortions in this countryfrom that 1.3 million carried out each yearwhy should we not take even this small gesture and rescue, from that ocean of deaths, a handful of lives? Why should we disdain that project as an undertaking too small for this Congress9 Let us not confuse the modest with the insignificant.
Lincoln once remarked, in a famous line, that ''in giving freedom to the slave, we assure freedom to the freehonorable alike in what we give, and what we preserve.''(see footnote 9) In this case, we might say that, in setting in place these, most elementary protections for human life, we are securing the ground for all of our rights, for the born as well as the unborn. This is the gentlest step to take, and to paraphrase Lincoln from another occasion, let the vast future not lament our having failed to take it.
Mr. CANADY. Thank you, Professor.
STATEMENT OF JILL L. STANEK, MOKENA, IL
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Ms. STANEK. My name is Jill Stanek, and I am a registered nurse who has worked in the Labor and Delivery Department at Christ Hospital in Oak Lawn, Illinois, for the past 5 years. Christ Hospital performs abortions on women in their second or even third trimesters of pregnancy. Sometimes the babies aborted are healthy, and sometimes they are not.
The method of abortion that Christ Hospital uses is called ''induced labor abortion,'' also now known as ''live-birth abortion.'' This type of abortion can be performed different ways, but the goal always is to cause a pregnant woman's cervix to open so that she will prematurely deliver a baby who dies during the birth process or soon afterward.
The way that the induced abortion is most often executed at Christ Hospital is by the physician inserting a pill called Cytotec into the birth canal close to the vagina. Cytotec irritates the cervix and stimulates it to open. When this occurs, the small, pre-term baby drops out of the uterus, often alive. It is not uncommon for a live aborted baby to linger for an hour or two or even longer. One of these babies was known to live for almost an entire 8-hour shift.
In the event that a baby is aborted alive, he or she receives no medical assessments or care, but is given only what the Christ Hospital calls ''comfort care.'' Comfort care is defined as keeping the baby warm in a blanket until he or she dies, although even this so-called compassion is not always provided. It is not required that these babies be held during their short lives.
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 about 22 weeks old, weighed about a half a pound, and was about 10 inches long, about the size of my hand. He was too weak to move very much, expending any energy that he had trying to breathe. Toward the end of his life 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 little heart was still beating through his chest wall. After he was pronounced dead, we folded his little arms across his chest, tied his hands together with a string, wrapped him in a tiny shroud, and carried him to the hospital morgue where all of our other dead patients go.
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The mark that this little person's untimely death left on my heart will never go away. In large part, I ended up here today because of that baby.
Other co-workers have told me upsetting stories about live aborted babies whom they have cared for. I was told about an aborted baby who was supposed to have spina bifida, but was delivered with an intact spine. Another nurse is haunted by the memory of an aborted baby who came out weighing much more than expectedalmost 2 pounds. She is haunted because she doesn't know if she made a mistake by not getting that baby any medical help. A support associate told me about a live aborted baby who was left to die on a counter in our Soiled Utility room wrapped in a disposable towel. This baby was accidentally thrown in the garbage. Later, when they were going through the trash trying to find the baby, the baby fell out of the towel and onto the floor.
I was recently told about a situation by a nurse who said, ''I can't stop thinking about it.'' She had a patient who was 23-plus weeks pregnant, and it did not look as if her baby would continue to be able to live inside of her. The baby was healthy and had up to a 39 percent chance of survival, according to our national statistics. But the patient chose to abort. The baby was born alive. If the mother had wanted everything done for her baby at Christ Hospital, there would have been a neonatologist, a pediatric resident, a 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-working friend. After delivery, the baby, who showed early signs of thrivingher Apgars improvedwas merely wrapped in a blanket and kept in the Labor and Delivery Department until she died two and a half hours later.
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To me, something is very wrong with a legal system that requires doctors to pronounce babies dead but does not require them to assess babies for life. I am also very uncomfortable with the fact that the very doctors who may be miscalculating birth weights, due dates, or misdiagnosing fetal handicaps are the same ones deciding that these babies should not be assessed after delivery.
Shouldn't these babies be given the simple opportunity for second opinion, just as you and I do? No other children in America are medically abandoned like this.
Thank you for your time.
[The prepared statement of Ms. Stanek follows:]
PREPARED STATEMENT OF JILL L. STANEK, MOKENA, IL
I am a Registered Nurse who has worked in the Labor & Delivery Department at Christ Hospital in Oak Lawn, Illinois, for the past five years. Christ Hospital performs abortions on women in their second or even third trimesters of pregnancy. Sometimes the babies being aborted are healthy, and sometimes they are not.
The method of abortion that Christ Hospital uses is called ''induced labor abortion,'' also now known as ''live birth abortion.'' This type of abortion can be performed different ways, but the goal always is to cause a pregnant woman's cervix to open so that she will deliver a premature baby who dies during the birth process or soon afterward. The way that induced abortion is most often executed at my hospital is by the physician inserting a medication called Cytotec into the birth canal close to the cervix. Cytotec irritates the cervix and stimulates it to open. When this occurs, the small, preterm baby drops out of the uterus, oftentimes alive. It is not uncommon for one of these live aborted babies to linger for an hour or two or even longer. One of them once lived for almost eight hours.
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In the event that a baby is aborted alive, he or she receives no medical assessments or care but is only given what my hospital calls ''comfort care.'' ''Comfort care'' is defined as keeping the baby warm in a blanket until he or she dies, although even this minimal compassion is not always provided. It is not required that these babies be held during their short lives.
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.
Other co-workers have told me many upsetting stories about live aborted babies whom they have cared for. I was told about an aborted baby who was supposed to have Spina bifida but was delivered with an intact spine. Another nurse is haunted by the memory of an aborted baby who came out weighing much more than expectedalmost two pounds. She is haunted because she doesn't know if she made a mistake by not getting that baby medical help. A Support Associate told me about a live aborted baby who was left to die on the counter of the Soiled Utility Room wrapped in a disposable towel. This baby was accidentally thrown into the garbage, and when they later were going through the trash to find the baby, the baby fell out of the towel and on to the floor.
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I was recently told about a situation by a nurse who said, ''I can't stop thinking about it.'' She had a patient who was 23+ weeks pregnant, and it did not look as if her baby would be able to continue to live inside of her. The baby was healthy and had up to a 39% chance of survival, according to national statistics. But the patient chose to abort. The baby was born alive. If the mother had wanted everything done for her baby, there would have been a neonatologist, pediatric resident, neonatal nurse, and respiratory therapist present for the delivery, and the baby would have been taken to our Neonatal Intensive Care Unit for specialized care. Instead, the only personnel present for this delivery were an obstetrical resident and my co-worker. After delivery the baby, who showed early signs of thriving, was merely wrapped in a blanket and kept in the Labor & Delivery Department until she died 2 1/2 hours later.
Something is very wrong with a legal system that says doctors are mandated to pronounce babies dead but are not mandated to assess babies for life and chances of survival. In other words, our laws currently say that babies have no rights to medical oversight until they are dead. We look the other way and pretend that these babies aren't human while they're alive but human only after they are dead. We issue these babies both birth and death certificates, but it is really only the death certificate that matters. No other children in America are medically abandoned like this.
Abortion is a cancer that is literally killing America. It is killing our children while it is killing our consciences. It began when we took God out of our decision-making and proclaimed that the little beings growing inside of women were ''products of conception'' and not little girls and little boys. Who should be surprised that we keep pushing the envelope so that now we are aborting these ''products of conception'' alive? I even work at a hospital named ''Christ'' that does this very thing! It is beyond me to comprehend that we're doing what we're doing now, and so I can't even imagine what horrible ways we will think of next to torture our children. Please help put an end to this by proclaiming infants as American human being homo sapiens with the same legal and medical rights that you and I big people have. Thank you.
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Mr. CANADY. Thank you, Ms. Stanek.
STATEMENT OF ALLISON BAKER, CHARLOTTESVILLE, VA
Ms. BAKER. I am also an RN. I worked at Christ Hospital for a year between the time of August 1998 to August 1999. I am now presently a pediatric nurse in Charlottesville.
During this time, I witnessed three cases. When I first started, I was on day shift. I walked into the Soiled Utility Room to throw something away, and laying on the metal part of the table with nothing underneath, there was a fetus, a baby, moving vigorously, just laying there.
I went out to find the nurse who was responsible for this baby, and she said that the mother had been what they call a therapeutic abortion, as Jill had explained, and that she just didn't have time to do anything with the baby at the time, and that if I could, could I wrap the baby and put the baby in a warmer.
So I went to the Soiled Utility Room, wrapped the baby, and held the baby and found a warmer and placed the baby in the warmer. And for about two and a half hours, the baby maintained a heartbeat, the baby was alive. And for me, that was a new experience. I was there working in a high-risk facility. My patient was a 23-weeker, ruptured, who was trying to save her baby, laying in Trendelenburg position with her head down. So, therefore, I took care of a mom and I took care of an aborted baby.
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The next case that I actually participated in was I had come on to shift and there was a patient that had delivered a baby, a 20-week fetus who had spina bifida. The baby, once again, was alive and the baby had a heartbeat. It took an hour and 45 minutes for this baby to finally expire.
Once again, my question was: What was the right of this baby? Some of the nurses said to me, ''Just leave the baby in the warmer,'' and some of them said, ''Comfort the baby.''
When I was at Christ Hospital, no one explained to me what we were supposed to do, and there wasnurses were doing all various kinds of things.
The last case that I experienced while I was there was a 16-week fetus that was aborted, and the baby was supposed to have had Down's. And the baby at 16 weeks was born with a heartbeat, and the parents thought that the baby would die right away because it was so early. The baby ended up living for approximately 45 minutes, and during this time, the parents were very upset and kept questioning me and other nurses: how come their baby wasn't dead, when was their baby going to die, why was their baby alive?
For me as a nurse in a labor and delivery unit, this was confusing. It was confusing for all the nurses. It was confusing for the parents. They thought they were just doing something good, but yet they had to sit and ask questions of when their baby was going to expire.
For us as nurses, we are taking care of babies that we really want to survive, and we are taking care of babies that are supposed to just die.
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[The prepared statement of Ms. Baker follows:]
PREPARED STATEMENT OF ALLISON BAKER, CHARLOTTESVILLE, VA
In August of 1998 I began working in a high risk labor and delivery unit at Christ Hospital and Medical Center in Oak Lawn, Illinois. When I was hired, I was informed of a procedure called ''therapeutic abortion'' which was performed in the unit. This procedure was reserved for babies with particular conditions such as Down's Syndrome, Spina Bifida, Potter's Syndrome and many others. It was explained to me that in these cases, the mother would have an induced labor to expel the fetus in order to discontinue growth and life. This was an elective procedure and the patient was to be informed of all the details it involved.
Between August of 1998 and August of 1999, I witnessed three particular cases of therapeutic abortions at Christ Hospital first hand. The first occurred on a day shift. I happened to walk into a ''soiled utility room'' and saw, lying on the metal counter, a fetus, naked, exposed and breathing, moving its arms and legs. The fetus was visibly alive, and was gasping for breath. I left to find the nurse who was caring for the patient and this fetus. When I asked her about the fetus, she said that she was so busy with the mother that she didn't have time to wrap and place the fetus in the warmer, and she asked if I would do that for her. Later I found out that the fetus was 22 weeks old, and had undergone a therapeutic abortion because it had been diagnosed with Down's Syndrome. I did wrap the fetus and place him in a warmer and for 2 1/2 hours he maintained a heartbeat, and then finally expired.
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The second case involved a couple who had requested a therapeutic abortion for their 20 week fetus with Spina Bifida. My shift started at 11:00 PM, and the patient delivered her fetus about 10 minutes before I took her as a patient. During the time the fetus was alive, the patient kept asking me when the fetus would die. For an hour and 45 minutes the fetus maintained a heartbeat. The parents were frustrated, and obviously not prepared for this long period of time. Since I was the nurse of both the mother and fetus, I held the fetus in my arms until it finally expired.
The third case occurred when a nurse with whom I was working was taking care of a mother waiting to deliver her 16 week Down's Syndrome fetus. Again, I walked into the soiled utility room and the fetus was fully exposed, lying on the baby scale. I went to find the nurse who was caring for this mother and fetus, and she asked if I could help her by measuring and weighing the fetus for the charting and death certificate. When I went back into the soiled utility room, the fetus was moving its arms and legs. I then listened for a heartbeat, and found that the fetus still was alive. I wrapped the fetus and in 45 minutes the fetus finally expired.
Mr. CANADY. Thank you, Ms. Baker.
STATEMENT OF MATTHEW G. HILE, RESEARCH ASSOCIATE PROFESSOR, UNIVERSITY OF MISSOURI-COLUMBIA MEDICAL SCHOOL
Page 44 PREV PAGE TOP OF DOC Mr. HILE. Mr. Chairman, Honorable Representatives, staff and visitors, my name is Matthew Hile. I hold a Ph.D. in clinical psychology, sit on the Executive Committee of the American Psychological Association Division on Mental Retardation and Developmental Disabilities, and on the St. Louis Children's Hospital Ethics Committee.
However, today I come to offer testimony as the father of Amelia Meliss Hile.
Fourteen years ago, after an apparently normal pregnancy, we were waiting for the much anticipated birth of our first child, and the first grandchild. However, the result was not as we expected, and during a sweltering June and July I kept a very personal journal of the brief days of our daughter's life.
The following has been excerpted from my journal:
June 17th, we had an ultrasound. It always makes me nervous to have all those people bustling about, first one tech, then another, then a doctor2 hours under the scan. We thought there was just some difficulty in getting precise measurements.
June 18th, another sonogram with the head of the genetics department. He came into the room with a tech and our pediatrician. He began talking and showing us things on the monitor, the curved spine, the splayed hips, the twisted legs and feet, the oddly bent hands, and the huge amounts of amniotic fluid. He says we are in for a lot of difficulties and suggests that our baby may not survive. He suspects central nervous system damage. Through our tears, we called the grandparents. Through their tears, they tried to comfort us.
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Meetings with physicians from Children's Hospital, with the Reagan administration and the Baby Doe decision on our mind, we need to understand what the hospital can and cannot do. We need to be clear about our desire to avoid heroic measures. We fear having our role as parents and protectors of our child's welfare snatched from our hands.
June 25th, my wife labors for 13 hours before a C-section. The operating room filled with doctors, nurses, and technicians. 11:14, the baby is born. Simon or Amelia? There is no noise, no crying. They are working on him or her. Silence in the room. The silence is deafening. I let go of my wife's hand to see the child's twisted little body. It is a girl. They try to start an IV, but I cannot watch and turn back to cry with my wife. I go back and forth to touch my daughter as my wife's incision is closed. They wheel Amelia out, taking her to Children's Hospital.
At 3 a.m., I take the long walk through corridors that will soon be familiar. Up to the fifth floor, I am shown how to wash and gown and enter the unit. The nurse introduces herself and shows me how they have hooked up Amelia. Heart rate, respiration, a temperature probe to turn the lights on and off, and an oxygen helmet. Wires, tubes, lights, and alarms are everywhere. I touch Amelia and look, wish her goodnight and gently kiss her. I feel strangely better for having wished her a good night.
June 26th, I visit Amelia for a couple times today. More importantly, I get to hold her in my arms. This poor twisted body. I sit and rock her and cry and cry. I am sorry for her, for us, but mostly for Amelia. As I hold her, I feel a great unexpected warmth wash over me. Until now, she was a potential but not a person to me. Now she is still a potential, but also a person in need of care and nurturing. Someone who needs our intelligence and energy if she is going to survive and someone who needs those same qualities if she is going to have but a little time in this world. She is a person now, and it is, in part, her responsibility to survive and thrive. We will do what we can, but it is up to her.
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June 27th, mother and daughter have the opportunity to bond. I take pictures and cry; sad about the event I was hoping to be celebrating.
Testing begins. CAT scan, abnormal right side of brain development. This rings in my head again and againresounding in its implications. Right side, pattern recognition. Doctor says it may be that she could not recognize high notes or not appreciate the world around her. Not be able to read, listen and understand, hear music or recognize her mother. More tests.
Amelia has periods where she stops breathing and her heart rate drops. Her lips become blue, her skin gray. What if she dies? What if she doesn't die? Do we have the right to subject this child to tubes, wires, lights, and tests? Tests that help diagnose but do nothing to help her. My wife pumps breast milk that our daughter is fed with a tube. Our daughter cannot swallow. She cannot close her eyes. Her arms and legs are put in splints that do nothing.
July 9th, the nurse calls cheerily, ''Oh, she is doing very well, we did have to bag her once and her feed tube is blocked and she had two periods of heart rate stopping, but she is doing great.'' More tests. Brain stem abnormalities with higher cortical function areas also having irregularities. No gag response. Nothing is getting better. Doctor says give her more time. We trust him.
July 14th, we held, cuddled, dressed, and photographed Amelia. She looks betterbetter color. The next day she has two bad heart rate drops, lots of aspirations, and needs a transfusion in the night. The following day she moved a little, but was much slower to recover from heart rate drops. At those times she dies and the technology brings her back.
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July 18th, another meeting with the staff. One young doctor wants to put her on a ventilator. One with more experience says he would not ventilatemedically, he says, this would not be in her best interest.
July 25th, we become angry in a meeting with the medical staff. Why are you making her suffer like this? You have nothing to do to help her. Why do you make her go through this over and over again? Why can't you let her go? If the nursing staff can't do this, we can.
July 26th, after being taught how to gavage feed Amelia, we are allowed to take our daughter into a room by ourselves. We suction, feed, and dress her. We have never been able to take her for a walk in the park. She has never been in the fresh air. She has never seen a tree. We play music, read Winnie the Pooh, and hold her up to the window to see trees through her unblinking eyes. We cry. We choose not to suction her again and let her go. My wife holds the baby to her breast, but she is unable to suckle. We continue to feed her pumped breast milk. Medical staff checks on us throughout the day. After the 10 p.m. feeding, Amelia is looking blue. Amelia lays silently in my wife's arms. After 5 minutes I tried but could find no heartbeat. After 10 minutes I listened with a stethoscope and could hearing nothing. We were still afraid to move her. But Amelia's suffering was over. Her spirit had flown to a better place.
Today I am here to suggest that you have the power to make the journals of others in similar positions have very different and more painful ending. It could read that Amelia suffered for another month or another year before her death. As it was, Amelia lived, in her 31 days, to the fullness of her life. I urge you to leave the agonizing decisions to those most involved, the physicians and families who care deeply about their children.
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[The prepared statement of Mr. Hile follows:]
PREPARED STATEMENT OF MATTHEW G. HILE, RESEARCH ASSOCIATE PROFESSOR, UNIVERSITY OF MISSOURI-COLUMBIA MEDICAL SCHOOL
Mr. Chairman, Honorable Representatives, Staff and visitors:
My name is Matthew Hile. I hold a Ph.D. in Clinical Psychology and am a Research Associate Professor at the University of Missouri-Columbia Medical School. I sit on the Executive Committee of the American Psychological Association's Division of Mental Retardation and Developmental Disabilities and am a member of the Medical Ethics Committee of the St. Louis Children's Hospital.
However, today I come to offer testimony concerning the Born Alive Infants Protection Act (H.R. 4292) as the father of Amelia Meliss Hile.
Fourteen years ago, during a sweltering June and July very much like we are having today, I kept a very personal journal. A journal of the brief days of our daughter's life. A time of suffering for our daughter, Amelia, as well as suffering for her parents, grandparents and all that knew them.
My wife and I very much wanted a baby. We were, and still are, very much in love, were out of school, had been married 10 years and had bought our first home. This baby received ideal prenatal care. My wife lost 10 pounds before she conceived, ate two vegetables every night for dinner, drank absolutely no alcohol, very little caffeine, and we went to the obstetrician regularly.
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We had readied the nursery with curtains and crib, read books on parenting, received gifts from friends and family, and dreamed about our child's future. The grandparents to be called regularly and made plans to come visit the new arrival, who would be the first grandchild on either side of the family.
The following has been excerpted from my journal:
June 17th: Last Thursday we had an ultra sound, it always makes me nervous to have all those people bustling about, first one tech, then another, then a doctor2 hours under the scan. We thought that there was just some difficulty in getting the precise measurements . . .
June 18th: Friday morning a call from the OB, get in for a feta scope now. That afternoon we have another sonogram with the head of the genetics department. He came into the room with a tech and our pediatrician. He begins talking and showing us things on the monitor. He is concerned about the baby's presentation, why was it in this position . . . he goes on to show the curved spine, the splayed hips, the twisted legs and feet, the oddly bent hands and the huge amounts of amniotic fluid. He says we are in for a lot of difficulties and suggests that our baby may not survive. He suspects central nervous system involvement. Through our tears, we call the grandparents. Through their tears they try to comfort us.
Meetings with physicians from Children's Hospital. With the Regan administration and the Baby Doe decision on our minds, we need to understand what that hospital can and cannot do. We need to be clear about our desire to avoid heroic measures. We fear having our role as parents and protectors of our child's welfare snatched from our hands.
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June 25th: My wife labors for 13 hours before a c-section is performed. The operating room filled with Drs, nurses and technicians. At 11:14 the baby is born. Simon or Amelia? There is no noise, no crying. They are working on him or her. Silence in the room. The silence is deafening. I let go of my wife's hand to see the child's twisted little body. It is a girl. I watch them try to start an IV in her little twisted hand, but I cannot watch and turn back to cry with my wife. I go back and forth to touch my daughter as my wife's incision is closed. They wheel Amelia out, taking her to Children's Hospital.
At 3 am I take a long walk through corridors that will soon be familiar. Up to the 5th floor. I am shown how to wash and gown and then enter the unit. The nurse introduces herself and shows me how they have hooked up Amelia. Heart rate, respiration, a temperature probe to turn the lights on and off, and an oxygen helmet. Wires, tubes, lights, and alarms are everywhere. I touch Amelia and look, wish her goodnight and gently kiss her. I feel strangely better for having wished her good night.
June 26th: I visit Amelia a couple of times today. More importantly I get to hold her in my arms. This poor twisted body. I sit and rock her and cry and cry. I am so sorry for her, for us, but mostly for Amelia. As I hold her I feel a great warmth; a feeling washes over me that was unexpected. Until now, she was a potential but not a person to me. Now she is still a potential, but also a person in need of care and nurturing. Someone who needs our intelligence and energy if she is going to survive and someone who needs these same qualities if she is going to have but a little time in this world. She is a person now and it is, in part, her responsibility to survive and thrive. We will do what we can, but it is up to her.
Page 51 PREV PAGE TOP OF DOC June 27th: Mother and daughter have the opportunity to bond. I take pictures and cry; sad about the event I had hoped to be celebrating.
The testing begins. Cat scanabnormal right side brain development. This rings in my head again and againresounding in its implications. Right side, pattern recognition. Doctor says it may be that she could not recognize high notes or not appreciate the world around her. Not be able to read, listen and understand music or recognize her mother. More tests. We do have brain involvement. The geneticist was right.
June 28th: My wife is home and my daughter is not. That is not the way it is supposed to be.
Amelia has periods where she stops breathing and her heart rate drops. Her lips become blue and her skin gray. What if she dies? What if she doesn't die? Do we have the right to subject this child to tubes, wires, lights, and tests? Tests that help diagnose but do nothing to help her. My wife pumps breast milk that our daughter is fed with a tube. Our daughter cannot swallow. She cannot close her eyes. Her arms and legs are put in splints that do nothing.
July 9th: The nurse calls cheerily, ''Oh she is doing very well, we did have to bag her once and her feed tube is blocked and she had two periods of hear rate stopping, but she is doing great!'' This is getting more and more ludicrous. We feel something must be done but we are trapped. She cannot be released to another unit because she is not stable, she cannot die because they keep saving her life, we cannot stop treatment because they won't let us, we have to pay because we are responsible, and we cannot do anything because we are not responsible. We are told it is a medical decision. I wonder about the increased brain damage through these increasing periods of anoxia.
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More testsbrain stem abnormalities with higher cortical function areas also having irregularities. No gag response. Nothing is getting better. Doctor says give her more time. We trust him.
July 14th: We held, cuddled, dressed, and photographed Amelia. She looks a little betterbetter color. The next day she has two bad heart rate drops, lots of aspirations and needed a transfusion in the night. The following day she is better and worse. She moved a little but was much slower to recover from her heart rate drops. At those times she dies and technology brings her back.
July 18th: We have another meeting with the staff. One young doctor wants to put her on a ventilator. One with more experience says he would not ventilatemedically, he says, that would not be in her best interest. We are given good advice, not to wish away our time with her as it may be very brief in the grand scheme of things.
Another week goes by. Another meeting. The decision is made by them to begin to push Amelia to see how much she can do. Since she cannot swallow they decide to suction her only every four hours and not every hour. When I return at 9pm she is laying on her side. She had spittle on her towel and it was apparent that she had not been suctioned. With the assistance of the nurse I got her up and rested her upright on my chest. I started reading Winnie the Pooh and the alarms went off. Her respiration dropped and her heart rate plummeted. She was gray, grayer than I had ever seen her before. A nurse came by to check her. Other nurses walked by, obviously concernedsome wore anti-abortion red roses on their nametags. Amelia was suctioned, and oxygen passed by her face. The nurses say they were never taught how to NOT treat someone.
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July 25th: We become angry in a meeting with the medical staff. What are you doing making her suffer like this?? You have nothing to do to help her, why do you make her go through this over and over again? Why can't you let her go? If the nursing staff cannot do this we can!
July 26th: After being taught how to gavage feed Amelia, we are allowed to take our daughter into a room by ourselves. We suction, feed, and dress her. We have never been able to take her for a walk in the park, she has never been in the fresh air, and has never seen a tree. We play music, read Winnie the Pooh and hold her up to the window to see trees through her unblinking eyes. We cry. We choose not to suction her again, to let her go. My wife holds her baby to her breast but she is unable to suckle. We continue to feed her pumped breast milk. Medical staff checks on us throughout the day. After the 10 pm feeding Amelia is looking blue. Amelia lay silently in my wife's arms. After 5 minutes I tried but could find no heart beat. After 10 minutes I listened with a stethoscope and could hear nothing. We were still, afraid to move her . . . but Amelia's suffering was over. Her spirit had flown to a better place.
Today I am here to suggest that you have the power to make the journals of others in our position have a very different and even more painful ending. It could read that Amelia suffered another month, or another year, before her death. As it was, Amelia lived, in her 31 days, to the fullness of her life. I urge you to leave these agonizing decisions to those most involved, the physicians and families who care deeply about their children.
Mr. CANADY. Thank you, Mr. Hile.
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STATEMENT OF GIANNA JESSEN, FRANKLIN, TN
Ms. JESSEN. I will do my best through this. I am struggling with a head cold today, but we are still here.
My name is Gianna Jessen, and I would like to say thank you for the opportunity to speak today. I count it no small thing to speak the truth. I depend solely on the grace of God to do this. In fact, I invite God here today. I am 23 years old. I was aborted and I did not die. My biological mother was 7 1/2 months pregnant when she went to Planned Parenthood in southern California and they advised her to have a late-term saline abortion.
A saline abortion is a saline salt solution that is injected into the mother's womb. The baby then gulps the solution, it burns the baby inside and out, and then she is to deliver a dead baby within 24 hours.
Ladies and gentlemen, this happened to me. My medical records state: ''Born during saline abortion.''
I remained in the solution for approximately 18 hours and was delivered alive on April 6, 1977, at 6 a.m. in a southern California abortion clinic. There were young women in the room that had already been given their injections and were waiting to deliver dead babies. When they saw me, they experienced the horror of murder. They realized what they had done.
Page 55 PREV PAGE TOP OF DOC Ladies and gentlemen, I unashamedly stand here today and say I was saved by the sheer power of Jesus Christ, and Him alone. I am a Christian and not ashamed.
I should be blind and burned. I should be dead. And yet I live. And I do live. Due to a lack of oxygen supply during the abortion, I live with cerebral palsy.
When I was diagnosed with this, all I could do was lay there, and they said that was all I would ever do. Through prayer and hard work by my foster mother, I was walking at the age of 3 1/2 with the help of a walker and leg braces. At that time I was also adopted into my wonderful family. Today I am left only with a slight limp. I no longer have need of a walker or leg braces.
I am so thankful for my cerebral palsy. It allows me really to depend on Christ for everything.
When the freedoms of one group of helpless citizens are infringed upon, such as the unborn, the newborn, the disabled, and the so-called imperfect, what we do not realize is that our freedoms as a Nation and individuals is in great peril.
I come today in favor of this bill, in favor of the protection of life. I come to speak on behalf of the infants who have died and for those appointed to death. Learned Hand, a well-respected American jurist within our own century said, ''The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near 2,000 years ago, taught mankind that lesson it has never learned, but has never quite forgotten, that there is a kingdom where the least shall be heard and considered side by side with the greatest.''
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Where is the soul of America? Members of this committee, where is your heart? How can you deal with the issues of this Nation without examining her soul? A murderous spiritand I say it again, a murderous spirit will stop at nothing until it has devoured a nation. Psalm 53:13 says: ''The fool has said in his heart, 'there is no God'; they are corrupt, and have done abominable iniquity; there is none who does good. God looks down from heaven upon the children of men''He is even looking now upon this hearing, even now''to see if there are any who understand, who seek God. Every one of them has turned said; they have together become corrupt; there is none who does good, no, not one.''
Adolf Hitler once said, ''The receptive ability of the great masses is only very limited, their understanding is small; on the other hand their forgetfulness is great. This being so, all effective propaganda should be limited to a very few points which in turn should be used as slogans until the very last man is able to imagine what is meant by such words.'' I say that today's slogans are ''a woman's right to choose'' and ''freedom of choice,'' et cetera.
There was once a man speaking from hell, recorded in Luke 16, who said, ''I am tormented in this flame.'' Hell is real and so is Satan, and the same hatred that crucified Jesus Christ 2,000 years ago, still resides in the hearts of sinful people today. Why do you think this whole room trembles when I mention Jesus Christ? It is because He is real, and He is able to give the grace for repentance that we need as Americans. We are proud and boastful and we kill without shame.
He is able to give forgiveness to us, and to this Nation that was once great and is falling, not becausenot because we don't have the technology or the books or the knowledge that we think we're so incredible by. It is because we know better. Good men have stood before us, listen to me, they have stood, they have stood up for righteousness, and today we are nothing but cowards in America. We can't even say the truth because we are so afraid of what our colleagues will think at the expense of life. I have that to say, and I will now continue on with the rest, and I am almost finished. But you listen. I didn't die because I was supposed to be here today to say, Shame on America. And as leaders here today, you have an opportunity, if you are standing up, you continue standing. If you are fighting, you continue fighting for life. I will have none of this. I am an American, and we ought to be good and noble people.
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I will end with this: We are under the judgment of God, whether or not we want to hear it. And I will end by reading this, Romans 5:810, and listen very well: ''But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. Much more than, having now been justified by His blood, we shall be saved from wrath through Him. For when we were enemies we were reconciled to God through the death of His Son, much more having been reconciled, we shall be saved by His life.''
Death did not prevail over, ladies and gentlemen, and I am so thankful.
[The prepared statement of Ms. Jessen follows:]
PREPARED STATEMENT OF GIANNA JESSEN, FRANKLIN, TN
My name is Gianna Jessen. I would like to say thank you for the opportunity to speak today. I count it no small thing to speak the truth. I depend solely on the grace of God to do this. I am 23 years old. I was aborted and I did not die. My biological mother was 7 months pregnant when she went to Planned Parenthood in southern California and they advised her to have a late-term saline abortion.
A saline abortion is a solution of salt saline that is injected into the mothers womb. The baby then gulps the solution, it burns the baby inside and out and then the mother is to deliver a dead baby within 24 hours.
This happened to me! I remained in the solution for approximately 18 hours and was delivered ALIVE on April 6, 1977 at 6:00 am in a California abortion clinic. There were young women in the room who had already been given their injections and were waiting to deliver dead babies. When they saw me they experienced the horror of murder. A nurse called an ambulance, while the abortionist was not yet on duty, and had me transferred to the hospital. I weighed a mere two pounds. I was saved by the sheer power of Jesus Christ.
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Ladies and gentleman I should be blind, burned . . . I should be dead! And yet, I live! Due to a lack of oxygen supply during the abortion I live with cerebral palsy.
When I was diagnosed with this, all I could do was lie there. ''They'' said that was all I would ever do! Through prayer and hard work by my foster mother, I was walking at age 3 1/2 with the help of a walker and leg braces. At that time I was also adopted into my wonderful family. Today I am left only with a slight limp. I no longer have need of a walker or leg braces.
I am so thankful for my Cerebral Palsy. It allows me to really depend on Jesus for everything.
When the freedoms of one group of helpless citizens are infringed upon, such as the unborn, the newborn, the disabled and so called ''imperfect,'' what we do not realize is that our freedoms as a NATION and Individuals are in great peril.
I come today in favor of this Bill, in favor of the Protection of Life. I come to speak on behalf of the infants who have died and for those appointed to death. Learned Hand, a well respected American Jurist (within our own century) said: ''The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near 2000 years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there is a kingdom where the least shall be heard and considered side by side with the greatest.''
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Where is the soul of America?! Members of this committee: where is YOUR heart? How can you deal with the issues of a nation without examining her soul? A murderous spirit will stop at nothing until it has devoured a nation. Psalm 53:13 says: ''The fool has said in his heart, 'there is no God'; they are corrupt, and have done abominable iniquity; there is none who does good. God looks down from heaven upon the children of men, to see if there are any who understand, who seek God. Every one of them has turned aside; they have together become corrupt; there is none who does good, no, not one.''
Adolf Hitler once said: ''The receptive ability of the great masses is only very limited, their understanding is small; on the other hand their forgetfulness is great. This being so, all effective propaganda should be limited to a very few points which in turn, should be used as slogans until the very last man is able to imagine what is meant by such words.'' Today's slogans are: ''a woman's right to choose'' and ''freedom of choice,'' etcetera.
There was once a man speaking from hell (recorded in Luke 16) who said ''I am tormented in this flame.'' Hell is real. So is Satan, and the same hatred that crucified Jesus 2000 years ago, still resides in the hearts of sinful people today. Why do you think this whole room trembles when I mention the name Jesus Christ? It is because He is REAL! He is able to give grace for repentance and forgiveness to you and to America. We are under the judgement of Godbut we can be saved through Christ. Romans 5:810 ''But God demonstrates his own love towards us, in that while we were still sinners, Christ died for us. Much more then, having now been justified by His blood, we shall be saved from wrath through Him. For when we were ENEMIES we were reconciled to God through the death of His Son, much more having been reconciled, we shall be saved by His life.''
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Death did not prevail over me . . . and I am so Thankful!!
Mr. CANADY. Thank you, Ms. Jessen. I want to thank all the members of this panel for your testimony.
There is a vote proceeding on the House floor. The subcommittee will have to stand in recess while the members go to the floor for the vote. We will return for a round of questions, so I appreciate your patience, and I apologize for this interruption.
The subcommittee will stand in recess. I encourage the members to come back immediately after the vote.
Mr. CANADY. The subcommittee will be in order. Again, I apologize for the interruption.
Mr. Watt is recognized for 5 minutes.
Mr. WATT. Mr. Chairman, I just have one question to Mr. Arkes. I do want to express my thanks to the other witnesses for being here, and I think seating Mr. Hile and Ms. Jessen beside each other certainly points up the very difficult issues that this is designed to address.
Page 61 PREV PAGE TOP OF DOC This is not a trick question, Mr. Arkes
Mr. ARKES. Oh, I would never suspect a trick question, Mr. Watt. [Laughter.]
Mr. WATT. The only question I have is whether you have done any analysis whatsoever of what implications, if any, this has on other areas of the law. And if you haven't, that is fine. If you have, I would like to know
Mr. ARKES. Yes, I have looked at a few of the statutes, just canvassing several of them, but it struck me, after your comments before, that you could offer this interesting thought experiment.
Let's say it was 1861 when
Mr. WATT. Could you try to answer my question first?
Mr. ARKES. Yes, sir, I am answering. I guess I get in trouble in this committee offering that rare thing called an analogy. But it seems to me that your question could be posed in a similar way by asking, What if the Lincoln administration and Edward Bates, in putting forth that document about revising the Dred Scott case, said this administration considers all free blacks born in the United States to be citizens and, therefore, persons under the law? And someone came back and said, But how would that affect all the places in which persons are mentioned in the law? And I think if you it is in principle
Page 62 PREV PAGE TOP OF DOC Mr. WATT. Mr. Arkes, I haveand maybe this is just a personal thing to me. But I get real offended when people try to put everything that I ask into some racial context. I asked you a simple question. If you haven't analyzed the impact on other things, that is fine. That is why I started out by trying to reassure you that this was not a trick question. But what we are talking about today has little, in my opinion, to do with Dred Scott, and so, I mean, just
Mr. ARKES. Fine.
Mr. WATT [continuing]. Because I happen to be black, you don't have to give me a black response today. A simple yes or no answer
Mr. BACHUS. Mr. Chairman?
Mr. WATT [continuing]. To my question would be sufficient.
Mr. BACHUS. Would the gentleman yield? Would the gentleman yield?
Mr. WATT. I am happy to yield to the gentleman.
Mr. BACHUS. Mr. Watt, in fairness to the witness, I wouldn't assume that he is answering that question in that way
Mr. WATT. Mr. Bachus, no
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Mr. BACHUS. I don't know that, but you don't know that. I mean, only he knows that.
Mr. WATT. And I started my response to him by saying this is a personal response, and I am just tryingyou know, if you have done an analysis of what implication this bill has on other laws, then I would like to hear that. If you haven't, then you can just tell me you haven't, and that was the only question I had. I was actually planning to yield the rest of my time to the chairman because I thought he might
Mr. ARKES. Mr. Watt, let me
Mr. WATT [continuing]. Make better use of it.
Mr. ARKES. May I say that I am offended by this attempting to keep blocking off anI am trying to give you a proper answer to the question, because
Mr. WATT. The question is: Have you done any analysis
Mr. ARKES. Yes, Mr. Watt, I have.
Mr. WATT. Okay.
Page 64 PREV PAGE TOP OF DOC Mr. ARKES. And if you don't like the analogy of race, I could simply take the ball rolling down the inclined plane. If somebody says
Mr. WATT. Well, keep going, then.
Mr. ARKES [continuing]. We have the principle by which that ballhave you tried this with the yellow balls, the blue onesif you are clear on the principle, then you are clear that that principle will not be affected even by the numerous instances that arise under the law.
Mr. WATT. Okay. Thank you, Mr. Arkes. I appreciate the clear and concise response to my question. And I am happy to yield the chairman the balance of my time.
Mr. CANADY. And I appreciate that, Mr. Watt.
Let me just say that it is my belief that this bill does not change the principle that is in the law
Mr. ARKES. Right.
Mr. CANADY [continuing]. Of the United States now that has been recognized for a long time and is in the statutes of a large number of States. We basically track what the current law is. We are doing this, however, because we believe that that principle that currently is the law is subject to challenge and is under threat, given other developments in the law. That is why we are here doing what we are today.
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Mr. NADLER. Would the gentleman yield?
Mr. CANADY. The gentleman's time has expired. Without objection, Mr. Watt will have 2 additional minutes.
Mr. WATT. Mr. Chairman, I don't seek additional time.
Mr. CANADY. Okay. The gentleman from Arkansas is recognized for 5 minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman. I want to express my thanks to the witnesses for their testimony today. It is certainly not something that the average citizen sees every day. Many of you are in circumstances, working in hospitals, and are affected by this and impacted by this every day, and I don't see that in my life. And so I am just grateful for you sharing your testimony today. I just have a couple questions.
Ms. Baker, you testified about your time at Christ Hospital, and the cases that you described, the infants who were aborted, did not suffer from fatal deformities? Is that
Ms. BAKER. No.
Mr. HUTCHINSON [continuing]. Correct? So was the induced labor or abortion procedure used more often on fatally deformed infants, non-fatally deformed infants, or healthy infants?
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Ms. BAKER. They were infants withthe ones that I experienced were infants with either Down's syndrome or spina bifida. I never saw cases of things that the baby would not survive life with. They were, you know, Down's or spina bifida, bothor all the cases that I have seen.
Mr. HUTCHINSON. Was that the reason for the abortion?
Ms. BAKER. Yes, that was the reason.
Mr. HUTCHINSON. And you are saying that they could not survive life with those deformities?
Ms. BAKER. Well, they could survive life with those deformities. They were being induced in labor at 20, 22 weeks. So they were too small to actually intubate, and that was the reason. However, there are infants that are beinglike Ms. Stanek said, they are being induced labor and they are saying they are 22 weeks. But when the baby is born, it is a whole lot bigger than a 22-week fetus. And the question for the nurses is: What do we do then? This child could be intubated.
Mr. HUTCHINSON. So your concern is just simply how you as a nurse who is there to preserve life and to provide comfort, how are you to deal under this very difficult circumstance?
Ms. BAKER. Right. Not so muchfor me the question is, of these born babies that are born alive, what is the right there for these babies? What is going to happenshould they be leftis it okay to leave them on a metal table to move and to just suffocate in the means of all they can do? Or is there some other measure we should take as far as comfort?
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Mr. HUTCHINSON. And is there a hospital policy that gives you direction?
Ms. BAKER. At that time that I was there, I believethere was nothing mentioned to me. The nursesI was a new grad, went into the hospital. Some of the nurses said, oh, I just leave the baby in a blanket on a stretcher, I leave the baby in the Soiled Utility Room in a warmer. There was no policy.
Mr. HUTCHINSON. Is there now?
Ms. BAKER. Since I have left, Jill has informed me there is a comfort care that they talk about. They did not have anything like that when I was there.
Mr. HUTCHINSON. Ms. Stanek, did you want to comment on that?
Ms. STANEK. Under public pressureand the Illinois Attorney General's Office looked into their practicethey instituted a policy last October, and it was supposed to take place on January 1st. But it has not been put in any of our policy and procedures books yet, which I have also reported to the attorney general again.
Mr. HUTCHINSON. Thank you.
Finally, Ms. Jessen, I would assume that you went back and looked at the medical records surrounding your birth. Do you know what the reason was for the decision for the abortion?
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Ms. JESSEN. Sir, I have not been told why, her particular reasoning for having her saline abortion.
Mr. HUTCHINSON. There is nothing in the medical records?
Ms. JESSEN. No. I have just been given a copy of my medical records that just say exactly what happened to me, but no reasoning. She was 17, but that is all I know.
Mr. HUTCHINSON. Thank you very much.
I yield back, Mr. Chairman.
Mr. CANADY. Thank you.
The gentleman from New York is recognized, Mr. Nadler?
Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, I confess that I am very confused on this bill. I have read all the material on it. As far as I can tell, it changes the law in no way at all. I think, frankly, it is demeaning to the Congress to pass laws that don't changepass bills that don't change the law in any way. I know that the anti-choice forces have placed great stock in this bill, I think mistakenly. I know that the pro-choice forces are very fearful of this bill. I am not sure that they are not mistaken.
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As I read the lawone of the reasons I came to this hearing today is I am going to ask some witnesses how this would change anything. My understanding today is that any baby that is born, whether it is born after 9 months of pregnancy or it is premature or whatever, if it is in good health, it lives, fine; if it is in desperate shape, it is up to the parents and the doctors to decide whether to take heroic actions, put him on the respirator or whatever, or not, exactly as the law is with respect to next of kin for an old person who is coming to the end of his life. And the question is: Do you prolong his pain and suffering by a few hours before the inevitable, or do you just not do that? And that decision is normally left to the doctors and the next of kin.
I will ask Mr. Arkes, how would this bill change that in any way, if at all?
Mr. ARKES. Well, I think you are partially right, Congressman. This is the gentlestsee, most of the things I think Mr. Hile was complaining about were the current provisions of the law that I think would interpose objections if people withdrew medical care from newborn infants with maladies. You are right. Most of this is taken care of right now.
Mr. NADLER. But what my question is, isn'tmaybe there are problems with the law, and maybe not. But if there are problems with the law, I don't see that this bill changes the law in any way to solve whatever problems there may be.
Page 70 PREV PAGE TOP OF DOC Mr. ARKES. Yes, it changes it, I think, in a gentle way that addresses
Mr. NADLER. How so?
Mr. ARKES. It addresses Ms. Stanek's situation.
Mr. NADLER. How do you think it changes the law?
Mr. ARKES. Well, if you have a situation with a newborn, let's say the one she described, a newborn afflicted with Down's syndrome or spina bifida, we thought this was exactly the kind of case that the legislation in the early 1980's, the Baby Doe legislation, was meant to address, withdrawal of medical are.
Now, would we assume
Mr. NADLER. Wait a minute. What did that legislation say?
Mr. ARKES. That legislation obliges, I recallprohibited the withdrawal of medical care from newborns
Mr. NADLER. Prohibited it?
Mr. ARKES. Yes, yes. Now
Page 71 PREV PAGE TOP OF DOC Mr. NADLER. Given the fact that that is a law on the books, how does this change that?
Mr. ARKES. It deals with the problem that wasthe misunderstanding that was apparently affectingor the clear understanding it was affecting many people here, that if the child had been marked for an abortion, that child was not covered by the laws that would ordinarily be in place to cover newborns.
Mr. NADLER. My reading of the lawand I am not an expert, and I haven't done a lot of research on this. I first heard of this bill a day or two ago, or at least reminded myself of it. I think we heard about it last yearis that whether a child is intended for an abortion or not, if it is born alive under theif it is delivered and it is living, you have the normal laws apply. It is a person. The normal laws apply. And the question of withdrawal of heroic measures or whatever is whatever the law is. That being the case, how does this law change that?
And let me just say one other thing. If, in fact, your answer is going to be what I think you implied a moment ago, that this is simply to eliminate confusion, you don't pass laws to eliminate confusion. I mean, that is why we have courts, that is why we have administrative agencies. The law is what it is. And if the law says one thing and people are confused about it, someone ought to un-confuse them. But if a new law simply reiterates the old lawfirst of all, it is worthless to pass new laws that don't change the law.
How does this change the existing law with respect to that situation?
Page 72 PREV PAGE TOP OF DOC Mr. ARKES. Well, we have in hand this morning an opinion from Mr. Ken Thomas in which he objects to the
Mr. NADLER. Who?
Mr. ARKES. Mr. Ken Thomas, objecting to the bill on the grounds that this could possibly implicate 14th amendment liberty interests on the part of a woman. That is, there are many people out there who do think that the right to abortion articulated in Roe v. Wade alters this situation now. So that if it was a child marked for an abortion, the usual laws that would come into play in regard to the treatment of newborns are now superseded. It is worth making that point explicit.
Mr. NADLER. Excuse me a minute. The question
Mr. CANADY. The gentleman's time has expired.
Mr. NADLER. Could I have 2 additional minutes?
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. NADLER. People may think whatever they like, and they are either right or wrong in what they think.
Mr. ARKES. Right.
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Mr. NADLER. The question iswell, do you think that that is the law at the moment, a child who was intended for an abortion and is alive outside the mother, that thatwell, what is the law under current law with respect to that child, or whatever you want
Mr. ARKES. I think that law is in the state of confusion because the answer tendered by Judge Haynsworth in Floyd v. Anders that that is not a child protected by the law, that argument still remains plausible because it hasn't been explicitly refuted or rejected. And it is open to the legislature. After all, you know, why give this task on to many people in administrative posts when this is a prime moment for the authors of that legislation to make clear their own intent and make explicit even what we thought was lurking there implicit all the while? It is not so clear.
Mr. NADLER. I always thought it was explicit.
Mr. ARKES. I am afraid it is not.
Mr. CANADY. Would the gentleman yield?
Mr. NADLER. Go ahead. Yes.
Mr. CANADY. At the Federal level, this principle which is embodied in this bill has not been codified.
Page 74 PREV PAGE TOP OF DOC Mr. ARKES. Right.
Mr. CANADY. I believe, as the gentleman from New York states, that it is currently the law. But it has been subjected to some questions because of the developments we discussed.
And let me suggest that there is nothing at all unusual about Congress codifying in statute a rule that the courts have developed to prevent erosion of that rule or an abandonment of that rule. That is an appropriate
Mr. NADLER. Well, reclaiming my time
Mr. CANADY [continuing]. And by no means unique thing for the Congress to do.
Mr. NADLER. Well, I am still very confused about this. I am not aware of any erosion of that rule. And I was not aware until today that any judge had ever questionedyou say that Judge Haynsworth did. I don't think that is the law of the land, whatever Judge Haynsworth said.
As I said before, at this pointand I remain open-minded. At this point, I don't see that this bill changes anything. I don't see that it does any harm. I don't see that it does any good. I am not sure why we should be dealing with it at all.
Mr. ARKES. Well, it would certainly address the question that Jill Stanek confronted at Oak Lawn, and that would have a powerful effect just in addressing that kind of case.
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May I say also that I am an old fan of Justice Harlan's original dissent in Plessy, where he showed you we could make the argument against desegregation simply on the basis of the old text of the Constitution. You could argue that we didn't really need the 14th and 15th amendments. I think that is all implicit in the original documentand the 13th amendment. But there was something to be gained
Mr. NADLER. The Supreme Court said that that wasn't so clear.
Mr. ARKES. That is right, there was something to be gained by making all that explicit.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Nadler.
Mr. Hyde is recognized for 5 minutes.
Mr. HYDE. No questions.
Mr. CANADY. Would you mind yielding your time to be?
Mr. HYDE. With pleasure.
Mr. CANADY. All right. I appreciate that, Mr. Hyde.
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Just following up on this discussion between Mr. Nadler and Professor Arkes, which I think is actually very helpful, I think everybody should understand that the principle that we are attempting to put in the statutes of the United States through this bill is a principle that is already in the statutes of many States across the country, including the State of New York.
Now, there was a time when that statute in New York did not exist, but the legislature decided that the legislature would codify the common law rule, which, again, this bill reflects, on this point. And in some ways, we are simply, belatedly, following the lead of the New York Legislature and the legislatures of many States across the country which have put this principle into the statute books.
I think it is importantand this is a fundamental pointthat it is not our intent to change the law which has been recognized for an extended period of time. It is our intent to reaffirm that principle and to shore it up and to protect it from erosion. And on the point of whether that is a necessary enterprise or not, I will have to submit that I think if you look at the statements made by Judge Haynsworth that have been referred to and look at the logic of other judicial decisions, including the recent case involving partial-birth abortion, which I referred to in my opening statement, you have to conclude that there is some threat to this fundamental principle of the law, and so it is a prudent and necessary step for us to take to put it in the statutes of the United States.
Now, do I believe that that will necessarily make the threat to the principle go away? No. I will not tell you that. I think that
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Mr. NADLER. Would the gentleman yield for
Mr. CANADY. I think that there is the possibility that, regardless of what we do legislatively, that principle will continue to be threatened. But we have a legislative responsibility to take this, as Professor Arkes says, modest step to protect that very important principle. And I would be happy to yield to the gentleman from New York.
Mr. NADLER. Thank you.
Let me ask you this: Assume that this bill were law. Assume that we had passed this bill, it were law, and it said what it said. Now you have the situation I think Ms. Stanek referred to before: a baby born that is in terrible shape, medically, et cetera. And the question arises of whether or not to take heroic measures or what to do. And she said there was confusion.
I think that under current law that basically is up to the parents and the doctor to decide whether they should take heroic measures or not.
How would this law change that, if at all?
Mr. CANADY. This law does not do anything to change the standard of care that would be applicable in such circumstances. And it is true that there are difficult cases where people in good faith can have disagreements.
Page 78 PREV PAGE TOP OF DOC Mr. NADLER. So it wouldn't dispel that confusion.
Mr. CANADY. This does not solve all the world's problems. No one contends that it does. Again, it is, again, as Professor Arkes has said, a modest step. But it establishes this principle, because, again, we are finding people that seem to be attacking this principle, who seem to believe that particularly in the case where the child is born alive after an abortion has been performed, there is some sort of right to have a dead baby as a consequence of the abortion, not simply a right to terminate the pregnancy but a right to a dead baby. That isn't an idea that is being articulated, and I think that is a dangerous idea, and that is an idea that we have a responsibility to respond to.
Well, I appreciate the gentleman's question, and, again, I want to thank all the members of this panel for joining us. Your testimony has been very helpful to the subcommittee, and we thank you very much.
Mr. ARKES. Thank you, Mr. Chairman.
Mr. CANADY. We will now move to our second panel, and I would like to ask Representative Jones to come forward and take her seat. We are pleased today to welcome as the witness on our second panel the Honorable Stephanie Tubbs Jones, who represents the 11th District of Ohio. Congresswoman Jones sits on two committeesBanking and Financial Services, and Small Business. Before coming to Congress, Congresswoman Jones served as a county attorney and judge.
Representative Jones, we want to thank you for being with us here this morning. I would ask that you do your best to summarize your testimony in 5 minutes or less, and, without objection, your written statement will be made a part of the permanent hearing record.
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STATEMENT OF HON. STEPHANIE TUBBS JONES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Ms. JONES. Thank you, Mr. Chairman, Congressman Watt, Congressmen Hyde, Scott, Nadler, I thank you for the opportunity to be here this morning to testify with regard to this particular legislation.
I come here to share my concerns about it not only as your colleague but, as you have already said, having served both as a judge and as a Cuyahoga County prosecutor for some 18 years in combination.
My experience required me to step down from an ivory tower of just making law but to actually see the impact that laws that were passed by my State colleagues and Federal colleagues could have in real life. And as a judge, I was required often to interpret the legislation that was passed.
I have written comments, and I also made some briefer comments, but based on the interaction that has happened here already this morning, I thought I would address a couple things out of order.
One of the things that this piece of legislation attempts to do is to apply a single definition of ''born alive'' across every Federal statute in place. And I would reference the committee to the CRS report with regard to legislation, and it says specifically that this woulda computer search of these terms reveals that they appear in over 15,000 sections of the United States Code and over 57,000 sections of the Code of Federal Regulations. Consequently, an evaluation of the statutory and regulatory impact of this act is beyond the resources of our office.
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So it would make clear that, based on the CRS, who does the research for Congress, that it is ill-advised for us to proceed with a piece of legislation such as this if we can't be advised as to the impact of the law.
The other thing that needs to be made clear, in many States they have enacted legislation or definitions, but the definitions enacted in each of the States don't apply in every instance. They have definitions that are enacted for purposes of criminal statutes, definitions that are enacted for purposes of estate taxes or estates orwhat am I looking for, the word?probate issues. And so for us to do something or codify the term or definition of ''born alive'' across every Federal statute without knowing the impact it would have in my mind is ill-advised.
I want to step to the political piece of this, since witnesses prior to me testifying were on that. I am a pro-choice Member of Congress, and really what this does is flame the political fire of those who are either pro-choice or anti-choice by pushing a piece of legislation that has little impact in terms of clearing up the air or expanding our understanding or anyone's understanding of the law.
What it could, in fact, do is cause greater confusion, and we all know, those of us that are legislators, that we should not enact laws that are vague, that do little to assist government in its operation.
And so I wouldas I said, I skipped over much of what I would want to say to you just to respond to some of those particular issues that had already been raised. And I would say to you that, finally, as Congress, we are talking about some concept of born alive. Why aren't we spending the time that we have in Congress today dealing with those children that are alive? I mean, we are sitting here discussing a concept when we can't seem to pass legislation that will assist in the education of children, that would assist in providing prescription drug benefits for senior citizens that deal with Social Security, that deal with so many other issues. And we are caught up spending time talking about born alive, which is clear from CRS we don't know the impact it would have.
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I appreciate the opportunity to be heard, Mr. Chairman, and I thank the other members of the committee for the chance to appear here today.
[The prepared statement of Ms. Jones follows:]
PREPARED STATEMENT OF HON. STEPHANIE TUBBS JONES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Mr. Chairman, Congressman Watt, Subcommittee Members.
Thank you for the opportunity to appear before you today. I ask that my written statement be made part of the hearing record.
I come here today to share my concerns about H.R. 4292, not only as your colleague, but as one who has served as both a judge and a prosecutor prior to joining you as a Member of Congress.
My unique experience required me to step down from the ivory tower of legal abstractions into the real world, where I saw first hand how the laws passed here affect ordinary people in very significant ways. In the courtrooms of Cuyahoga County, Ohio where I both presided and prosecuted, I saw and felt how far-reaching and often unintended consequences of laws impacted people's lives. And I learned a lesson that has proven invaluable to me as a legislator: that we must be sensitive and thoughtful in our approach lest weeven with good intentionsirreparably harm our constituents and the system of laws we are sworn to uphold.
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Based upon these experiences, I am convinced beyond doubt that H.R. 4292 is ill-advised and dangerous. Should it become law, this measure will wreak havoc both on our legal system and the people we are charged with serving. For these reasons, I strenuously urge this body to withhold passage of this measure.
This Bill is riddled with flaws, but I will point out just four problems, any one of which should cause this legislation to fail.
The first problem with this Bill is that it is not even necessary. Existing federal and state law already provides adequate protection for fetuses.
The second and far more serious problem with the bill is that it is obviously a back-door attempt to do what the U.S. Supreme Court has strictly forbidden over and overit unduly restricts a woman's right to choose to terminate a pregnancy. It does this by codifying into law a concept that the Supreme Court has specifically and repeatedly stated cannot be set in stone: this bill blatantly defines viability, a direct contravention of Roe v. Wade and subsequent Supreme Court rulings, the last as recent as three weeks ago. This definition applies to all stages of prenatal development, including pre-viable fetuses, under any federal law, regulation, ruling or interpretation.
This unreasonable expansion of the definition of viability blurs the crucial distinction between pre-viability and post-viability and, as such, directly contradicts the U.S. Supreme Court, which has consistently refused to adopt one theory of life by granting personhood to the fetus and thereby ''override the rights of the pregnant woman that are stake.''
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In addition, the Bill's language is deliberately and fatally vague and over-broad. At first look, the definition of ''born alive'' appears innocuous, having been derived from the Model State Vital Statistics Act and Regulations and used by the Centers for Disease Control and Prevention to guide states in developing reporting requirements for live births and fetal deaths. However, upon closer scrutiny, we can see the insidiousness of this language. This definition of ''born alive'' was never intended to be used by legislators or courts to accord personhood status to fetuses under all applicable federal laws, rules, and regulations.
This attempt to impose one single definition of ''born alive'' in all federal matters, if enacted, would have disastrous consequences. The proposed definition of ''born alive'' would be added to the definition of ''person,'' ''human being,'' ''child,'' and ''individual'' found in more than 70,000 sections of the U.S. Code and Code of Federal Regulations. It is impossible to predict all of the ramifications of the expansion of these provisions to include virtually every fetus.
It is possible, however, to anticipate some troubling outcomes. There is no doubt that the vagueness and broadness of this statuteperhaps intentionallymake it impossible for persons engaging in lawful, constitutionally-protected behavior to assess with certainty whether they are violating this statute. The result will be that physicians and their patients will be discouraged from exercising their constitutional rights for fear of being prosecuted for a federal crime.
For example, federal law defines murder as the ''unlawful killing of a human being with malice aforethought.'' H.R. 4292, as currently crafted, would broaden this provision's protection to pre-viable fetuses. Therefore, a physician at a military hospital who performs an abortion necessary to save a woman's life or to terminate a pregnancy resulting from rape or incest could be prosecuted for murder under federal criminal law if that physician does not take extraordinary and, possibly, medically inappropriate measures to resuscitate the fetus should the fetus' final heartbeat pulse outside the woman's body. There can be no doubt that such exposure to criminal liability would have a chilling effect on physicians' willingness to provide the medical assistance necessary for women to exercise their constitutional right to terminate a pregnancy.
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In addition, enactment of this Bill would have far-reaching jurisprudential impact. For example, given that H.R. 4292 modifies tens of thousands of existing laws in one fell swoop and suggests Congress' intent to define life, it would result in numerous challenges to existing law that would impose a substantial and unnecessary burden on the judicial system.
The fourth problem with this legislation is that it is a disgraceful distraction from what we should be doing as a Congress. It is interesting that many of those who so eagerly claim a desire to protect the rights of ''born alive'' pre-viable fetuses are, on the other hand, so insensitive to the needs of those very much alive children and their families who are begging us to help them in their struggle to better their lives. This Congress has resisted all efforts to reduce class size and increase the number of teachers, bridge the digital divide, stem the proliferation of gun violence, and to increase the minimum wageall measures that will protect and enhance the lives of our very much alive children and their families. Our constituents deserve our full attention to these critical matters. What they don't deserve are further diversions such as this ill-advised and legally untenable legislation.
I urge the subcommittee members to protect our citizens, uphold the rule of law and vote against H.R. 4292.
Mr. CANADY. Thank you, Representative Jones. I will recognize myself for 5 minutes now. I don't ordinarily ask members questions. We hopefully won't have too many questions for you. But I guess I am confused by your opposition to this.
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I understand the point that is made that the law would affect the whole Federal Code, but can you come up with one example of someplace in the Federal Code where this principle would not be appropriate?
Ms. JONES. That was CRS' job, and CRS said that of the 70,000 places where this language was used, they could not tell you the impact that it would have. But, conceptually, we could usein my other testimony, it says, for example, the Federal law defines ''murder'' as the unlawful killing of a human being with malice aforethought. As currently crafted, this would broaden this provision's protection to pre-viable fetuses. Therefore, a physician at a military hospital who performs an abortion
Mr. CANADY. I think
Ms. JONES. You asked
Mr. CANADY. I think that is not correct. Perhapsis your concern that if as a result of an abortion a child is born alive but at a stage when the child is not viable, that this law would prohibit the killing of that child?
Ms. JONES. Now, when you use the term ''born alive,'' are you using the term that you define ''born alive''?
Mr. CANADY. Sure, as defined here. It is moving. It has got a heart beating. There are signs of life, as the statute
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Ms. JONES. What I am saying to you is there is legislation in place across the country to protect a child that is born alive, and we need not enact new legislation to protect a child that is born alive.
Mr. CANADY. I understand your point. But I don't understand how it is responsive to my question. Can you give me one example in the Federal Code where you believe that this principle that is embodied in the bill, which we would put in the Federal Code, would be an inappropriate principle?
Ms. JONES. Well, it could be an inappropriate principle assuming the example I attempted
Mr. CANADY. Give me an example.
Ms. JONES. Wait, wait. Now, you are going to ask me question. Are you going to let me answer?
Mr. CANADY. Well, if you will answer my question.
Ms. JONES. I am answering your question.
Mr. CANADY. An example.
Ms. JONES. But I am not going to answer it like you would like me to answer it.
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Mr. CANADY. You don't have an example.
Ms. JONES. I will answer it the way I
Mr. CANADY. You don't have an example.
Ms. JONES [continuing]. Choose to answer it.
Mr. CANADY. You don't have an example.
Ms. JONES. I am going to finish the example I attempted to give you earlier.
Mr. CANADY. Okay. Please do.
Ms. JONES. Therefore, a physician at a military hospital who performs an abortion necessary to save a woman's life or to terminate a pregnancy resulting from rape or incest could be prosecuted for murder under Federal criminal law if that physician does not take extraordinary or possibly medically inappropriate measures to resuscitate the fetus should the fetus' final heartbeat or pulse outside the woman'shave a final heartbeat or pulse outside the woman's body.
Mr. CANADY. That is not so. That is not what this bill does. It says nothing aboutit does nothing to change the standard of care that would be applicable under all these State statutes or, quite frankly, under the principle that has been articulated by our Federal courts.
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Ms. JONES. Now, you are saying to me that I can't have an opinion. My opinion is that it does. Your opinion is that it does not.
Mr. CANADY. I understand that people have different opinions. Some
Ms. JONES. Okay. So don't say that is not true.
Mr. CANADY. Well, at some point we have to make judgments about which opinions are correct or not correct, and obviously
Ms. JONES. You are not saying yours is more correct than mine, though, are you?
Mr. CANADY. Yes, I am. Yes. And I think
Ms. JONES. And I am saying mine is more correct than yours.
Mr. CANADY. And I think you are asserting that yours is more correct than mine.
Ms. JONES. No, I am not. I am just giving my opinion. I was not trying to say to you that you were wrong. I said I gaveyou asked my opinion, and I gave it to you.
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Mr. CANADY. Well, I would suggest to you that there may be something called the truth.
Ms. JONES. You know what? You can't impugn my integrity, Mr. Chairman.
Mr. CANADY. No, I am not
Ms. JONES. I served as a judge for 10 years, a prosecutor for 8, and I am your colleague. Don't you ever attempt to say to me I am not talking truth.
Mr. CANADY. Oh, Representative Jones
Ms. JONES. Don't ever say I am not talking truth.
Mr. CANADY. Please, please. I
Ms. JONES. Now, you may not agree, but I am telling truth.
Mr. CANADY. No, that was not my suggestion
Ms. JONES. But you said it.
Mr. CANADY. No, I did not. And I think if you will look at
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Ms. JONES. Do you want to read it back for me? I sound like I am the judge in a courtroom now.
Mr. CANADY. Well, you are not here today. That was not my suggestion. But the point is
Ms. JONES. Absolutely it was.
Mr. CANADY [continuing]. That sometimes when there are conflicts between opinions, people have to make a judgment about which one is right or wrong. And I respect your right to say that my opinion is wrong
Ms. JONES. I didn't say you were wrong.
Mr. CANADY. So you are agnostic on the question?
Ms. JONES. No. I did notI said my interI came here to give my testimony with regard to the law.
Mr. CANADY. Okay
Ms. JONES. You are here trying to say that I am not telling truth or that I am incorrect. And I am not.
Page 91 PREV PAGE TOP OF DOC Mr. CANADY. Well, wethere is
Ms. JONES. In my opinion.
Mr. CANADY. Well, I understand your opinion, and I appreciate your offering it, and I respect your right to do that.
But let me say that the principle that we are trying to put in the law here is a principle that is already in the law of your State, which I suspect as a State judge you are aware there is very little differenceI mean, if any differencebetween our definition of ''live birth'' in this bill and what the State of Ohio has said
Ms. JONES. Let me go back to my earlier
Mr. CANADY. I don't see
Ms. JONES [continuing]. Statement.
Mr. CANADY. I just don't understand why this should be controversial.
Ms. JONES. The reason I gave the earlier statement
Mr. CANADY. Without objection, 2 additional minutes to the gentle lady to respond.
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Ms. JONES. Thank you. Fantastic.
In Ohio, there is a definition, but it does not apply across the board. The legislation that you offer today, you propose that it would apply in every instance across every Federal statutes. Is that not what your legislation says?
Mr. CANADY. Well, let me ask you this: Do you believe that it is appropriate for this definition to apply in the criminal law context?
Ms. JONES. It is already in place in the criminal law context
Mr. CANADY. So you believe it is appropriate
Ms. JONES [continuing]. In some instances.
Mr. CANADY. You believe it is appropriate in that context?
Ms. JONES. No, I am not saying it is appropriate.
Mr. CANADY. Okay. Well, I appreciate your being with us here today, and I will recognize any other members who wish to ask you questions.
Mr. HYDE. I would like to ask questions.
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Mr. CANADY. Mr. Hyde is recognized.
Mr. HYDE. Judge, as I look at the Constitution, the word ''person'' is awfully important: ''No person shall be deprived of equal protection of law, nor shall any person be deprived of due process of law.'' So personhood is a pretty important concept.
Now, I am confused as to when a fetus becomes a person, if ever he or she does. From the moment of conception until you die in a nursing home 96 years later, along that continuum you as a judge, a dealer in the law, and a prosecutor, an enforcer of the law, when does that fetus, that fertilized egg, at what period in its journey through life does it become a person?
Ms. JONES. I would refer you to the Supreme Court decision on that. I did not
Mr. HYDE. I want you to tell meI want your opinion.
Ms. JONES. I would refer you, Mr. Hyde, to the Supreme Court decision on that. I was not required to make a decision as a court judge
Mr. HYDE. So you don't know
Ms. JONES. No. As I said to you, Mr. Hyde, I would refer you to the Supreme Court decision.
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Mr. HYDE. I want your opinion, though. What is your opinion?
Ms. JONES. I refer you to the Supreme Court decision.
Mr. HYDE. Well, tell me what the Court decision says. There are so many of them, I haven't committed it to memory.
Ms. JONES. Oh, and neither have I.
Mr. HYDE. What is your
Ms. JONES. And neither have I, Mr. Hyde.
Mr. NADLER. Would the gentleman yield?
Mr. HYDE. Well, I would love to know when personhood attaches, because it is critical
Ms. JONES. I refer you to the Supreme Court decision.
Mr. NADLER. Would the gentleman yield on that point?
Mr. HYDE. Please, I will yield to you in a minute.
Page 95 PREV PAGE TOP OF DOC Ms. JONES. Roe v. Wade.
Mr. HYDE. The vagueness surprises me on such a concept. Personhood ought to attach at some time. Our Declaration of Independence says you have inalienable rights. Let's forget personhood. When do those inalienable rights attach to that little fertilized egg growing into an old man or an old woman? At what point in that continuum does the inalienable rightsor do they ever attach?
Ms. JONES. I refer you to Roe v. Wade, the Supreme Court decision, Mr. Hyde.
Mr. HYDE. Didn't Casey overrule Roe?
Ms. JONES. No, not completely. Roe v. Wade is still good law in this country.
Mr. HYDE. Now, you said we shouldn't pass vague laws. Would you say the phrase ''undue burden'' is terribly specific?
Ms. JONES. It is specific enough for people to understand what it means. And an undue burden, in my mind's eye, is to pass a piece of legislation such as this that has application across the board to 70,000 statutes when CRS doesn't even know what impact it would have.
Mr. HYDE. What is the protection for an unborn child, a fetus? You mentioned there isexisting Federal and State law already provides adequate protection for fetuses. If you can have a born fetus and put it in the closet and let it die, I would like to know what is the protection that
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Ms. JONES. The criminal code that says that you cannot havetake ahave a child that is born, a child born alive, and put it in a closet. You have an obligation to do something with that child if there is criminal intent involved.
But you know what? See, it is very interesting that neither one of you, Mr. Canady or Mr. Hyde, say that you generally would ask questions of your colleagues and you are trying to use me as a pawn to discuss your issues that I think are clearly inappropriate and
Mr. HYDE. No, I am asking
Mr. NADLER. Would the gentleman yield?
Mr. HYDE. I seldom get a chance to cross-examine a judge. You are a judge. [Laughter.]
Ms. JONES. Oh, now you will couch it in that. I will take that.
Mr. CANADY. Would the gentleman yield?
Mr. HYDE. Sure.
Mr. CANADY. I just want to follow up on the principle that was stated about the protection of the child born after an abortion, the protections of the law for
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Ms. JONES. Oh, Iokay, go ahead.
Mr. CANADY. If I understood you, you said that a child that is born alive after an abortion has been performed
Ms. JONES. No, I didn't even use the word ''abortion,'' Mr. Canady. Don't put those words in my mouth.
Mr. CANADY. I am sorry. What did you say? Clarify it for me.
Ms. JONES. He asked me was there a protection for a child that was born in a closet, and I said there is a criminal statute that applies to the conduct of a person if a child is born and he is alive, and someone then causes some harm to him or her.
Mr. CANADY. Let me
Ms. JONES. That is what I said.
Mr. CANADY. Okay. Let mein that circumstance that has been described, does it make any difference whether the child is at a stage of development that some would consider to be pre-viable? The child is living, but the judgment is made that the child cannot survive long term. Does that make any difference to that answer?
Ms. JONES. Let me say this to you: That is not enough information upon which I could make a determination as to whether or not it is prosecutable.
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Mr. HYDE. Mr. Nadler, I yield to you, but I don't have any time.
Mr. CANADY. The gentleman from New York is recognized.
Mr. NADLER. I want to make a couple comments. I wasn't going to ask Representative Jones any questions. I was going to make some comments, but now I will append themI will first make comments on some of Mr. Hyde's comments. I believe the law is fairly clear at this point. The right of personhood under the Constitution attaches when a child is born. The child has no constitutional rights before that point.
Mr. HYDE. Ten minutes before birth it has no constitutional rights?
Mr. NADLER. I think as a matter of law
Mr. HYDE. You can do the old sword prick right in the abdomen and
Mr. NADLER. Excuse me. Let me finish, please. I think as a matter of law that is correct. It has no constitutional rights in that way. The Supreme Court has ruled that the States have a right to regulate abortion depending on, you know, the time scale, and the States certainly have the right in the last trimester to put limits on abortions and so forth. And some have and so forth. But I don't think that that is a constitutional right of the child as the courts have defined it. I think it is the right of the States to legislate and to recognize that the State may have interest in that child, if it is 9 months pregnant or 8 months or whatever, that it wishes to balance against the rights of the mother, and that is the legal framework that the Supreme Court has articulated in Roe and in Casey, although they balance it somewhat differently in those two cases.
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But I think that as a matter of law, the constitutional right of a person in the 14th amendment and other protections attach at birth.
Let me say, secondand I think that is a correct statement of law. Secondly, I thinkand, again, I am not clear that this bill does anything one way or the other. But I think that it is clear and the laws of every State in the Federal Union, if an abortion were performed or a natural birth occurred at any age, at 3 months, and the product of that were living outside the motherliving outside the motherwhether as a result of a natural occurrence or an abortion, but if the product of that were living outside the mother and somebody came and shot it, I don't think there is any doubt that person would be prosecuted for murder under the laws of every State of the Union as presently constituted.
So, again, I am not sure that this bill does anything at all. It doesn't seem tothe questions that exist insofar as any questions exist are questions of what the obligations are for a child born in medical extremis, whether because of being very early in the pregnancy or for some other reason, and there may be confusion on that now, and this law doesn't dispel that confusion.
I want to say one other thing, and that is a political thing. I don't have any doubtand I am as pro-choice as anybody on this Earth, as I think most of the people here know.
Mr. HYDE. We will stipulate to that.
Page 100 PREV PAGE TOP OF DOC Mr. NADLER. Thank you. I don't think there is much doubt, at least there isn't in my mind, that the intent of this bill is not to dispel some confusion. The intent of this bill is in various ways to try to undermine the constitutional protections of abortion.
I don't think it does thatI shouldn't say I don't think so. I haven't yet seen how it does that in any way, and I am not sure that as a political matter it makes much sense for the pro-choice movement to say that this undermines the rationale or the constitutional rationale for abortion if, in fact, it doesn't. And so far I don't see how it affects that in any way?
Mr. HYDE. Would the gentleman yield?
Mr. NADLER. Yes.
Mr. HYDE. Just very briefly. I respectfully disagree with my friend. Roe v. Wade did not say when a person becomes a person. As a matter of fact, the Court wouldn't even say when human life begins. They punted on that question.
Mr. NADLER. Reclaiming my time, that may be, but the fact is that it has always been, I think, clear that, as a practical matter, we consider that constitutional rights begin at birth. And I would simply point out that under the criminal laws, I think, of all the Statesand maybe this has changed recently because of the abortion controversy. I am not sure. But the traditional law in some StatesI am not an expert in every State. But the traditional law has always been that if you killif you shoot a woman and she dies, you are guilty of murder. If you injure a woman intentionally and her fetus dies, you are guilty of a tort, but you are not guilty of murder. And that says to me that the law does not recognize the fetus at that point, and it doesn't seem to make any difference at what stage of pregnancy it is. But that tells you that you committed a tort against the woman by killing her fetus, but you haven't committed murder, which means that that fetus is not considered for that purpose
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Mr. HYDE. How about guardian ad litem in probate for an unborn child?
Mr. NADLER. I am not familiar with that area of law. I don't know. Do we have them? I don't think we ought to have them, but
Mr. HYDE. I will explain it to you.
Mr. NADLER. But my point is that that shows that obviously if we consider that fetus to have the right of personhood under the 14th amendment, the laws would be very different. You wouldn't consider that a tort. You would consider that murder. And that has always been the case. And I understand that you, sir, and other anti-choice people would like to change that, but it would be a change. I would oppose that. But it would be a change. It is not the current legal concept.
Mr. CANADY. The
Ms. JONES. I would also, Mr. Canady, like to refer you to
Mr. CANADY. The gentleman's time has expired. Without
Ms. JONES. In answer to your own question, refer you to
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Mr. CANADY. The gentleman from New York, without objection, the gentleman will have 2 additional minutes.
Ms. JONES. All I want to do is refer you to your memoI don't want to testify any furtheron the third page, top, as to what you think this legislation will do, and it will expand, based on what you think it will do, the rights of a pre-viable fetus. That is far and away against what Roe v. Wade said in itsthe Supreme Court said in Roe v. Wade.
Mr. CANADY. It is the time of the gentleman from New York.
Mr. NADLER. Thank you. I am glad it hasn't expired. I want to make one further comment.
I think that there is some misinterpretation in this room about what the bill does. The bill's rights, whatever they may be accorded by the bill, attach once the fetus or the baby, or whatever you want to call it at that point, is outside the woman and still alive at any stage of development, meaning at any stage of pregnancy. So I don't think this bill has any comment on the viability or stages of pregnancy or anything else other than to say that once the baby is born, it is a person.
And I would point out to Mr. Hyde that, with respect to the question that we were addressing a moment ago, when personhood attaches, the clear implication of this bill, if it has any implication at all, is that personhood attaches once a baby is born. It says the baby is a person once outside of the mother, which is what we normally mean by born. And then it says the baby ispersonhood attaches at that point.
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So one might even say that the implication of this bill would be against those people who wanted to say that the fetus at some point is a person under the
Mr. HYDE. Would the gentleman yield?
Mr. NADLER. Let me just finish. One might even say that the implication of this bill is against those who would want to say that personhood attaches at some point prior to birth. Yes, I will yield.
Mr. HYDE. Would you say that if a woman wanted an abortion, went in to get one, and had an abortion but it failed in the sense that the baby was delivered alive, that that baby is now a person and entitled to be protected in life?
Mr. NADLER. That has always been my understanding.
Mr. HYDE. Good. Thank you.
Mr. CANADY. Thank you.
The gentleman from Alabama is recognized.
Mr. BACHUS. I would just ask my colleague, all of us keep referring, I think, to the Supreme Court decision. Could we agree, though, that when life begins, the Supreme Court really doesn't determine that?
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Ms. JONES. So the questionwhat is your question? Can we agree when life begins? Is that what you said?
Mr. BACHUS. Do you agree that the Supreme Court really doesn't determine those things?
Ms. JONES. I will agree that the Supreme Court makes a determination that a woman has the right to have an abortion within a certain period of time and it is her decision.
Mr. BACHUS. Right, I understand. But as to when life begins
Ms. JONES. Yes.
Mr. BACHUS. The Supreme Court doesn't
Ms. JONES. Yes.
Mr. BACHUS. Doesn't make those decisions.
Ms. JONES. But what it does is it doesthe Supreme Court has made it clear when a person has the right
Page 105 PREV PAGE TOP OF DOC Mr. BACHUS. No, I understand
Ms. JONES. When a person is a person for purposes of exercising rights guaranteed to us by the Constitution.
Mr. BACHUS. I understand that. But, I mean, I think we can admit, though, on a more basic thing that when life begins, when a personwe have talked about human beings, we talked about babies as opposed to fetuses. I mean, that is something that the Supreme Court doesn't determine.
Ms. JONES. The Supreme Court interprets the laws of our land, and the Supreme Court makes a determination as to when a person has the right to the guarantees of the Constitution. So, in essence, the Supreme Court could determine when life begins.
Mr. BACHUS. Okay. Do you
Ms. JONES. For purposes of the law, but not
Mr. BACHUS. I understand that.
Ms. JONES [continuing]. For purposes of the rhetorical discussion that we may be having here, or religious or moral.
Mr. BACHUS. I am just saying realistically the Supreme Court doesn't determine when life begins. We agree with
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Ms. JONES. Okay. Assume I agree with that. What is your next question?
Mr. BACHUS. Well, no, that was my only question.
Ms. JONES. Okay.
Mr. BACHUS. Because in this discussion, it seems like sometimes weand I am not saying that you do, but to justify things, we actually seem to imply somehow that the Supreme Court can make a decision on when life begins. And I don't think
Ms. JONES. Well, for purposes of some statutes, the Supreme Court can make that determination. That is the whole issue we are here about.
Mr. BACHUS. I understand. I would like to, without objection, ask Ms. Stanek a question.
Ms. JONES. Can I leave ifI have another committee hearing if you are done with me. Mr. Chairman?
Mr. CANADY. Let me, before the gentleman makes his request, Representative Jones, we thank you for being here.
Ms. JONES. I am glad to be here, and it was a great, wonderful time.
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And I will come back again. Count on me.
Mr. CANADY. In this subcommittee we always have a wonderful time.
Ms. JONES. So I hear. I hear you have entertainment sometimes, also.
Mr. HYDE. We learned a lot.
Mr. CANADY. We are grateful for your taking the time. We appreciate your interest in this issue, and your testimony has helped illuminate the issues involved in this legislation. Thank you very much.
Ms. JONES. Maybe, or maybe not. But thank you very much.
Mr. CANADY. Thank you.
The gentleman from Alabama has a unanimous consent request.
Mr. BACHUS. That I be allowed to ask Ms. Stanek a question.
Mr. WATT. Reserving the right to object, Mr. Chairman. Is there some time frame that we are operating in here?
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Mr. BACHUS. What happened, I was called out
Mr. WATT. Oh, you want 5 minutes?
Mr. BACHUS. Yes.
Mr. WATT. Oh, okay.
Mr. CANADY. Without objection, the gentleman will be allowed to ask his question.
Mr. BACHUS. Ms. Stanek, you testified about a living aborted baby that was left to die on the counter of a Soiled Utility Room?
Ms. STANEK. Right.
Mr. BACHUS. And it was wrapped in a disposable towel?
Ms. STANEK. Right.
Mr. BACHUS. And the baby was accidentally thrown into the garbage?
Ms. STANEK. Right.
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Mr. BACHUS. And was found when she fell out on the floor?
Ms. STANEK. Yeah.
Mr. BACHUS. You testified about how you took a living aborted baby from one of your fellow nurses, a baby that you said was 22 weeks and had Down's syndrome, and that you held him until he died.
Ms. STANEK. Yes.
Mr. BACHUS. So he would not have to die in the Soiled Utility
Ms. STANEK. Right.
Mr. BACHUS. Was a birth certificate issued?
Ms. STANEK. Yes. Birth and death certificates are issued for live aborted babies.
Mr. BACHUS. A birth certificate on both these babies was issued.
Ms. STANEK. Yes.
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Mr. BACHUS. How about a death certificate?
Ms. STANEK. Yes. It is law.
Mr. BACHUS. So a birth certificatethis was the State of Illinois recognized that there was athat this child was born.
Ms. STANEK. Right, and died.
Mr. BACHUS. That these childyou have testified about some living up to 8 hours?
Ms. STANEK. Right.
Mr. BACHUS. The State recognized their birth, recognized that they died?
Ms. STANEK. Right.
Mr. BACHUS. As human beings?
Ms. STANEK. Yes.
Mr. BACHUS. Was medical care extended to them?
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Ms. STANEK. No.
Mr. BACHUS. Was any attempt made to transfer them to a neonatal ward?
Ms. STANEK. No. That is what is at issue here, I think, that these babies were determined pre-birth not to have rights to live after birth, but were not assessed after birth.
Mr. BACHUS. I was a medic in the Army. I have very limited training, but I did visit a ward for a 1-week period, and they used the term then that the baby is thriving.
Ms. STANEK. Right, viable, non-viable.
Mr. BACHUS. Right. I think the term means that it was, you know, breathing on its own, could live on its own. Were these babiesdid any of them show signs of thriving?
Ms. STANEK. Yes. The one that I was talking about this spring, the 23-weeker healthy baby that the mother decided to abort rather than deliver, that baby showed signs of thriving by Apgar scores that improved; between the 1- and 5-minute Apgar scores they improved. The baby began to spontaneously breathe on her own.
Page 112 PREV PAGE TOP OF DOC Mr. BACHUS. Obviously
Ms. STANEK. So in the short term, yes.
Mr. BACHUS. A little boy or girl?
Ms. STANEK. Girls. And girls have a higher incidence of thriving, premature deliveries also, so she had that going for her.
Mr. BACHUS. Was any attempt made to assist her?
Ms. STANEK. No. No, she was wrapped in a blanket
Mr. BACHUS. A birth certificate was issued, a death certificate was issued.
Ms. STANEK. Yes, yes.
Mr. BACHUS. But no assistance was given her in her attempt to live.
Ms. STANEK. No. If the baby had been wanted by the mother when it was time for delivery, the neonatologist would have been called. The pediatric resident, a neonatal nurse, and a respiratory therapist would have all been present for the delivery to take care of that baby and then take the baby over to NICU.
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But this baby was not wanted. It was aborted.
Mr. BACHUS. What did the death certificate read?
Ms. STANEK. I did not read it. I just know that it is law that they are issued birth and death certificates.
Mr. BACHUS. I have no further questions.
Ms. STANEK. Thank you.
Mr. CANADY. Thank you, Representative Bachus.
We will now move to our next panelI am sorry. Were there other people that wished to ask questions? Okay.
We will now go to the third and final panel for today's hearing, and I would like to ask the members of that panel to come forward and take your seats. And I will proceed with the introduction of the witnesses on this panel.
The first witness on this panel will be Kenneth R. Thomas, a legislative attorney at the American Law Division of the Congressional Research Service at the Library of Congress. Before joining the American Law Division, Mr. Thomas was a professional lecturer in law at the National Law Center of Georgetown University, and also served as a trial attorney in the U.S. Department of Education's Office of Civil Rights. Mr. Thomas is accompanied by Jon ShimabukuroI am sorry, I mispronounced your namewho is also a legislative attorney with the Congressional Research Service.
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The second witness on this panel will be Professor Gerard Bradley, a professor at Notre Dame Law School. Professor Bradley teaches courses in legal philosophy, constitutional theory, first amendment, trial advocacy and legal ethics. Before joining the faculty of Notre Dame, Professor taught at the University of Illinois College of Law, and served as an assistant district attorney in the trial division of New York County. Professor Bradley has written extensively on constitutional law and legal philosophy.
Next we will hear from Dr. F. Sessions Cole, M.D. Dr. Cole is the Park J. White Professor of Pediatrics and Cell Biology and Physiology at the Washington University School of Medicine in St. Louis, Missouri. Dr. Cole also serves as a vice chairman of the Department of Pediatrics and the Director of the Newborn Medicine Division. He received his BA in 1969 from Amherst, and his M.D. in 1973 from Yale University School of Medicine. Dr. Cole has held a number of academic and research positions at Washington University and Harvard Medical School, and has published numerous articles in medical journals.
Following Dr. Cole will be Dr. Watson A. Bowes, Jr., M.D., Professor Emeritus at University of North Carolina at Chapel Hill School of Medicine, where he also served as a full professor in the Department of Obstetrics and Gynecology from 1982 to 1999. Before joining the faculty at North Carolina, Dr. Bowes was a member of the full-time faculty in the Department of Obstetrics and Gynecology at the University of Colorado for 14 years. Dr. Bowes' major professional interests include high-risk obstetrics, pre-term birth, and all aspects of labor and delivery. From 1995 to 1999 he served on the Committee on Ethics of the American College of Obstetricians and Gynecologists, and was for the last 2 years of that time, chairman of the committee. Dr. Bowes received his medical degree from the University of Colorado in 1955.
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Our last witness on this panel and for this hearing today will be Professor Robert P. George, McCormick Professor of Jurisprudence at Princeton University. Professor George teaches and writes in the areas of philosophy of law, civil rights and liberties, and American constitutional law and theory. Professor George graduated from Swarthmore College and Harvard Law School. He also holds a doctorate in legal philosophy from Oxford University. Professor George is the author of numerous books and articles on political and legal philosophy, including his most recent book, ''In Defense of Natural Law'' published by Oxford University Press in 1999. Professor George recently completed a 6-year term as a presidential appointee to the United States Commission on Civil Rights. He has also been listed on the Templeton's Foundation's Honor Roll of Outstanding Professors.
And I want to thank all of you for being with us here this morning, my script saysbut it is actually this afternoonand I would ask that each of you do your best to summarize your testimony in 5 minutes or less, and without objection, your written statements will be made a part of the permanent record of the hearing.
STATEMENT OF KENNETH THOMAS, LEGISLATIVE ATTORNEY, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS
Mr. THOMAS. Mr. Chairman and members of the subcommittee, good morning. My name is Ken Thomas, and I am here with Jon Shimabukuro. We are attorneys with the American Law Division of the Congressional Research Service, and we are here today to discuss the statutory implications of H.R. 4292, the Born-Alive Infants Protection Act of 2000.
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As you know, the Congressional Research Service is statutorily required to be non-partisan and objective, and CRS takes no position for or against the passage of the bill being discussed here today.
I will be delivering our statement today, but both Mr. Shimabukuro and I have worked on this issue together and we will both be available for questions.
H.R. 4292 would amend all Federal laws and regulations which use the term ''person,'' ''human being,'' ''child'' or ''individual.'' H.R. 4292 would define these terms to include ''every infant member of the species homo sapiens, who is born alive at any stage of development'' as evidenced by ''beating heart, pulsation of the umbilical cord or definite movement of voluntary muscles.'' This definition would apply when there is complete expulsion or extraction of an infant from a mother as a result of natural or induced labor, as a result of a caesarian section, or as a result of an induced labor.
Our office was asked to provide you information on the impact that this definitional change would have. As has been discussed, 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, we limited our evaluation to the areas of law we thought most likely to be affected. In our written statement we addressed three major areas of law: tort law, trust and estate law, and criminal law. We do not anticipate that the act will have significant impact on Federal tort law or on estate law, so for purposes of today's testimony, we will limit our discussion to the area of criminal law.
Page 117 PREV PAGE TOP OF DOC In criminal law the issue of whether a person is born alive most often arises in determining whether charges of homicide or manslaughter can be brought for fetal damage inflicted in utero. If a harmed fetus does not survive until birth, common law homicide statutes generally do not apply. This born-alive requirement was generally seen as a remnant of a rule of medical jurisprudence, which was developed from the 16th through the 19th century. This rule was developed because of evidentiary difficulty in establishing how and why a fetus has died. Thus, under those laws where a born-alive standard still applies, the precise definition of that standard might make a difference in some small number of cases.
I would like to turn now though to specific Federal statutes which would be covered by this. The principal Federal statutes against homicide are 18 U.S.C. §1111 and 1112, which prohibit murder and manslaughter respectively in the special maritime and territorial jurisdiction. The proposed act would affect these sections, as both of these sections use one of the terms in the proposed act, ''human being.'' Now, the jurisdiction where these laws, §1111 and 1112, apply is not very large. These laws only apply in the special maritime and territorial jurisdiction of the United States, which includes places with a strong Federal interest, such as the high seas, the waters of the United States, certain vessels and on certain aircraft. Now, one significant area found in this jurisdiction are lands where the United States has direct legislative jurisdiction, such as Indian lands, some national parks and some military bases. But outside of this jurisdiction, murder or manslaughter are generally prosecuted under state law.
Now, the question we were asked to examine is how the proposed act would affect existing law. Well, the common law born-alive rule appears to apply to Federal murder and manslaughter statutes already. The 9th Circuit, in the case of United States v. Spencer, held that the born-alive rule applies in the special maritime and territorial jurisdiction.
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So the next question to ask is whether the proposed act would vary the common-law definition of being born alive. Now, the answer to this question depends on how the proposed act is interpreted. The most significant difference, we would note, between the common law and the proposed act is that common-law homicide did not generally apply to abortions, but the definition in the proposed act specifically does. So the situation where it would appear that a difference might occur would be when an infant is expelled or extracted during an abortion and shows some of the vital signs indicated in the bill. One possible interpretation of this proposed language is that homicide statutes would only apply to actions occurring after an abortion, such as the failure to take due care of an infant showing vital signs as described in the act.
So the question would arise as whether this would be a change from existing law. We could find no reported cases dealing with the application of the murder or manslaughter statutes in the case of an abortion where an infant was extracted or expelled and showed vital signs, but we would note that there are some state laws that require due care in these circumstances. So it is difficult to say whether there are any instances where the existing Federal murder or manslaughter laws would apply. I would note, however, that ''failure to treat'' cases are not generally analyzed under homicide statutes, but are treated under essentially case law regarding medical treatment. So under this interpretation, it is not clear if the proposed act would represent any significant change from existing law.
There is, however, another possible interpretation of this language. Another possible interpretation is that the murder or manslaughter provisions would apply to abortions which resulted in the expulsion or extractions of an infant showing the vital signs described in this bill. This interpretation would be consistent with the common law as it exists in non-abortion cases, where damage which is inflicted in utero is the basis for the murder or manslaughter charges afterwards. However, we feel that this interpretation would raise constitutional issues based on a woman's liberty interests under the 14th amendment. Courts generally resolve statutory ambiguities to avoid constitutional question. That rule of construction would make this interpretation less likely.
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Both Jon and I would be glad to answer any questions that you have on the statutory impact of this bill. Thank you.
[The prepared statement of Mr. Thomas follows:]
PREPARED STATEMENT OF KENNETH THOMAS, LEGISLATIVE ATTORNEY, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS
Good Morning. My name is Ken Thomas, and I am here with Jon Shimabukuro. We are attorneys with the American Law Division of the Congressional Research Service, and we are here to discuss H.R. 4292, the ''Born-Alive Infants Protection Act of 2000.'' Specifically, we have been asked by the subcommittee to describe the statutory impact of this bill if it becomes law.
H.R. 4292, the Born-Alive Infants Protection Act of 2000, would amend the United States Code to clarify the definition of the words ''person,'' ''human being,'' ''child,'' and ''individual'' as they are used in any act of Congress or any administrative ruling, regulation, or interpretation. This memorandum responds to your request for information on the impact the Act would have on the Code. Time constraints have prevented us from conducting a complete analysis of the use of the identified words either in the Cde or in relevant administrative rulings, regulations, or interpretations.(see footnote 10) However, after a cursory review of the Code, it appears that the addition of this new language would have minimal effect on the prospective application of federal statutes.
Page 120 PREV PAGE TOP OF DOC Under the Act, the words ''person,'' ''human being,'' ''child,'' and ''individual'' are defined to include ''every infant member of the species homo sapiens who is born alive at any stage of development'' as evidenced by a ''beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. . . .''(see footnote 11) The interests of those who are ''born alive'' are recognized most commonly in the areas of tort law, trusts and estates law, and criminal law.
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.
As used in this section, the term 'born alive', with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
State tort claims brought on behalf of those who are ''born alive,'' but later die as a result of injuries sustained during pregnancy, are common. For example, the estate of a dead infant who was ''born alive'' may generally bring a state claim for wrongful death against a mother's tortfeasor.(see footnote 12) However, federal tort claims are principally brought under the Federal Tort Claims Act (''FTCA''), which authorizes tort suits to be brought against the United States.(see footnote 13) As drafted, the proposed Act does not affect the operation of the FTCA, as the relevant portions of that Act do not use the terms ''person,'' ''human being,'' ''child,'' and ''individual'' in establishing damage claims.(see footnote 14) Further, the FTCA allows such suits only ''if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.''(see footnote 15) Because the law to be applied in a claim involving the FTCA is really state law, changing these federal definitions would have little effect on the administration of the claim. Thus, if a state has not established a similar definition for the words ''person,'' ''human being,'' ''child,'' and ''individual,'' those contemplated by H.R. 4292's new definition would appear to remain with little recourse.
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In trusts and estates law, those who are ''born alive'' at the time of a decedent's death may become beneficiaries of a trust or may obtain an interest in real and personal property. However, because state law and the will or trust instrument determine whether those ''born alive'' may be deemed a beneficiary of a trust or estate, the addition of H.R. 4292's new definitions with respect to federal law would probably have little impact on these determinations.(see footnote 16)
In criminal law, the issue of whether a person is ''born alive'' most often arises in determining whether charges of homicide or manslaughter can be brought for fetal damage inflicted in utero. If the harmed fetus does not survive until birth, most state courts have found that common law homicide or statutes based on them do not apply.(see footnote 17) The ''born alive'' requirement is generally seen as a 16th century rule of medical jurisprudence related to the evidentiary difficulties in establishing fetal demise.(see footnote 18) While the standard is still used in most states which use a common law definition of homicide, some states have acted to eliminate the ''live birth'' requirement statutorily.(see footnote 19) Thus, the particular definition of ''born alive'' might in some cases determine whether or not a criminal charge can be brought for harm caused in utero.(see footnote 20)
It is not clear, however, that the proposed Act would significantly impact federal criminal law. For instance, the principal federal statutes which would appear to be affected by this language would be the relatively narrow prohibitions against murder and manslaughter in the special maritime and territorial jurisdiction of the United States.(see footnote 21) Currently, infliction of injuries on a fetus, who was born alive but died as result of those injuries, would constitute homicide under these provisions.(see footnote 22) A review of relevant case law, however, would appear to indicate that the definition of ''born alive'' as it relates to these statutes has not been the subject of reported federal litigation.
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It does seem likely, however, that the ''born alive'' requirement for the federal homicide statutes would be interpreted consistent with prevailing interpretations of common law. Thus, the phrase ''born alive'' would apply to a child with an ''independent life of its own for some period, even momentarily, after birth, as evidenced by respiration or other indications of life, such as beating of heart and pulsation of arteries or heart tones in response to artificial respiration, or pulsation of umbilical cord after being severed.''(see footnote 23) The proposed Act, on the other hand, provides that ''born alive'' would mean a child that ''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.'' These definitions seem to be substantially similar, although there do appear to be some differences.
For instance, the proposed Act extends its definition to ''every infant member of the species homo sapiens who is born alive at any stage of development.'' Thus, the concept of born alive would appear to be intended to apply to fetuses expelled prior to viability. This definition is broader than the common law definition, which applied to women ''quick'' with child (between the 16th and 18th week of pregnancy).(see footnote 24) It would appear, however, that states vary as to whether or not their definitions of a ''live birth'' are limited to viable fetuses.(see footnote 25)
Further, the proposed Act's definition applies where fetal expulsion is the result of natural or induced labor, cesarean section, or induced abortion. It would appear that this is also broader than the common law definition, which generally applied to non-consensual fetal demise, and not abortion.(see footnote 26) Consequently, it is not clear if the statute would be limited to the situation where the cause of death was inflicted after the fetal expulsion, or whether it could be interpreted to cover injury inflicted in utero during an abortion. Application of the homicide statutes for damage incurred during an abortion would raise constitutional issues based on a woman's liberty interests under the 14th Amendment. While the canon of constitutional doubt would lean against the application of a statutory ambiguity in a way that may violate the Constitution, it is not clear how this statute would be applied.
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Mr. CANADY. Thank you, Mr. Thomas.
STATEMENT OF GERARD V. BRADLEY, PROFESSOR OF LAW, NOTRE DAME LAW SCHOOL
Mr. BRADLEY. Thank you, Mr. Chairman. I thank the entire committee for the opportunity to place my written testimony in the record. Thank you all again for the opportunity to put my testimony in the record, but unless there is a vehement objection from the committee, I would like to skip summarizing my testimony, and just take a couple or 3 minutes to address two points that have been made in opposition to the bill by other witnesses today.
The first point. The act, it is true, ignores, doesn't follow, doesn't track, the distinction made in abortion jurisprudence between the viable and pre-viable unborn. But given what the act is trying to do, rightly so does it ignore this distinction. Now, in its most literal sense, ''viable'', ''pre-viable'' refer to stages of development of the unborn child, that is true. But in abortion jurisprudence ''viability'', ''pre-viability'' are always used to refer to stages of pregnancy, and at least before the Casey opinion there were various rights and opportunities attached to the various stages of pregnancy, defined by ''viability.''
But this bill is not about pregnant women; it is about protecting people born after a pregnancy has been terminated. The bill is about protecting the rights of children after termination of pregnancy by birth. No woman's right to terminate a pregnancy is affected by this bill. I don't think the bill in this light is an idle one or makes no difference. I would say at least, as the chairman said earlier, the bill codifies or affirms what Roe and all the cases have been saying, that abortion refers to terminating a pregnancy and has really nothing to do with terminating children.
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The second point is one that was made at least in the written testimony of Mr. Thomas. I think he raises, in this particular part of his testimony, one of several good questions, but here is the good question I wish to respond to. Towards the end of his written remarks, he raises a question about the situation where the cause of death was inflicted prior to the induced abortionwhere the injuries were inflicted upon the unborn prior to an abortion or during an abortion. Then, the child is born, and subsequently dies. Could an abortion provider be held liable for homicide of some sort for injuries inflicted in utero? I think it is a good question. I do think there is a clear answer in the law, and here it is. I think the answer is not. While in the real world, one might say the natural world, abortion takes us into a situation which has great continuity of events, of intentions, and of status. In the real world, whether the unborn are persons from the moment of conception to the end of their lives is the question. The intentions of people involved in abortions are the same throughout that process, it is to terminate a pregnancy, and perhaps indeed to deliver a dead child.
But in the law there is an abrupt and large change in status and in the legal situation at the moment of birth. I think the moment of birth, according to this act, establishes the personhood of the now newly-born child. There is an abrupt change, but in the law that is the change that is made by Roe and other cases and by this act. What that means in terms of applying a homicide law, I think is this: the abortionist takes the new baby as he or she finds him. With regard to the demise of a child born after induced abortion, you would say that the abortionist takes the victim as he or she finds it at the moment of birth. If the child comes into the world with injuries inflicted by the abortionist during the course of the abortion, so be it. Effectively speaking, a doctor is legally immune for those injuries. At the time of birth and thereafter, the doctor and all concerned have the normal, legal duties of care that they would have for any other infant.
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You might think of it this wayand my final point here is an illustration. You might think of finding or taking the victim as one finds him in this way. Imagine that a normal walking-around person is injured in an auto accident or perhaps in a shooting. He finds him at the door, at midnight, of his doctor, knocks on the door, steps through the portal and says to the doctor, ''Doctor, I have been injured. Please help me.'' That doctor has no idea, perhaps, where those injuries came from, but once that person accepts any kind of legal responsibility, either through choice or through circumstances imposed upon the doctor, that doctor has to deal with those injuries, however inflicted, and take the appropriate medical steps.
I hope that illustration helps clarify this important question.
[The prepared statement of Mr. Bradley follows:]
PREPARED STATEMENT OF GERARD V. BRADLEY, PROFESSOR OF LAW, NOTRE DAME LAW SCHOOL
In these remarks I address potential constitutional issues raised by the Born-Alive Infants Protections Act of 2000, especially with regard to the abortion liberty pronounced in Roe v. Wade, and affirmed in Casey v Planned Parenthood and Stenberg v. Carhart.
The first question about the constitutionality of this Act is the same as that about any act of Congress: is there an enumerated power which authorizes Congress to enact the bill into law?
Page 126 PREV PAGE TOP OF DOC H.R. 4292 is exclusively a definitional provision, identical in structure and function to the immediately preceding provision of the United States Code. Chapter 1, §7 of Title One 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.'' Today's Act defines the words ''person'', ''human being'', ''child'', and ''individual'' for identical purposes.
Today's is an easy call. This Act, so far considered (and like §7), does not articulate any substantive rule of law, and thus does not call for an as-yet-unarticulated constitutional basis for lawmaking. The question about an enumerated power is elsewhere, in the particular act of Congress or administrative ruling in which the word ''person'', ''child'', and so forth, appears. If the law, elsewhere in the U.S. Code or (Federal Register) using the word ''person'', rests upon a proper enumerated basis, then no additional question about enumerated power is raised by Congress's clarification of what that term means. 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'', that power necessarily implies the authority to provide a definition of ''persons'', ''children'', ''human beings''.
After all, what is the alternative? There is no possibility whatsoever that these terms could go undefined or, practically the same thing, be defined according to the notions of whomever is affected by the relevant law. Tax breaks for taxpayers who choose to count pets as ''children'' won't do, nor will tolerance for heads of households who wish to include houseplants in the census.
Page 127 PREV PAGE TOP OF DOC No. Someone in authority has to define these terms. In the absence of this Act, that defining authority might be a field agent or a bureaucrat or a prosecutor or even, in some cases, a jury. But there is simply no way at all to apply a rule affecting ''persons'', for example, without adopting or presupposing some definition of ''person''. By this Act, Congress eliminates the guesswork, and the unfairness, of depending upon so many disparate defining officials. By this Act Congress settles the rights and duties of affected parties by codifying, once and for all, the meaning of these important terms.
I do not suggest that Congress possess unreviewable authority to define ''person'', or ''marriage'' for that matter. I recognize that judicial review is appropriate. But the initial matter of identifying an affirmative grant of authority is not problematical, because that question is transparent for the question of authority to enact that other law, in which the defined term appears. The real question is whether anything in the Constitution, as interpreted by the Supreme Court, casts doubt upon the validity of this Act's definition of ''person'', ''child'', and so forth, as a born-alive human being?
I turn to the more intricate matter of the abortion liberty, first articulated in Roe, and the constitutionality of this Act.
Someone might object that the Act, in its definition of ''person'' or ''child'', is somehow inconsistent with Roe and cases following it. At least as used in assault or homicide statutes to protect an infant born after a failed abortion, someone might object that this legislative definition abridges a woman's freedom to abort.
It does not. There is a short and a longer explanation for the answer. The short explanation: the objection as I have stated it is not an objection to this Act, but to another law as appliedwith this definitionto particular circumstances. Whether some other law as applied in an uncommon, if not rare, circumstance, is unconstitutional is not the question before this committee. This Act is surely facially valid. And the number of cases in which this Act's definition might create a constitutional question is, I am sure, a very small proportion of total applications. It seems to me that such a prospect does not outweigh the many benefits to one and all of codifying the definition of these important terms.
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The longer reason can actually be stated succinctly: there are no unconstitutional applications of the Act. Defending this conclusion is what takes a little longer. Here is that defense.
The act would be unconstitutional if the Supreme Court in Roe or in some other case held that Congress could not define person as a newborn, over against the choice of a woman inducing her own abortion. The Roe Court did indeed say that it did not ''need [to] resolve the difficult question of when life begins'' (410 U.S. at 159). The Court there said the ''the judiciary . . . is not is a position to speculate as to the answer.'' (Id.) But, in no general or broad way, did the Court hold that the states or the Congress operated under a similar disability. All that the Court held in this regard was that Texas (and thus any other governmental body, including for argument sake, the Congress) ''could not override the rights of the pregnant woman'' by adopting an answer to the question of when life begins, so that a woman was deprived of all freedom of choice. But, by stating that an abortion must occur before birth, Congress does not deprive any woman of the freedom to ''terminate her pregnancy''.
We can take instruction from the Supreme Courts' 1989 Webster decision. There the state of Missouri had legislated that the ''life of each human being begins at conception'', and that ''unborn children have protectable interests in life, health, and well-being.'' The 8th Circuit Court of Appeals seems to have adopted the view of Roe stated as an ''objection'' here, that the state had, in light of Roe, ''impermissibl[y]'' adopted a ''theory of when life begins.'' But the Supreme Court reversed this part of the 8th Circuit holding, stating that its own prior decisions, including Roe, meant ''only that a state could not justify an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the state's view''. (Emphasis added). Again, so far considered, this Act is not ''invalid under Roe'', for it does not deprive any woman of freedom of choice to abort any time before birth.
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Is there a broader spirit of Roe which might limit application of the Act? What of the limit case of a woman who exercises her liberty to terminate a pregnancywho thus wishes to avoid maternitybut who ends up the mother of an infant anyway. Is there, at least in this situation, a violation of the spirit of Roe, if Congress can ''force'' her to be a mother against her will?
There is language in the Roe opinion to support this objection. At 410 U.S. 153, the Court catalogued the ''detriment'' the government would ''impose'' upon a pregnant woman by denying her the freedom to choose an abortion:
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
Quite obviously these are ''detriments'' not of pregnancy, but of having and raising a child. Given the expansive definition of health in the Roe companion case of Doe v. Boltonincluding all aspects of well-beingand the affirmation of the health exception itself by a majority of the Court last month in Stenberg v. Carhart, is there not some very brief time after live birth for the woman to decide whether to keep the baby?
Page 130 PREV PAGE TOP OF DOC The answer as a matter of constitutional law is surely not. The obviously post-natal nature of the ''detriments'' ''imposed'' upon the pregnant woman denied access to abortion supports, rather than undermines, this conclusion. Beginning with Roe itself, the Supreme Court has consistently, and unanimously as far as I can tell, drawn the line of a woman's authority to control the consequences of her reproductive activity at live birth, the precise line followed by the Actin spite of the difficulties, detailed in Roe, ensuing for some women.
In its first favorable reference to abortion in its history, the Supreme Court spoke in Eisenstadt of a protected choice to ''bear'' or ''beget'' a child. ''Bear'', in the common understanding and surely in the mind of the Eisenstadt Court, means ''to give birth''. It has no post-natal reference; when birth is concluded, a child has been born. Roe v. Wade consistently, without exception, referred to abortion as the ''termination of pregnancy''. Nowhere did the Roe Court even hint that ''abortion'' might refer to the termination of a born child. The Roe Court often referred to ''potential life'', and used that term interchangeably with the ''fetus'', or the child in utero. All these terms were contrasted to the child born alive. The phrase ''live birth'' appears many times as the analytical divide in the Roe opinion, indicating in every case that no one on the Court questioned the appropriateness of legal protection of the just-born infant. Most important, in its discussion of what counts as a ''person'' within the meaning of the Constitution, the Roe Court again drew the line at birth. After listing the many uses of ''person'' in the Constitution, the Court concluded that it applied only ''post-natally''. At the same time, the abortion liberty extended only pre-natally. In truth, the most plausible interpretations of Roe, as it bears upon this Act, is not that Congress has violated or even stretched the Constitution. On the most plausible interpretation of Roe, Congress has codified a constitutional command.
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In truth, the born alive rule is essential to making any sense of the Roe Court's term ''potential life''. The Roe Court said that ''viable'' fetuses were those capable of living outside the womb, independent of the mother. These unborn children the Court nevertheless referred to as possessing, or being, ''potential life'', which the state might protect even by proscribing abortions (save for those necessary to the life or health of the mother). But: what, is ''potential'' about these ''li[ves]''? Already (actually) able to live outside the womb, the ''potential[ity]'' could, it seems, only be spatial: able now to live (to be ''life''), but only ''potentially'' outside the womb. Simply put, ''potential life'' refers to the same analytical divide we find in the Act: ''potential'' persons become actual persons precisely by being born.
The Court's line drawing was supported by the spirit of its ruling, which was only one part animated by a woman's liberty. The Court stressed in unmistakably clear terms that this liberty was not absolute, and that it was limited by the social interest in protecting ''potential life''a child in uteroand, after birth, by the exceptionless protection of new persons.
Finally, I turn to a more modest objection, one based upon the majority opinion in Stenberg v. Carhart, last month's partial-birth abortion decision. The objections is this: might not this Act interfere with some abortions, especially those occurring in late term? Use of the terms ''delivered'' and ''substantial portion'' of an ''intact unborn child'' failed, in Carhart, according to medical usage, to reliably identify only the partial-birth abortion procedure. Does ''complete expulsion or extraction'' from the mother clearly delineate, and protect, all ''abortions''? Might some ''abortions'', at least according to medical authorities, be prohibitedor chilledby the Act's protection of born-alive infants?
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Again, the answer is, no. According to the very same authorities depended upon by the Carhart majority, the Act's definition of ''born alive'' as ''complete expulsion or extraction'' accurately describes ''birth'' which, according to the same authorities, terminates a ''pregnancy''. Webster's Third Edition defines ''birth'' as ''the act of coming forth from the womb'', ''the emergence of a new individual from the body of its parent'' . ''Pregnant'' is defined as ''containing unborn young within the body'', ''preparing to bring forth'' an unborn individual.  Maloy's Medical Dictionary for Lawyers (3rd. 1960) defines pregnancy as ''the state of being with young; preparing to bring forth'' ; ''birth'' is ''the act of coming into life, or being born''. . The Oxford-English Dictionary (2nd edition) defines ''birth'' as ''the bearing of offspring''; ''bringing forth''. ''Pregnant'', according to the OED, is ''with child or young''.
Abortion, these sources and the cases make clear, refers exclusively to terminating a ''pregnancy''. Another way to terminate a ''pregnancy'', it is equally clear, is to give ''birth''. Having given ''birth'' by completely expelling the child from the womb, the Act assures equal protection of the law to the person just born. The woman is not then prohibited, by this or any other act, from securing or completing an ''abortion''. From the moment of birth on, ''abortion'' is, according to standard medical usage, impossible. No ''pregnancy'' remains to be terminated.
Mr. CANADY. Thank you, Professor Bradley.
Page 133 PREV PAGE TOP OF DOCSTATEMENT OF F. SESSIONS COLE, M.D., PROFESSOR OF PEDIATRICS AND CELL BIOLOGY AND PHYSIOLOGY, WASHINGTON UNIVERSITY SCHOOL OF MEDICINE, ST. LOUIS, MO
Mr. COLE. Thank you very much, Mr. Chairman, honorable representatives, staff and spectators. My name is Francis Sessions Cole, and my family, including our two daughters, ages 16 and 14, and my wife of 28 years, resides in St. Louis, Missouri. I appear before you to offer testimony concerning Representative Canady's Born-Alive Infants Protection Act of 2000, H.R. 4292, as a physician whose specialty is care of newborn infants. My testimony is not sponsored by any organization.
I completed my pediatric residency training at Boston Children's Hospital and my specialty training in caring for newborn infants in the joint program of neonatology at the Harvard Medical School. Since my board certification in pediatrics in 1981, I have cared for more than 10,000 newborn infants directly, and I currently have administrative responsibility for approximately one-half of all the babies born in St. Louis annually, approximately 13,000 babies. I also have an active clinical practice that focuses on caring for babies, whose transition from womb to world is complicated by one or more problems like prematurity, birth defects, infections or problems with the afterbirth or placenta. I routinely encounter babies whose problems place them on the edge of viability.
The language of H.R. 4292 would impose on doctors and parents a universal definition of life or ''alive'', which is, in my experience as a neonatologist, inconsistent with the harsh reality presented by a number of circumstances. The fact is, that the characteristics identified in the bill, breathing, or a beating heart, or pulsation of the umbilical cord, or definite movement of voluntary muscles, are not themselves necessarily indicative of life or continued viability. Frequently the heartbeats of infants will be maintained by medicines, not nature. Their breathing may be present but ineffective as they die. They may move voluntary muscles during the dying process.
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As a physician who cares for ill newborn infants, I feel that I have the greatest practice in medicine, because my practice permits me to participate in miracles every day. Thanks to significant advances in technology over the last 20 years, babies whose parents could have been offered no hope, can now see their babies survive, and for the most part, exceed both their parents' and their doctors' expectations as they develop.
Unfortunately, even today's most advanced medical science is still a long way from being able to offer every sick infant a reasonable chance for survival. In fact, in our neonatal intensive care unit, approximately 10 percent of the infants do not respond to advanced technology and pass away. These deaths result from accidents of nature that are no one's fault, and they are excruciatingly difficult for parents, doctors and nurses. Frequently the emotional pain of the decision to terminate treatment in such cases is compounded by the fact that the technology that we provide babies requires painful, invasive procedures. When parents and physicians together decide that life support technology is futile for an infant and is only prolonging the pain of the dying process, parents have a moral and legal obligation to minimize the suffering of their baby, regardless of the pain such a turn of events brings to them in their loss.
The language of H.R. 4292 will, in my view, significantly interfere with the agonizing, painful and personal decisions that must be left to parents in consultation with their physicians. Imposing the proposed definition of ''alive'' or ''life'' for statutory purposes may cause parents to prolong the medically inevitable dying process of their infants out of fear that terminating that process might be deemed to be, for legal purposes, the termination of a life, when in fact, all that would be terminated would be the painful process of death. Prolonging treatment in such cases would not be the saving of a life, but the prolonging of the pain and suffering of inevitable death.
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As a physician whose career has been dedicated to the welfare of newborns, and especially critically ill newborns, I urge the subcommittee not to inject an unnecessary and unrealistic definition of ''life'' with all its legal implications, into the already agonizing and heartbreaking situation faced by parents of infants in the dying process. Thank you very much.
[The prepared statement of Dr. Cole follows:]
PREPARED STATEMENT OF F. SESSIONS COLE, M.D., PROFESSOR OF PEDIATRICS AND CELL BIOLOGY AND PHYSIOLOGY, WASHINGTON UNIVERSITY SCHOOL OF MEDICINE, ST. LOUIS, MO
Mr. Chairman, Honorable Representatives, Staff, and spectators. My name is Francis Sessions Cole, and my family, including our two daughters, ages 16 and 14, and my wife of 28 years resides in St. Louis, Missouri. I appear before you to offer testimony concerning Representative Canady's Born Alive Infants Protection Act of 2000 (H.R. 4292) as a physician whose specialty is care of newborn infants. My testimony is not sponsored by any organization. I completed my pediatric residency training at Boston Children's Hospital and my specialty training in caring for newborn infants in the Joint Program in Neonatology at Harvard Medical School. Since my Board certification in Pediatrics in 1981, I have cared for more than 10,000 newborn infants directly, and I currently have administrative responsibility for approximately one half of all the babies born in St. Louis annually (approximately 13,000 babies). I also have an active clinical practice that focuses on caring for babies whose transition from womb to world is complicated by one or more problems like prematurity, birth defects, infections, or problems with the afterbirth or placenta. I routinely encounter babies whose problems place them on the edge of viability.
Page 136 PREV PAGE TOP OF DOC The language of H.R. 4292 would impose on doctors and parents a universal definition of ''life'' or ''alive'' which is, in my experience as a neonatologist, inconsistent with the harsh reality presented by a number of circumstances. The fact is that the indicia identified in the billbreathing, or a beating heart, or pulsation of the umbilical cord, or definite movement of voluntary musclesare not themselves necessarily indicative of life or continued viability. Frequently, the heartbeats of infants will be maintained by medicines, not nature; their breathing may be present but ineffective as they die; they may move voluntary muscles during the dying process.
As a physician who cares for ill newborn infants, I feel that I have the greatest practice in medicine, because my practice permits me to participate in miracles everyday. Thanks to significant advances in technology over the last 20 years, babies whose parents could have been offered no hope can now see their babies survive and, for the most part, exceed both their parents' and their doctors' expectations as they develop. Unfortunately, even today's most advanced medical science is still a long way from being able to offer every sick infant a reasonable chance for survival. In fact, in our neonatal intensive care unit, approximately 10% of the infants do not respond to advanced technology and pass away. These deaths result from accidents of nature that are no one's fault, and they are excruciatingly difficult for parents, doctors, and nurses. Frequently, the emotional pain of the decision to terminate treatment in such cases is compounded by the fact that the technology that we provide babies requires painful, invasive procedures. When parents and physicians together decide that life support technology is futile for an infant and is only prolonging the pain of the dying process, parents have a moral and legal obligation to minimize the suffering of their baby, regardless of the pain such a turn of events brings to them in their loss.
Page 137 PREV PAGE TOP OF DOC The language of H.R. 4292 will, in my view, significantly interfere with the agonizing, painful and personal decisions that must be left to parents in consultation with their physicians. Imposing the proposed definition of ''alive'' or ''life'' for statutory purposes may cause parents to prolong the medically inevitable dying process of their infants out of fear that terminating that process might be deemed to be, for legal purposes, the termination of a life, when in fact all that would be terminated would be the painful process of death. Prolonging treatment in such cases would be not the saving of a ''life'', but the prolonging of the pain and suffering of inevitable death. As a physician whose career has been dedicated to the welfare of newborns, and especially critically-ill newborns, I urge the Subcommittee not to inject an unnecessary and unrealistic definition of ''life'', with all its legal implications, into the already agonizing and heart-breaking situation faced by parents of infants in the dying process.
Mr. CANADY. Thank you, Dr. Cole.
As everyone has heard, there is a vote proceeding on the House floor, so the subcommittee will need to stand in recess while members go to vote. This is just one vote, so I encourage the members to come back immediately after the vote, and then we will conclude hearing the testimony and have a round of questions.
I again, apologize and express my gratitude for the patience of the witnesses. The subcommittee stands in recess.
Mr. CANADY. The subcommittee will be in order. I believe that will be the last interruption in our hearing. That is certainly my hope. Again, I thank everyone for your patience. And we will now turn to Dr. Bowes.
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STATEMENT OF WATSON A. BOWES, JR., M.D., PROFESSOR EMERITUS, DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL SCHOOL OF MEDICINE
Mr. BOWES. My name is Watson Bowes. I am a professor Emeritus of Obstetrics and Gynecology at the Department of Obstetrics and Gynecology at the University of North Carolina at Chapel Hill. I am board certified in both obstetrics and maternal-fetal medicine, and my major professional interest was in the care of women with high-risk pregnancies, especially those at risk of delivery of a premature infant.
From 1982 until 1999, I was a member of the full-time faculty at University of North Carolina, and during that time one of my responsibilities, from 1984 until 1998, was being chairman of the Infant Care Review Committee at North Carolina Hospitals. This interdisciplinary committee had the responsibility of developing guidelines regarding withholding or withdrawing medical care from seriously ill infants and reviewing any instance in which there was concern that these guidelines were not followed. Also, from 1994 until 1999, I served on the Committee on Ethics of the American College of Obstetricians and Gynecologists, and was the chairman of that committee during the last 2 years of that time.
My comments and opinion about H.R. 4292 are not made in behalf of the University of North Carolina or any other organization.
I have read the legislation proposed in H.R. 4292 that states that the criteria that an infant is born alive at any stage of development is that the infant breathes or has a beating heart, pulsation of the umbilical cord or definite movement of voluntary muscles. This definition applies regardless of the duration of pregnancy at which the infant is born or the means by which it is born. This definition of live birth is consistent with that of the World Health Organization, and it is in current use by health department guidelines throughout most of the United States. Furthermore, these criteria of live birth are unambiguous and easily discernible by any birth attendant.
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It is my opinion that this definition of being born alive does not and will not have a detrimental effect on either maternal or infant health care. I am confident of this because this is the definition of live birth that is in effect and has been in effect in the State of North Carolina in which I practiced for 18 years. During this time these criteria for defining live birth did not interfere with physicians making clinical judgments about providing appropriate care for newborn infants, nor with parents being involved in those decisions. Importantly, this definition of live birth does not restrict a physician's prerogative to recommend that medical care regarded as futile be withdrawn or withheld.
Finally, in my role on the Infant Care Review Committee at University of North Carolina Hospitals, I was never aware of the egregious use or prolongation of futile medical interventions that could have been attributed to this definition of live birth.
Thank you for the appropriate to testify before this committee.
[The prepared statement of Dr. Bowes follows:]
PREPARED STATEMENT OF WATSON A. BOWES, JR., M.D., PROFESSOR EMERITUS, DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL SCHOOL OF MEDICINE
Chairman Hyde and members of the committee:
My name is Watson A. Bowes Jr. I am professor emeritus of Obstetrics and Gynecology in the School of Medicine at the University of North Carolina at Chapel Hill. My medical school education and residency training in Obstetrics and Gynecology were at the University of Colorado Medical Center in Denver. I am board certified in Obstetrics and Gynecology and Maternal-Fetal Medicine. My major professional interest was in the care of women with high-risk pregnancies, especially those at risk of delivery of a premature infant.
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From 1982 until June 20, 1999, I was a member of the full-time faculty of the University North Carolina at Chapel Hill. From 1984 until 1998 I was chairman of the Infant Care Review Committee at the University of North Carolina Hospitals. This interdisciplinary committee had the responsibility of developing guidelines regarding withholding or withdrawing medical care from seriously ill infants and reviewing any instance in which there was concern that these guidelines were not followed. Also from 1994 until 1999 I served on the Committee on Ethics of the American College of Obstetricians and Gynecologists and was Chairman of that committee during the last two years of that time.
My comments and opinions about H.R. 4292 are not made in behalf of the University North Carolina or any other organization.
I have read the legislation proposed in H.R.4292 which states that the criteria that an infant is born alive at any stage of development are that the infant ''breaths or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.'' This definition applies regardless of the duration of pregnancy at which the infant is born or the means by which it is born. This definition of live birth is consistent with that of the World Health Organization and is in current use by health department guidelines throughout most of the United States. Furthermore, these criteria of live birth are unambiguous and easily discernible by any birth attendant.
It is my opinion that this definition of being born alive does not and will not have a detrimental effect on either maternal or infant health care. I am confident of this because this is definition of live birth that is in effect in the state of North Carolina in which I practiced for 18 years. During this time, these criteria for defining live birth did not interfere with physicians making clinical judgments about providing appropriate care for newborn infants nor with parents being involved in those decisions. Importantly, this definition of live birth does not restrict a physician's prerogative to recommend that medical care regarded as futile be withheld or withdrawn.
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Finally, in my role on the Infant Care Review Committee, I was never aware of the egregious use or prolongation of futile medical interventions that could have been attributed to this definition of life birth.
Mr. CANADY. Thank you very much, Dr. Bowes.
STATEMENT OF ROBERT P. GEORGE, McCORMICK PROFESSOR OF JURISPRUDENCE, DEPARTMENT OF POLITICS, PRINCETON UNIVERSITY
Mr. GEORGE. Thank you, Mr. Chairman, Congressman Nadler. The chairman was kind enough in his introductory remarks to mention my 6 years of service on the United States Commission on Civil Rights, and in that capacity I previously had the honor of testifying before this committee in its oversight role.
My basic philosophy of civil rights is simple. It is the philosophy of the Declaration of Independence, and I believe the Constitution of the United States. At its core is the self-evident principle that all human beings are created equal. Each member of the human family, as a unique and irreplaceable child of God, is endowed with inestimable and equal worth and dignity, equal. We human beings may be unlike each other, or if you will, unequal, in various respects. Some are endowed with greater, some with lesser, intelligence, ability, physical strength and vigor and so forth. But none of these factors vitiates the fundamental sense in which we are truly created equal and entitled as a matter of right to the equal protection of the laws. Of course, any of us, by the wrongful exercise of his or her freedom may forfeit liberty and certain other rights. But none of us exists at the pleasure of others or merely to serve their interests or fulfill their desires. There are no natural slaves or master. No human being is the mere property of anyone else or disposable at others' whims.
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Our most basic rights, including the right to life, are inherent, and in no way contingent on a grant from the state or any other merely human authority. As an inherent right, the right to life, which, properly specified, is a right not to be killed either as an end in itself or as a means to some other end, comes into being for us when we come into being. It is not a privilege that we earn by achieving a certain level of consciousness or intelligence or other ability or capacity. It is nothing something that comes or goes with age, size, stage of development, or condition of disability or dependency, and it is certainly not something that depends on whether someone else happens to want us or would prefer, all things considered, that we not exist.
If my philosophy of civil rights were uncontroversial, there would be no need for me and other witnesses to be here today or for your to trouble yourselves with this hearing. Infanticide would be unthinkable. Even those who believe in abortion, as I do not, would draw the line at birth, if not before, on the ground that the physical separation of mother and child eliminates any concern that protecting the life of the child would violate the rights of the mother. But today the philosophy of civil rights I hold is far from undisputed. Infanticide is openly defended, and even put forward as itself a right. Indeed, in the academy the intellectual groundwork is already in place, already in place, to extend the right to abortion into the post-natal phase.
In an article entitled ''Killing Babies Is Not Always Wrong'', Professor Peter Singer, who has since become my colleague at Princeton where he is DeCamp Professor of Bioethics in the University Center for Human Values, made the following proposal.
Page 143 PREV PAGE TOP OF DOC ''Perhaps like the ancient Greeks, we should have a ceremony a month after birth, at which the infant is admitted to the community. Before that time, infants would not be recognized as having the same right to life as other people.''
Now, I understand that Professor Singer has since backed away from the proposed ceremony, but he has not altered his view that we should do away in law and ethics with the principle at the core of traditional concepts of human rights and equality, namely, that it is always wrong intentionally to kill innocent human beings, nor has he abandoned his claim that newborn human beings are not ''persons'' with a right to life that must be respected and protected by law. He continues to insist that human beings only become ''persons'', and acquire a right to life, sometime well after birth. He denies then that we are created equal and affirms a concept which, frankly, makes me shudder: that of a class of human beings, including newborn infants, who are, in effect, human non-persons.
Well, is Professor Singer alone or eccentric in these beliefs or in their public advocacy? Far from it. In fact, his position is not even new. Something very much like it was articulated in a mainstream philosophical journal as early as 1972 by Philosopher Michael Tooley. Writing even before legal prohibitions were swept away by the Supreme Court's decision in Roe and Doe v. Bolton, Professor Tooley bluntly declared that human fetuses and infants, ''do not have a right to life.'' Only ''persons'' have a right to life, and fetuses and infants are not, he insisted, persons. Life Singer, Tooley expressed no doubt that infants, or for that matter, fetuses are human beings. He acknowledged, as does Singer, the plain fact that from the beginning of our lives, well before birth, we are distinct, whole, living members of the species Homo sapiens. But, he insisted, that we do not become persons, we do not acquire a right to life, until well after we are born. According to Professor Tooley, a human being or other organism, ''possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity.'' Infants do not qualify.
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Here in Washington, DC, American University philosophy professor, Jeffrey Reiman, while expressly declining to settle the issue about the moral status of infanticide, also claims that infants are not persons with a right to life. While he offers some reasons why people might nevertheless think it generally wrong to kill newborn babies, he promotes the view that infants, unlike more mature human beings, do not, ''possess in their own right a property that makes it wrong to kill them.'' He denies that infants are members of the community who share equal worth, dignity, and rights, and explicitly holds that, ''there will be permissible exceptions to the rule against killing infants that will not apply to the rule against killing adults and children.''
Members of the committee, I could go on with example. For now though, suffice it to say that people who wish to destroy a, ''unwanted child'', not a child in utero, mind you, an unwanted child living, breathing, have today in the academy, here in the United States, influential scholars who are willing to say that the baby they seek to have killed is not in fact a person with an equal right to life. Some of these scholars promote the idea that killing an infant at the request of its parent, presumably a father as well as a motherin view of the fact that the physical separation of the child from the mother seems to confer on a father an equal right to command the death of the child non-personis morally acceptable and ought to be legally permitted.
The legitimization of infanticide constitutes a grave threat to the principle of human equality at the heart of American civil rights ideals. If weak and vulnerable members of the human familyand infants are surely among the weakest and most vulnerablecan be defined out of the community of, ''person'', whose fundamental rights must be respected and protected by law, the constitutional principle of equal protection becomes a sham. We must begin now putting into place bulwarks against that threat. I therefore, respectfully urge passage of H.R. 4292, the Born-Alive Infants Protection Act. And I thank you, Mr. Chairman, and members of the committee.
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[The prepared statement of Mr. George follows:]
PREPARED STATEMENT OF ROBERT P. GEORGE, MCCORMICK PROFESSOR OF JURISPRUDENCE, DEPARTMENT OF POLITICS, PRINCETON UNIVERSITY
My name is Robert P. George. I am McCormick Professor of Jurisprudence in the Department of Politics at Princeton University. At Princeton, I teach courses in constitutional interpretation, civil liberties, and philosophy of law. I am author of two books in the field of moral and political philosophy and editor of several others. I have published numerous articles and review essays in journals of law, philosophy, and political science. From 1993 to 1998, I served on the United States Commission on Civil Rights, and in that capacity I previously had the honor of testifying before this Committee.
My basic philosophy of civil rights is simple. It is the philosophy of the Declaration of Independence and, I believe, the Constitution of the United States. At its core is the self-evident principle that all human beings are created equal. Each member of the human family, as a unique and irreplaceable child of God, is endowed with inestimable and equal worth and dignity. We human beings may be unlike each other (or, if you will, ''unequal'') in various respectssome are endowed with greater, some with lesser, intelligence, ability, physical strength and vigor, etc.but none of these factors vitiates the fundamental sense in which we are truly ''created equal'' and entitled as a matter of right to ''the equal protection of the laws.'' Of course, any of us, by the wrongful exercise of his or her freedom, may forfeit liberty and certain other rights. But none of us exists at the pleasure of others or merely to serve their interests or fulfill their desires. There are no natural slaves or masters. No human being is the mere property of anyone else, or disposable at others' whims.
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Our most basic rightsincluding the right to lifeare inherent and in no way contingent on a grant from the state or any other merely human source. As an inherent right, the right to life, which, properly specified, is a right not to be killed either as an end in itself or a means to any other end, comes into being for us when we come into being. It is not a privilege that we earn by achieving a certain level of consciousness or intelligence or other ability; it is not something that comes or goes with age, size, stage of development, or condition of disability or dependency; it is certainly not something that depends on whether someone else happens to ''want'' us or would prefer, all things considered, that we not exist.
If my philosophy of civil rights were uncontroversial, there would be no need for me and the other witnesses to be here today or for you to trouble yourselves with this hearing. Infanticide would be unthinkable. Even those who believe in abortion, as I do not, would draw the line at birth, if not before, on the ground that the physical separation of mother and child eliminates any concern that protecting the life of the child would violate the rights of her mother. But today the philosophy of civil rights I hold is far from undisputed. Infanticide is openly defended and even put forward as itself a right. Indeed, in the academy the intellectual groundwork is already in place to extend the right to abortion into the post-natal phase.
In an article entitled ''Killing Babies Isn't Always Wrong'' (The Spectator, 16 September 1995, pp. 2022), Professor Peter Singer, who has since become my colleague at Princeton where he is DeCamp Professor of Bioethics in the University Center for Human Values, made the following proposal:
Page 147 PREV PAGE TOP OF DOCPerhaps, like the ancient Greeks, we should have a ceremony a month after birth, at which the infant is admitted to the community. Before that time, infants would not be recognized as having the same right to life as older people.
Now, I understand that Professor Singer has since backed away from the proposed ceremony, but he has not altered his view that we should do away in law and ethics with the principle at the core of traditional concepts of human rights and equality, namely, that it is always wrong intentionally to kill innocent human beings; nor has he abandoned his claim that newborn human beings are not ''persons'' with a right to life that must be respected and protected by law. He continues to insist that human beings only become ''persons,'' and acquire a right to life, sometime well after birth. He denies that we are ''created equal'' and affirms a concept which, frankly, makes me shudder: that of a class of human beings, including newborn infants, who are, in effect, nonpersons.
Is Professor Singer alone in these beliefs or in their public advocacy? Far from it. In fact, his position isn't even new. Something very much like it was articulated in a mainstream philosophical journal as early as 1972 by philosopher Michael Tooley. (''Abortion and Infanticide,'' Philosophy and Public Affairs, Vol. 2.) Writing even before legal prohibitions of abortion were swept away by the Supreme Court's decisions in Roe v. Wade and Doe v. Bolton, Professor Tooley bluntly declared that human fetuses and infants ''do not have a right to life.'' Only ''persons'' have a right to life, and fetuses and infants are not, he insisted, ''persons.'' Like Singer, Tooley expressed no doubt that infants (or, for that matter, fetuses) are human beings. He acknowledged, as does Singer, the plain fact that from the beginning of our liveswell before birthwe are distinct, whole, living members of the species Homo sapiens. But, he insisted, we do not become ''persons''we do not acquire the right to lifeuntil well after we are born. According to Professor Tooley, a human being (or other organism) ''possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity.'' Infants do not qualify.
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Here in Washington, D.C., American University philosophy professor Jeffrey Reiman, while expressly declining ''to settle the issue about the moral status of infanticide,'' also claims that infants are not ''persons'' with a right to life. (Critical Moral Liberalism: Theory and Practice (Lanham, Md: Rowman and Littlefield, 1997), ch. 8, ''Abortion and Infanticide.'') While he offers some reasons why people might nevertheless think it generally wrong to kill newborn babies, he promoted the view that infants, unlike more mature human beings, do not ''possess in their own right a property that makes it wrong to kill them.'' He denies that infants are members of the community who share equal worth, dignity, and rights, and explicitly holds that ''there will be permissible exceptions to the rule against killing infants that will not apply to the rule against killing adults and children.''
I could go on with examples. For now, though, suffice it to say that people who wish to destroy an ''unwanted'' child have today in the academyhere in the United Statesinfluential scholars who are willing to say that the baby they seek to have killed is not, in fact, a ''person'' with an equal right to life. Some of these scholars promote the idea that killing an infant at the request of its parentpresumably a father as well as a mother in view of the fact that the physical separation of the child from the mother seems to confer on a father an equal right to command the death of the childis morally acceptable and ought to be legally permitted.
The legitimization of infanticide constitutes a grave threat to the principle of human equality at the heart of American civil rights ideals. If weak and vulnerable members of the human familyand infants are surely among the weakest and most vulnerablecan be defined out of the community of ''persons'' whose fundamental rights must be respected and protected by law, the constitutional principle of equal protection becomes a sham. We must begin now putting into place bulwarks against this threat. I therefore respectfully urge passage of H.R. 4292, the Born Alive Infants Protection Act.
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Mr. CANADY. Thank you, Professor George.
I will now recognize Mr. Watt for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman.
Let me first apologize to Professor Bowes for not getting back in time to hear his testimony. As usual, as on this panel and on most issues, there are explanations for things. We normally participate in a reflections group at noon on Thursday, some members, and so I wanted to try to drop by there and at least tell them why I was not there. And I got trapped a little longer than I expected to.
Again, seating Dr. Cole and Dr. Bowes next to each other, almost like the last panel or the panel before last, illustrates the difficulty of this issue, even from a medical perspective. And so I appreciate all of you being here today and taking the time out of your schedules to try to enlighten us on what attitude we should have and what steps we should take on this bill.
Mr. Bradley, I guess the question I have isand I am trying to figure out what practical impact this bill would have on a day-to-day, as-we-move basis. Suppose a child is born alive following an abortion, an attempted abortion, but the child is still born alive. Would that in your judgment infer for that child, if this bill were passed, the right to have an independent guardian ad litem?
Page 150 PREV PAGE TOP OF DOC Mr. BRADLEY. Not necessarily. It is a good question. I don't know the answer or don't have an answer that is backed up by a conviction about my knowledge of what is involved. But I would say that the infant born alive after an attempted abortion is entitled to the equal protection of the law. That is what the bill does.
Whether a guardian ad litem would be necessary to vindicate that right to equal protection of law and to equal treatment, treatment equal to other 1-hour or 1-day-old infants, I don't know. It could be the case that at times it is required.
Mr. WATT. If it appeared that the infant were terminal and that it would take extraordinary means to keep the infant alivelet's assume that set of circumstances for a fact for a momentwould that injection of a guardian ad litem possibility into the equation cut back or diminish the parent's right to make that decision?
Mr. BRADLEY. Well, I think it is true that if you introduce a guardian ad litem or the possibility thereofthe question is raised, let's say, in the delivery roomit does complicate a parent's situation. But my deeper response to the question is, I don't think it complicates the situation of a post-abortion child any more than another child; nor, if this possibility is introduced after an induced abortion, is that post-abortion child being treated better than or, for that matter, worse than any other child. So it complicates
Mr. WATT. Well, I am not sure about that. Doesn't existing law give the parent the right to make that decision? I am talking about extraordinary care situations. It is another
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Mr. BRADLEY. I agree completely.
Mr. WATT. I guess the issue would be a separate set of issues if the child were determined to be able to live without the benefit of any extraordinary measures.
Mr. BRADLEY. I agree completely. It is up to the parents to decide about the appropriateness of extraordinary measures, especially for a terminal infant.
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have3 additional minutes?
Mr. WATT. Whatever. All right. So
Mr. BRADLEY. I mean, if I may, Congressman
Mr. WATT. Let's take it one step further and move beyond the necessity of extraordinary means to prolong the life and assume you get to a situation where the child could survive without extraordinary means. Would this bill, in your judgment, require the appointment of a guardian ad litem, first of all? Would a guardian ad litem currently be required under law, second of all? And then I'd like to ask Mr. Thomas to respond to that same question.
Mr. BRADLEY. No, I don't think a guardian ad litem is required under present law for newborn infants, for instance, who don't require extraordinary care, nor would they be required to be appointed by this bill. Where I agree with you, and I think where the question is originating, is the simple fact that in a case we are contemplating of a failed abortion, you have at least a mother, perhaps both parents present, who have tried to avoid parenthood, parental responsibilities, and rights, and after the birth, accidental, you might say, they presumably remain as determined to be rid of the child.
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So given that that is the situation, a mother or perhaps both parents who wish to be rid of the child or, like I say, the child is unwanted, yes, that case is different with regard to issues about protecting the child's rights, frankly, from the parents in the case we are talking about. So, yes, in the case of the failed induced abortion, there might be a greater frequency where the question of guardian ad litem comes up, because in that case you are talking about parents who at least momentarily wish not to have this child. Yes, there will be a greater frequency or more complications.
Mr. WATT. Mr. Thomas?
Mr. THOMAS. Congressman, I would like to caveat my answer in a number of ways. First, I would like to see the statute that is being discussed before I would be able to answer you. Since we are speaking about basically a very narrow definitional change, it is important, first of all, to look at the statute to see even if the definitional change applies.
Mr. WATT. You mean the guardian ad litem statute
Mr. THOMAS. Correct.
Mr. WATT. As opposed to this statute?
Mr. THOMAS. Correct, to the extent there is a guardian ad litem statute. And then my second caveat would be that some guardian ad litem provisions are found just in court rules, which are not covered by this act, that would be another caveat I would have to examine before I could answer that.
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The third caveat is that most of these cases are going to be in State court, so that that the decision would be made under State law, not Federal law. We are not sure if there would be many instances where an infant would be expelled or extracted in this situation in the Federal special maritime territorial jurisdiction.
Having given all those caveats, I think I would tend to agree with the answer of Mr. Bradley, which is that the guardian ad litem statutes in the context of the failure-to-treat situation is probably a pretty well established legal system, and I don't believe that varying the moment of birthnow this is, again, under my first statutory interpretation. It is leaving out the ambiguity. But under the first statutory interpretation where you are just talking about an infant that has been born alive and you are talking about the treatment of an infant after that birth, then I think the guardian ad litem statutes probably wouldn't be varied and the interests of the child would be represented consistent with existing law on medical treatment and withdrawal of medical treatment.
Mr. WATT. Mr. Chairman, could I just ask for one additional minute
Mr. CANADY. Sure. Without objection, the gentleman will have one additional minute.
Mr. WATT. [continuing]. To ask either Dr. Cole or Dr. Bowes whether you have been involved in situations where there have been guardian ad litems in conflict with parents. Either one of you?
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Mr. BOWES. I have not.
Mr. COLE. Yes, we have encountered those situations. Again, they are very complex because they frequently involve babies with diagnoses that are right on the edge of viability. And, in general, my experience now with these situations is that the parents view the baby as having suffered enough, and the guardian ad litem is an individual who is not convinced of that, not convinced of that possibility. And so there is discussion, active discussion in that area.
Mr. WATT. Dr. Cole, do you view the language of this bill as adding to that complication or neutral on that complication? What is your opinion on that?
Mr. COLE. My view is that this bill would add to that complication. We have had experience in the State of Missouri where there are statutes almost verbatim similar to these where recently, at the University of Missouri at Columbia, there were several publicized cases of infants being maintained for up to 30 days after delivery and eventually expiring, but caught in this web of technology and law.
Mr. WATT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you.
The gentleman from New York is recognized.
Page 155 PREV PAGE TOP OF DOC Mr. NADLER. Thank you. Dr. Cole, I am a little confused by how you think this bill would complicate it. By any definitionI mean, frankly, when a baby is born, it is born. It is a person at that point under the meaning of the law. You then have these decisions that have to be made about the use of heroic measures or not. How would this bill add to that simply by defining that baby as a person when it is, frankly, a person under the law already? How would thisI fail to see how this bill would affect that in any way, one way or the other?
Mr. COLE. Well, I can only give you the example that occurred within the last 3 months in the State of Missouri, where, without law but with statutes that basically define epidemiologic, statistical gathering of data, an interpretation at an institution in Missouri was that babies born on the edge of viability but who exhibited these kinds of vital signs could not be at their parents' request withdrawn from life support.
Mr. NADLER. But this bill doesn't say that. This bill doesn't say they can or cannot be withdrawn from life support. This bill simply says that once the baby is born, it is a person. And then you have the question of: Can they be withdrawn from life support at the parents' request? And how does this bill impact on that question at all?
Mr. COLE. Well, only insofar as the interpretation of the bill by individuals who are then required by law to impose their interpretations. I think that would be the major problem.
Mr. NADLER. Yes, but they are required to impose their interpretations the moment there is a live birth, and there is a live birth with or without this bill. The whole point I have been trying to figure out, listening to all the witnesses on both sides of thisand I keep coming up with a big zero, that this bill doesn't do anything, pro, con, or in any way. I don't like enacting laws that do nothing. I think that is wrong for Congress. But I don't seeyou know, you talk in your testimony, you say that when parents and physicians together decide that life support technology is futile and is prolonging the dying process, the parents have a moral and legal obligation to minimize the suffering of the baby, regardless of the pain of such a turn of events. And this bill wouldn't change that. Or how would it?
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Mr. COLE. Well, again, I can only speak to the recent experience in the State of Missouri where, without a bill exactly like this but with a bill close to this, families of babies were required to keep their babies on life support at the University of Missouri at Columbia for approximately 30 extra days until the baby eventually expired. And the explanation for that, at least in the pressI was not involved in those cases. The explanation in the press was that there was concern on the part of the institution and concern on the part of the individuals who were interpreting the statutes and the laws that once life support was
Mr. NADLER. My point is that that concern would be there with or without the statute, because the moment you conceive that the baby is a human being, which I don't think anybody would question.
Mr. Bradley, would you comment on this? And let me ask you this: As I read your testimony, you are saying that this wouldn't implicate Roe v. Wade, this wouldn't do all these things that the pro-choice people are worried that it would do. What, if anything, would it do? I don't see that you are saying that it would do anything.
Mr. BRADLEY. Well, I think I say it codifies what is more or less the practice, but only more or less the practice. I also think it codifies what the Constitution implies. But, frankly, I think the answer to your question, to be honest with you, is probably supplied by the testimony of Dr. Cole. I can only infer from his testimony that there are at least some cases where medical personnel have in mind a class of newborns who are not dead, alive but not quite persons, and I think this bill says, well
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Mr. NADLER. Let me ask you
Mr. BRADLEY. [continuing]. That is the end of that.
Mr. NADLER. Let me ask you the question, and I would ask Mr. Thomas the same question after Mr. Bradley. If a baby were bornand I don't want to prejudice the question by using the term ''baby.'' I am not sure what term to use in this context. But if an infant is born alive, either through natural process or through a botched abortion, at 2 months or 3 months and is clearly not viable but is alive, outside the mother, if someone came along and shot that infant, is there any question in your mind that that would be murder?
Mr. BRADLEY. No.
Mr. NADLER. Sir?
Mr. THOMAS. I would agree that would be homicide.
Mr. NADLER. Okay. If that is the casewell, let me ask you a different question. I was appalled by the testimony of one of the nursesMs. Stanek, I thinkabout the practice at one hospital of having live infants as a result of a certain abortion technique who are alive of giving them no care whatsoever. Do you think that is legal under current law?
Page 158 PREV PAGE TOP OF DOC Mr. BRADLEY. I certainly doubt it.
Mr. NADLER. You think that hospital is breaking the law?
Mr. BRADLEY. I think they are engaged in negligent medical practice, and probablypossiblyeven criminally liable because of neglectful homicide.
Mr. NADLER. Mr. Thomas?
Mr. THOMAS. Well, I think that the homicide statutehomicide statutes are not generally implicated in failure-to-treat cases. Whether or not what their actions were were consistent with failure to treat would depend on the
Mr. NADLER. Failure to treat is a crime?
Mr. THOMAS. Failure to treatactually, to that I would like to defer to my colleague, Jon Shimabukuro.
Mr. SHIMABUKURO. In the short time that we had to prepare for the subcommittee hearing, we did take a look at a number of State statutes that require a doctor to provide medical care if the situation arises. If there is an abortion that is ineffective and what results is this expelled or extracted infant, several States have enacted statutes that require a doctor to provide care. However, those statutes define a prosecutorial scheme or define how
Page 159 PREV PAGE TOP OF DOC Mr. NADLER. Excuse me a second. What I am merely looking for is not this question of State
Mr. CANADY. The gentleman's additional time has expired. Without objection, the gentleman will have 3 additional minutes.
Mr. NADLER. Thank you. I am not looking for this course on existing State statutes that seek to address the same question.
Mr. SHIMABUKURO. Okay.
Mr. NADLER. What I am saying is, in the absence of specific statutes on that, it has always been my understanding that an infant that is separated from its mother is a person, an infant, and that there are certain legal standards that apply, the same legal standards that apply to a person at the other end of life, to someone who is close to death, and there are certain standards that apply that you don't have to doif you think that additional medical treatment is futile and producing simply pain, you don't have to do that, but that simply failureyou couldn't starve somebody to death.
Is that not the case for any newborn regardless of its age, pre-birth, and regardless of how it came to be? Is that not the law without this bill? And if this bill were passed, would that change that in any way?
Mr. THOMAS. Again, failure to treat is not generally dealt with under the criminal laws. It is generally dealt with under civil laws.
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Mr. NADLER. And let's assume this bill passed. Would that change that?
Mr. THOMAS. That would notI don't believe that this bill would have any effect onwell, the effect that we have identified was on homicide laws, and it certainly is not intended to change the homicide laws. So I think the answer is no.
Mr. NADLER. So it has no effect. Mr. Bradley?
Mr. BRADLEY. Well, I think in the vast majority of cases, you are quite right. Common sense tells us when birth occurs, a new person has come to be. But I think there probably are some cases where that has eroded, the commitment to that view has eroded and being replaced, on occasion at least, with a different view. I think that
Mr. NADLER. But that is an illegalyou are saying some people are mistakenly doing that, or you are saying the law has changed?
Mr. BRADLEY. Well, frankly, I think it ought to be illegal, but my guess is that because the law in these areas depends upon a kind of consistent application of the word ''person'' or vigorous enforcement by various people in the field, I can only infer that the kinds of practices that Dr. Cole has described are done, presently speaking, more or less with impunity, and I think those cases, those practices are problematic.
Mr. NADLER. What Dr. Cole described were not improper cases. He was talking about where an infantyou have to make a judgment as to whether, in fact, heroic medical procedures have any chance of saving this infant's life or simply prolonging a painful death. You wouldn't want that to change.
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Mr. BRADLEY. I agree. That is appropriate. That is a matter for judgment of people concerned. What I also
Mr. NADLER. And this bill would not change that, in your view?
Mr. BRADLEY. No. This bill doesn't affect that standard of care at all.
Mr. NADLER. So what does it affect?
Mr. BRADLEY. I infer that it is going toI infer from what he described, the situation he described, that there is a conviction on the part of some people concerned that you are dealing with a class of people who aren't quite persons, even though they are now separated from the mother. And that situation would be changed by this bill.
Mr. NADLER. Is that a fair characterization of what you were saying?
Mr. COLE. Well, again, I have great respect for Mr. Bradley. I have never met him before. I think I have committed my life to having babies be people as soon as they come into my care, and I don't know of any situation where I have been called upon to take care of a baby, no matter how small, where that baby hasn't been given everything that I can possibly give to her or him.
Page 162 PREV PAGE TOP OF DOC Mr. NADLER. Dr. Bowes, my last question
Mr. CANADY. The gentleman may have one additional minute.
Mr. NADLER. Okay. My last question. You are in the same field as Dr. Cole, neonatology?
Mr. BOWES. No, sir. I am in maternal-fetal medicine. I take care of the mothers before they are born and the fetuses before they are born.
Mr. NADLER. All right. I am going to ask you the question, anyway. If you are not competent to answer it or familiar with it, say so, please.
You talked about judgments, about makingthese criteria for defining live birth did not interfere with the physicians making clinical judgment about providing appropriate care for newborn infants, nor with parents being involved in those decisions. You are talking about the same kinds of cases Dr. Cole was talking about. Importantly, this definition of live birth does not restrict a physician's prerogative to recommend that medical care regarded as futile be withheld or withdrawn.
So your testimony is that this bill would have no effect on that.
Mr. BOWES. That is correct. I say that from my experience of working in a State where this is the definition of live birth.
Page 163 PREV PAGE TOP OF DOC Mr. NADLER. Well, let me ask you this: Does this bill do anything at all? If it doesn't affect that, what does it affect?
Mr. BOWES. Apart from, as Chairman Canady said, codifying something that is already in place in most States, it would not affect medical care, in my view.
Mr. NADLER. Okay. So the generalokay. Very good. Thank you very much. Thank you, Mr. Chairman.
Mr. CANADY. The gentle lady from California is recognized for 5 minutes.
Ms. WATERS. Thank you very much. I would like to direct my question to Dr. Cole, and I thinkDr. Bowes, is it?
Mr. BOWES. Yes, ma'am. Thank you.
Ms. WATERS. Dr. Cole, are you familiar with something known as a hydatidiform mole?
Mr. COLE. I am familiar with it, but I would defer to my colleague, Dr. Bowes, as the individual who probably has more experience than I do in that area. Thank you.
Ms. WATERS. Are you familiar with hydatidiform mole?
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Mr. BOWES. Yes, ma'am, I am.
Ms. WATERS. Am I correct in understanding that hydatidiform mole is, in essence, a fetus that is engulfed in wild growth and so it can be expelled from the womb and there can be pulsation and some of thewell, breathing, heartbeat, and movement, even though it is engulfed in this wild, grape-like growth? Is that correct?
Mr. BOWES. No, ma'am. Congresswoman, that is not correct. A hydatidiform mole occurs when only a very small portion of the developing embryo develops. The fetus does not develop; a heartbeat is never developed; a pulsation of the heart, breathing, none of the criteria that you see here would be present in a hydatidiform mole.
Ms. WATERS. I am sorry. You are saying that it does not get to the point of growth where there is a heartbeat?
Mr. BOWES. That is correct. It does not. It develops as only portions of the placenta which have overgrown. There is no organs, such as heart, kidney, or other things that you would find in a fetus or an embryo.
Ms. WATERS. How long can this growth take place in utero?
Mr. BOWES. Up to generally about 12 to 14 weeks. It is unusual for them to go that long, but they can go that long. And what you simply have is this placental tissue. But it would not fulfill the criteria that are described in this proposed statute.
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Ms. WATERS. Well, the reason I asked this question is because that is not my understanding. Number one, it is my understanding that the growth can get to the point of fetus, whatever that is, and that there can be a heartbeat and that, as a matter of fact, the growth can take place in utero until such time that the doctor would assist in expelling it; and at the time of expulsion, that there can be this heartbeat that is going on, which would take it beyond 12 weeks or so. That is my understanding.
Mr. BOWES. Well, I don't want to get too much into the technical matter of this, but a hydatidiform mole is in itself only the placental tissue. A fetus is not there. The fetus did not develop, the embryo did not develop.
Now, there is a condition in which a fetus develops and it has what is called molar degeneration of the placenta. Now, that is quite a different thing. Those fetuses almost never survive because they
Ms. WATERS. Well, let's take your latter becauseand I won't prolong the discussion on the hydatidiform mole. But let's take your latter description, whatever that is, and talk about what happens and what it looks like at expulsion.
Mr. BOWES. Well, the fetus which has molar degeneration of the placenta are usually chromosomally abnormal; they almost alwaysI will have to say are always born way before fetal viability.
Ms. WATERS. What we are looking at in this bill is: Does it have a heartbeat?
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Mr. BOWES. Yes.
Ms. WATERS. Is it breathing?
Mr. BOWES. It mightthat fetus might breathe, yes.
Ms. WATERS. And it could have movements of involuntary muscles; is that right?
Mr. BOWES. Yes.
Ms. WATERS. Now, what would you do with that upon delivery or expulsion?
Mr. BOWES. Well, if that fetus was alive at the time, it would be
Ms. WATERS. Remember we are talking about it has a heartbeat.
Mr. BOWES. It has a heartbeat, yes. All right. And it would be alive at that time.
Now, fetuses at that stage of gestation will not survive irrespective of the degree of intensive care that you would provide.
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Ms. WATERS. But that is not the question here. The question here is: Did arrive outside of the uterus so-called alive or with a heartbeat?
Mr. BOWES. Yes.
Ms. WATERS. That is the question. So what, then, do you do with it?
Mr. BOWES. You provide that fetus with what we call comfort care. You provide it with warmth andnot intensive care in the sense of active resuscitation, because that would be futile care.
Ms. WATERS. So now you are determining whether or not this fetus that probably won't live will receive a certain level of care. You are making some decisions about whether or not to have intensive care or some level of care. You are making some decisions about what to do. Is that right?
Mr. BOWES. Yes. I think Dr. Cole and I would agree that those decisions have to be made in these situations.
Ms. WATERS. Well, I think that really answers my question. The question
Mr. CANADY. The gentle lady's time has expired. Without objection
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Ms. WATERS. Unanimous consent, yes.
Mr. CANADY. [continuing]. The gentle lady may have 3 additional minutes.
Ms. WATERS. One of the reasons I don't like to get into this kind of discussion is because we are lay people and we don't know all of the circumstances of birth and we don't know all of the possibilities of something that is delivered or expelled, that could have the signs, so-called, of life that are described here. And to determine that someone may be guilty because they did not provide a certain level of care or they didn't provide any care, that they are guilty somehow of not attending to a so-called live birth in ways that this bill would attempt to describe bothers me, because we don't knowwe don't know, and you just qualified, you know, that a doctor in that case would make a decision about whether or not there is something that you describe as comfort care, with warmth, or whether or not there should be attentive care. But the fact of the matter is you are making a decision based on your best medical background and knowledge and understanding about how to practice medicine. Is that right?
Mr. BOWES. That is correct.
Ms. WATERS. And that is what I want doctors to do. I don't want to be on this panel telling you how to do that. I don't want to tell any doctor how to do that. I trust that you care just as much about those babies as Dr. Cole has described in the way that he talked about how proud he is to be a doctor and to deliver and how many babies he has been involved with. And that is why I worry, I worry so much when we start to try and talk about something we don't know.
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I can talk about some of these things that I know about, and I want to tell you that there are several such things that I know about that fall within this category, that we cannot sit here and tell you that if it is going with a heartbeat that somehow it is alive and should be cared for and, you know, attempt to keep it alive, because I don't think even you would agree with that.
Mr. BOWES. Well, with all due respect, Congresswoman, I think those situationsI think the definitions here do not alter the way the care would be provided in those situations that you have mentioned.
Ms. WATERS. I think I disagree with you.
Mr. BOWES. Well, what I am saying is, for 18 years I have practiced in a State where we have exactly this definition, and in our tertiary care center, where I was on the committee that had to review all of these sorts of situations, this definition did not interfere with making those kindswith the physicians makingand the parents, together, making those kind of
Ms. WATERS. Okay. And let me just
Mr. BOWES. [continuing]. Judgments and decisions.
Ms. WATERS. With the time that has been granted, unanimous consent if I need one more minute
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Mr. CANADY. Without objection, the gentle lady will have one additional minute.
Ms. WATERS. Thank you very much. The reason I disagree with you is this, Doctor: that there may be a difference of opinion among doctors about what to do in one of those unusual circumstances, and the one that decides to do nothing is nothey are not anythey are not guilty of causing the death of a fetus or of being negligent in any way. It was a professional decision that the circumstances such that probably will not survive, should not do anything, or there may be a doctor who would say I am going to do something, based on what I know and what I understand, I am going to provide a certain kind of guesswork treatment that may cause this toso what I am saying is I disagree because one is no more guilty than the other, whatever decision they make either way, in my opinion.
Mr. BOWES. Well, let me just comment upon that. There are those difficult situations where there are differences of
Mr. CANADY. The gentle lady's time has expired. I will recognize myself now, and I would like to recognizego to Dr. Bowes to complete his answer, and then I want to recognize Professor George, who appears to be yearning to say something.
Mr. BOWES. Thank you, Chairman Canady. In those situations where there were differences of opinion, in our hospital the Infant Care Review Committee was asked to review those situations, become involvedthis is a multidisciplinary committee with lay people, clergy, social workers and so forth on itto review those situations and help resolve those difficult problems. These are times when either the babies are very small, right at the borderline of viability, or there are congenital defects that may or may not be able to be treated, and there areyou have described the situation very well. There are differences of opinion among physicians, and this was our way of resolving those.
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But this definition of ''live birth'' did not interfere with making those kinds of decisions and involving the parents in them.
Mr. CANADY. Thank you, Dr. Bowes.
Mr. GEORGE. Thank you, Congressman Canady. I wanted to respond to Congressman Waters' question in the spirit of something that Congressman Nadler said earlier. In cases of severely disabled children or very premature children, decisions about the level of care will have to be made, and within a certain range, the law leaves those decisions to the discretion of parents guided by physicians.
However, this is entirely independent of the question because decisions will have to be made either way. The question whether the being, the human being, the member of homo sapiens being cared for is a person or not, if that being is a person, then that person is entitled to the same level of care as any other person. The kind of disability we are talking about here can happen as a result of injuries even to a 5-year-old or a 13-year-old who are indisputable persons. And at that point decisions will have to be made.
So now the only question becomes: Are children, once they are separated from their mothers, persons and, therefore, entitled to the protection of the law? If they are, the law has to recognize that. It is wrong for the law to fail to recognize that. What is that?
Page 172 PREV PAGE TOP OF DOC Mr. NADLER. But the law already
Mr. GEORGE. Now, Congressman Nadler, if I could respond to your point about the law already does, I am afraid I disagree with Professor Bradley and with Mr. Thomas to some extent. I do not think that there is uniformity of opinion even among jurists, much less professors, and the decision by Clement Haynsworth from years ago is some evidence of this. But I could cite you more. I have got some Law Review articles right here, for example, disagreement about whether a child, once separated as the result of an unsuccessful abortion is, in fact, a person who has the equal protectionis entitled to the equal protections of the law.
Professor Reiman, who I cited earlier, for example, says, well, if that is the case, if you interpret a case like Roe v. Wade that way, then it would eviscerate the right to abortion once it became possible technologically to extract the child from the womb at early points and sustain it through the rest of its life.
So there has always been, from the very beginning, a debate and Roe v. Wade is unclear about this. There has always been a debate about whether the right to abortion is the right to be free of pregnancy or is, rather, as many argue, the right not to be a mother, not to have a child that one doesn't want. In that case, the right to abortion is the right to have the child die. The pro-choice constitutional scholar Ronald Dworkin, in the beginning of his big book from 1993 on this subject called ''Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Rights,'' in his very opening sentence says abortion and euthanasia are choices for death, the choice to destroy the embryo or fetus.
Page 173 PREV PAGE TOP OF DOC Now, that, I understand, is not the view of many people, and not just pro-life people but also pro-choice people.
Mr. NADLER. But are they wrong?
Mr. GEORGE. Now, that is the question. Here is where I disagree with Professor Bradley and Dr. Thomas, only on the question of whether there is a dispute here. I would argue on their side of the issue as to what the current law is. But given what jurists have said in written opinions, given what the law professorate and many law professors have written in Law Review articles commenting on abortion lawand I will be happy to provide the committee, when I get back to Princeton, with copies of articles and information and citations. It is not fair to say that it is clearly established that there is no ambiguity that needs to be cleared up here about what the right to abortion is a right to.
I hope that Congressman Nadler is right, and I would argue that he is right, that it is merely the right to be free of pregnancy and not the right to have the embryo or fetus destroyed. But there are many respectable people, constitutional scholars, jurists, and others, who disagree with that not only as a matter of ethicsI have cited the ones who are in that category in my prepared remarksbut also as a matter of law.
Mr. CANADY. Well, thank you, Professor George. My time has expired, but without objection, I will have 3 additional minutes, and then we will conclude the hearing.
Dr. Cole, I want to just turn back to your testimony. In your testimony, you state that the definition contained in the bill of ''born alive'' is unrealisticI think that is the specific term you useand would ''significantly interfere with the agonizing, painful, and personal decisions that must be left to parents in consultation with their physicians.'' Now, you have also testified that you practice medicine in Missouri, and I understand the nature of your practice from your testimony.
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So I want to quote to you from section 193.015, subsection (5) of the annotated Missouri statutes, which defines ''live birth'' for purposes of Missouri lawand listen to definition that is in the statutes of Missouri and I believe has been there since about 1984. '' 'Live birth' means the complete expulsion or extraction from its mother of a fetus, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of the voluntary muscles.''
Now, I would submit to you, Dr. Cole, that that definition is almost identical to the definition of ''born alive'' found in the bill under consideration by this subcommittee today.
Now, were you aware of that definition in the law of the State where you are licensed to practice medicine when you prepared your testimony?
Mr. COLE. Yes, Chairman Canady, I was, and as I indicated in my response to some of the other questions, there has been in Missourinot in my personal practice, but in the practice at the University of Missouri at Columbiasituations where interpretation of the statute to which you refer has led to the prolongation of life support for babies who eventually expired.
Mr. CANADY. I don't understand how interpretation of the statute would have anything to do with that, a determination of what the appropriate standard of medical care is, because that is the question in those cases, is it not?
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Mr. COLE. Well, I completely agree with you that it is a standard-of-care issue. I think that the issue to which you refer now is that a statute in the State of Missouri defines how a birth certificate or a death certificate is filled out.
Mr. CANADY. But the purpose of the statute is to make clear beyond any doubt that there is a person when there is a live birth, correct? That is what the statute says.
Mr. COLE. I am not a lawyer, so I can only tell you that the interpretation, as you have described it, of that statute in the State of Missouri as I understand it in my practice is that that statute applies to infants and is used for statistical purposes to gather information about live births, neonatal deaths, et cetera.
Mr. CANADY. My time has expired. I will give myself 1 additional minute without objection.
The purpose of this law has nothing to do with statistical purposes. There is maybe some additional statute that refers to that. And I did not understand your testimony to make reference to laws such as this existing in the State of Missouri. But the fundamental point remains that this law simply determines that there is a person. The secondary question about what the appropriate standard of care is with respect to a particular person in a particular circumstanceand I understand that there can sometimes be difficult decisions to make about what the appropriate care is. But that is a separate question, and all we are attempting to establish through this law, to reaffirm through this law is that when there is a live birth, there is a person entitled to the protections of the law.
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I don't understand why that should be controversial, and I think Mr. Nadler and I have may have substantial, if not entire, common ground on this point. And I do appreciate especially the testimony of Professor George who has pointed out very clearly the threat that is being posed to this principle, which explains the reason that we are here today concerning this legislation.
Again, I want to thank all of you for your testimony. Each of you has made a very important contribution to our hearing. Your testimony has been very helpful to the subcommittee. We thank you for that, and now the subcommittee stands adjourned
Ms. WATERS. Mr. Chairman, unanimous consent to submit to the record my statement.
Mr. CANADY. Without objection, and other materials that members submit also.
[Whereupon, at 1:46 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Page 177 PREV PAGE TOP OF DOCPREPARED STATEMENT OF HON. BOB BARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. Chairman, thank you for holding a hearing on this very important issue. I am a cosponsor of and fully support H.R. 4292; legislation designed to protect the lives of infants bom alive in partial birth abortions.
In 1973 the Supreme Court essentially legalized abortion in America, in the controversial case Roe v. Wade. This monumental case forever changed the face of our nation. However, this unfortunate ruling did not legalize the disposal and disregard of the existence of real, live human beings.
Babies can survive partial birth abortions and, when they do, they suffer considerably. They are supposed to die, but, when they don't, they can live for a period of two to an unthinkable eight hours. Victims of understaffed clinics and hospitals, these children are often pushed aside as medical personnel frantically attend to the mother. They are left on counters, put in back rooms, and sometimes thrown awayalive, and completely forgotten. They die cold and alone, often unheld and untouched in their short lifespans.
I have not yet told you the truly horrifying part. Very often, these infants, bom alive, could have lived; could have lived if they had not been considered dead; could have lived if doctors had the legal backing to administer medical treatment and care for these poor souls; could have grown to live long and prosperous lives, like 23-year old Gianna Jessen, who will testify for us here today.
Ladies and Gentlemen, our nation is founded on certain fundamental rights. The right to life. The right to liberty. The right to own property. The right to exist. These infants are not being granted this right. Age does not define humanity. Born alive, whether 22 weeks or 9 months, a human being is a human being.
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H.R. 4252 serves to protect infants who are born alive. It proposes a change in the language of current law, by redefining the definition of ''alive'', to include survivors of partial-birth abortions. It would entitle born-alive infants to medical treatment and, in the process, the chance to live.
This is a very serious matter. We can no longer ignore the cries of these defenseless and very much alive babies. I urge my fellow colleagues to recognize the seriousness of this issue and support on H.R. 4292. 1 look forward to hearing from all of our witnesses. Thank you.
|Concerned Women for America (CWA),|
|Washington, DC, July 19, 2000.|
THE NEXT STEP AFTER PARTIAL-BIRTH ABORTION
BY CATHERINA HURLBURT
''My intent in every abortion I have ever done is to kill the fetus and terminate the pregnancy.''Leroy Carhart, Nebraska abortionist.(see footnote 27)
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Leroy Carhart was the defendant in this year's controversial U.S. Supreme Court decision, Stenberg v. Carhart, regarding Nebraska's partial-birth abortion ban. Sadly, the Court narrowly decided in Carhart's favor. With a 54 vote, it condoned the inhumane procedure in which the abortionist allows the entire baby to be born except for the head. He then punctures the skull and extracts the brain before discarding her. Thus, we beg the question: At what point, legally, does a baby have protection as a person?
Planned Parenthood v. Casey (1992) used the notion of ''viability,'' the point at which the child may survive outside the mother's womb, as the standard for legal protection. This causes confusion over whether a baby born alive but not considered ''viable'' deserves protection under the law. Of course, medical advancement has pushed back the point of viability even in the eight years since Casey.
With the Carhart decision, the Court further muddied the waters by putting its stamp of approval on the aborting of partially born, not just unborn, babies. ''If such ideas go unchecked,'' said Rep. Charles Canady (R-Florida), ''the end result will be legal and moral confusion as to the status of completely born infants who were marked for abortion or are on the outskirts of viability [emphasis in original].''(see footnote 28) If the baby is simply a sum of body parts, what difference is there, really, between killing a child whose head remains somewhat within her mother's body and killing a child who has completely exited her mother's body? Thus, the procedure known as ''live-birth abortion'' comes into play.
Page 180 PREV PAGE TOP OF DOCThe Procedure
A live-birth abortion involves three basic steps. First, the physician opens the cervixthe neck of the uterus that usually remains tightly closed until the time of deliveryusing either Cytotec or laminaria (little match-like sticks composed of seaweed). Cytotec is the usual choice. He inserts one 200-microgram pill or two 100-microgram pills in or near the cervix, irritating it and causing it to open.
Second, after the cervix opens, the small babyusually in its second trimesterliterally drops out of the womb. Sometimes, the baby dies in the process. However, many are born alivethus the name, ''live-birth'' abortion. In this case, the third step is letting the baby die. A nurse may hold the baby (''comfort care'') or leave her to die alone. In some cases, hospital workers have suffocated, drowned or beaten the babies to death.
Babies may also be born alive in incomplete, or ''botched,'' abortions. The confusing Casey decision implies that babies born alive are not legally protected persons if they are not viable. Interestingly, when so-called ''wanted'' babies are born prematurely, physicians make heroic efforts to save them and optimize their physical condition. However, if a born-alive child is marked for deaththe target of abortionher life has no value, by the Stenberg and Casey standards. In a modem civilization, this thinking is barbaric, to say the least, and unconstitutional, to be sure.
Other Ethical Problems
The phenomenon of infants born alive and left to die is not limited to a few isolated incidents. ''The procedure, in which physicians induce premature labor, has been an option for decades at hospitals around the country,'' reported the Chicago Tribune.(see footnote 29) Jill Stanek, a nurse at Christ Hospital in suburban Chicago, came forward in 1999 to reveal the hospital's routine infanticide. CWA of Illinois State Director Karen Hayes helped publicize the atrocity and convinced the Illinois Attorney General to investigate the hospital. Christ Hospital officials claimed doctors only used the procedure when the child had life-threatening defects. However, Jill witnessed doctors performing the procedure on babies with Down syndrome and spina bifida. The procedure outraged former U.S. Surgeon General C. Everett Koop: ''Abortion for spina bifida is not indicated unless one is committed to a practice of eugenics.''(see footnote 30)
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Further, an in-house memo from Christ Hospital's genetics program to the Obstetrics Department sought notification of all still births, premature deaths and abortions.(see footnote 31) In addition, a brochure from Advocate Health Care, Christ Hospital's parent company, announced the hospital now offers stem-cell transplants.(see footnote 32) Doubtless, with the tide in stem-cell research, the ethical and moral compromises over the lives of infants slated for abortion may surge.
It truly is a sad day in our history when lawmakers must jump through hoops to establish legally what is so obvious medically and morally: Infants possess full personhood, equally deserving legal protection. Rep. Canady introduced the ''Born-Alive Infants Protection Act of 2000,'' H.R. 4292, to do just that. It would establish, ''for purposes of federal law, an infant who is completely expelled or extracted from her mother and who is alive, is indeed a person under the law.''
In an age of vague standards and disrespect for human life, punctuated by contentious court decisions, this legislation is a significant step toward recognizing the value of all human life.
HOW TO GET AWAY WITH MURDER
BY KAREN HAYES AND WENDY WRIGHT
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''Once, I held the aborted baby in a warm blanket for the 45 minutes it took for him to die . . . The only situation that could be worse was . . . [s]ince we have no place designated to keep these babies, one had to be left to die alone in the Soiled Utility Room.'' Nurse Jill Stanek
Christ Hospital is the only hospital Jill Stanek applied to work for after graduating from nursing school. It had the best reputation in the Chicago suburbs, she believed. And she was certain that a hospital whose mission is ''rooted in our fundamental understanding of human beings as created in the image of God,'' would not possibly do abortions.
But clever names can cover a multitude of sins. Most people assume that a ''therapeutic abortion'' is a desperate procedure to save the life of a mother. To her dismay, Jill found that ''therapeutic'' and ''life of the mother'' are malleable terms when abortion is involved. At Christ Hospital, ''I have never observed a 'therapeutic' abortion in the true sense of the term,'' she stated in a letter to hospital directors. ''The abortions I have observed have been elective abortions.''
That was not her only discovery. ''I have personally witnessed two babies who have been aborted alive (and this is actually not an unusual occurrence),'' she wrote.
How could babies survive an abortion? This is not surprising when all that the doctors are doing is inducing labor. A drug is used to open the woman's cervix, then the baby falls out. Some die in labor. Others (though no one is saying how many) live. In that case, department policy is to provide ''comfort care,'' meaning the baby is held in a blanket but is not given medical attention. That is, if a nurse is available. Otherwise, the babies get stuck in a closet with the soiled linen until they die.
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The babies are between 16 and 24 weeks old. With undeveloped lungs, they will last from a few minutes to 6 or 7 hours. The baby Jill held ''spent his 45 minutes just . . . gasping.''
Hospital spokeswoman Sue Reimbold, told the Chicago Sun-Times these are ''medically indicated pregnancy terminations'' and are only performed when ''complex and critical maternal or fetal conditions threaten the life or health of the mother or developing fetus.'' Yet the first abortion Jill discovered was of a Down syndrome child. A draft guideline dated June 1, 1998 included cystic fibrosis and even the mother's mental health as justifications for abortions.
Around the time Jill's letter became public, Dr. C. Everrett Koop sent a letter to Advocate Health Care, parent company of Christ Hospital. ''It has come to my attention,'' he wrote, ''that Advocate Health Care Systems is contemplating expanding their abortion indications to include destroying the fetus because it has Spina Bifida. This is truly a barbaric outrage. Turman's Spina Bifida are treated every day in this country and become competent, innovative, and creative citizens who are both loved and loving. Abortion for Spina Bifida is not indicated unless one is committed to a practice of eugenics.''
This set the public relations machine in motion. Advocate Health Care announced a new policy would allow abortions in ''cases of rape or incest, where there is a serious threat to the life or health of the mother, or when there are lethal fetal anomalies incompatible with sustained life.'' Enough exceptions to drive any abortion through, considering that the Supreme Court has ruled ''health'' to include emotional, financial, or age. No mention was made of methods. In effect, it is business as usual.
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The scandal has brought many things to light. Dr. Michael Curtis told a reporter that live birth abortions were performed at Christ Hospital when he was in student rotation in 1982. While Christ Hospital claims to do 10 to 20 a year, Chicago's Rush-Presbyterian St. Luke's Medical Center disclosed they do about 100 each year. State Senator Patrick O'Malley resigned from Christ Hospital Governing Council partly because they ''threaten the employment of those who refuse, due to personal conviction, to participate in any abortion procedure.''
In case you missed the irony in the name, Christ Hospital is affiliated with the Evangelical Lutheran Church in America and the United Church of Christ. Both denominations gave their stamp of approval on the hospital's policies. Even Roe v Wade doesn't include denying life to a child after she is born. Yet Christ Hospital is not unique. Perhaps your local hospitals are killing babies through deliberate neglect. Want to know how to get away with murder? Call it abortion.
[Karen Hayes, Director of Concerned Women of America of Illinois, sparked investigations by the Attorney General of Illinois into Christ Hospital. Wendy Wright is Director of Communications for Concerned Women for America in Washington, D. C Concerned Women for America is the largest public policy women's organization in America, with over 500, 000 members nationwide.)
Attorney General JIM RYAN, State of Illinois,
RE: Christ Hospital, Oak Lawn, Illinois
DEAR ATTORNEY GENERAL RYAN: Please consider this letter our request that your office open an investigation into Christ Hospital's practice and method of abortion (the hospital refers to these as ''pregnancy terminations'').
I have enclosed a letter from a nurse, Jill Stanek, to the hospital dated April 23, 1999 which explains the procedure. This method often results in live births, and the abortions are being performed in the 2nd trimester of a Mother's pregnancy. These babies sometimes live from a few minutes to as long as 6 to 7 hours. Jill Stanek is currently employed as a Labor and Delivery nurse at Christ Hospital and has firsthand experience of holding one of these babies as it died and, also, has knowledge of other less humane treatment of the babies. As you see, she has sent the letter to many key hospital personnel. In addition, although death certificates are being required, it is unclear whether there are birth certificates for these children.
Advocate Health Care owns Christ Hospital and seven other hospitals in Illinois. Last Saturday, over 400 people gathered in front of Christ Hospital to join in an interfaith prayer vigil and to bring attention to this situation. Senator Patrick O'Malley attended this vigil and also arranged and attended a meeting with Advocate Health Care on Tuesday, August 31, at which I was present, to discuss their abortion policy. The questions raised in this letter were not discussed at that meeting because it was felt that we needed mom time to pursue a review of the Illinois statutes.
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We hope your investigation would include a determination as to whether the practice and method violates Illinois statutes, including, but not limited to, the Illinois Hospital Licensing Act and the Abused and Neglected Child Reporting Act.
I look forward to hearing from you.
|Karen Hayes, State DirectorIllinois,|
Mr. Richard Stock
Mrs. Virginia Johnson
Senator Patrick O'Malley
Dr. STEVEN AMBROSE, Chair, OBGYN Department,
|Mokena, IL, April 23, 1999.|
Reverend Dr. WILLIAM BAUGH, Vice President, Religion & Health,
CHRISTINA RYAN, RN, Director, Women & Infant's Health Services,
Dr. MELVIN WICHTER, Chair, Ethics Committee,
Christ Hospital & Medical Center, Oak Lawn, IL.
Page 187 PREV PAGE TOP OF DOC DEAR CHRIST HOSPITAL EXECUTIVES: When I graduated from nursing school in 1993, Christ Hospital was the only hospital that I applied at to work. I focused my attention professionally on Christ because I felt it had the best reputation medically in the south suburbs and because I was confident that no elective abortions were performed here since it is a faith based hospital. I was so sure of the latter that when I transferred to Labor & Delivery in September 1995, it never even occurred to me to ask about hospital policy on abortion. I was just certain that this wasn't an issue.
You can thus imagine my dismay when I came to work one evening to learn in report an abortion was being performed in the department. This abortion was being done because the baby had Down's Syndrome. It was being termed a ''therapeutic'' abortion. I learned that abortions of this type are performed at Christ every so often, and I have since witnessed several other abortions here. However, I have never observed a ''therapeutic'' abortion in the true sense of the term, that being to save the life of the mother. The abortions I have observed have been elective abortions, performed due to defects in the baby such as Down's or any one of a number of chromosomal abnormalities, or physical defects which have been decided to either be incompatible with life or incompatible with a ''quality'' life.
It is L&D policy that a nurse does not have to receive assignment of a patient in the process of having an abortion performed if the nurse's moral or religious belief disallows it. However, nurses such as myself who do indeed refuse to take these patients are still implicated. I have personally witnessed two babies who have been aborted alive (and this is actually not an unusual occurrence). Neither time did the mother nor father want to hold and care for the baby until s/he passed from this life. Department policy in this case is to provide comfort care to the child until S/he dies. Once, I held the aborted baby in a warm blanket for the 45 minutes it took for him to die. The other time a co-working Support Associate did the same. Can you imagine the revulsion of this? The only situation that could be worse was as an RN colleague related to me, a night when she did not have the time to personally care for one of these infants. Since we have no place designated to keep these babies, this one had to be left to die alone in the Soiled Utility Room.
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The abortion issue is huge and complicated. There are several angles I could discuss at this point in my letter, but I would like to limit my scope to comparing the Christ Hospital Mission Statement to our current abortion policy. The Mission Statement is as follows:
''The mission of Advocate Health Care is to serve the health needs of individuals, families and communities through a wholistic philosophy rooted in our fundamental understanding of human beings as created in the image of God.''
This Mission Statement is in harmony with Biblical Scripture. Probably the most poignant passage on the subject of humans being special and unique from inception is Psalm 139:1318:
''You alone created my inner being. You knitted me together inside my mother. I will give thanks to you because I have been so amazingly and miraculously made . . . My bones were not hidden from you when I was being made in secret, when I was being stilly woven in an underground workshop. Your eyes saw me when I was only a fetus. Every day of my life was recorded in your book before one of them had taken place.''
Christ Hospital bears the name of Jesus and is spiritually overseen by no less than two Christian denominations, the Lutheran and United Church of Christ faiths. I appeal to the leaders of these faiths as well as hospital management who oversee the ethical operations of Christ Hospital to change our current abortion policy.
Page 189 PREV PAGE TOP OF DOC The aforementioned aborted children may indeed have been destined to die, but I believe it is incongruent with our Mission Statement to intervene directly to take their lives. Rather, we should teach parents alternative approaches and frames of mind to bringing defective children into the world which would be consistent with our medical ethics, our Mission Statement, and our hospital's strong Judeo-Christian base. This approach would be to encourage treatment of these children as imperfect but still as special as you or I, as we are all created in the image of God. I am aware of a couple to whom abortion was recommended because of a congenital defect in their child. They chose, however, to carry their baby to term and were able to hold and love her for the 20 minutes that she lived. This is an example of the guidance a Christian hospital should give.
I cannot speak to the anguish and lifestyle upheaval parents must endure who deliver defective babies. I cannot speak to the anguish and physical pain an imperfect human being may have to endure. I cannot speak as to why some babies are born only to die. Only God can speak as to, how and why He does things in His infinite wisdom. ''Who gave humans their mouths? Who makes humans unable to talk or hear? Who gives them sight or makes them blind? It is I, the Lord!'' (Exodus 4:11) We cannot take his place.
Our Mission Statement is prominently displayed in various places throughout the hospital, one location being above our front entrance doors. I must walk through those doors each evening that I come to work. It is very difficult for me to do so at this time.
Thank you in advance for your consideration.
Yours very truly,
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|Jill L. Stanek, Registered Nurse, Labor & Delivery.|
Dr. William Adair, President of Medical Staff, Christ Hospital
Mary Francis, Perinatal Support Coordinator
Andrea Miller, RN, Manager of Clinical Operations, Women's Health
Coletta Neuens, Chief Executive, Christ Hospital
Reverend Gerald Oosterveen, Director of Pastoral Care
Sue Riegel, RN, Assistant Manager of Clinical Operations, Labor & Delivery
Carol Schneider, Chief Executive, Christ Hospital
Dr. Scott Strote, Residency Program Director, OBGYN
Ms. KAREN HAYES, State DirectorIllinois,
|Office of the Attorney General,|
|State of Illinois, September 14, 1999.|
Concerned Women for America,
Palos Heights, IL.
Re. Christ Hospital
DEAR MS. HAYES: Your letter of September 2, 1999 to Attorney General Ryan has been reviewed by our staff. We have requested the Director of the Department of Public Health to initiate an inquiry to determine the nature and circumstances surrounding certain medical procedures described as ''pregnancy terminations'' at Christ Hospital.
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The Department will keep this office advised as to the status of the investigation in order that we may determine whether any violation rations have occurred.
|Richard M. Stock, Chief of Staff.|
LAURENCE J. O'CONNELL, Ph.D., S.T.D.
|The C. Everett Koop Institute|
|Hanover, NH, September 15, 1999.|
The Park Ridge Center,
DEAR DR. O'CONNELL: It has come to my attention that Advocate Health Care Systems is contemplating expanding their abortion indications to include destroying the fetus because it has Spina Bifida. This is truly a barbaric outrage. Turman's Spina Bifida are treated every day in this country and become competent, innovative, and creative citizens who are both loved and loving. Abortion for Spina Bifida is not indicated unless one is committed to a practice of eugenics.
|C. Everett Koop, M.D., Sc.D.|
cc: Susan Davinger
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DEAR PASTOR: As you may have heard or read by now, Advocate Health Care's Board of Directors recently addressed the challenging issues related to pregnancy termination. The board has approved a new policy that sets criteria under which pregnancy terminations will be performed within Advocate facilities. Because you are a valued partner in the ministry of heating, we think it is important that you be informed directly about this new policy. We have attached a fact sheet that contains pertinent details regarding the new policy. Also, please note the following additional information:
|Advocate Health Care,|
|Oak Brook, IL, October 29, 1999.|
The performance of pregnancy terminations within Advocate Health Care will occur only at Christ Hospital and Medical Center (CHMC) and Lutheran General Hospital (LGH), except in the event of an immediate threat to the life or health of the mother. In these cases, the other six Advocate hospitals (Bethany, Good Samaritan, Good Shepherd, Ravenswood, South Suburban, and Trinity) will provide necessary emergency care. Historically, the number of pregnancy terminations performed at these six hospitals has been extremely low. CHMC and LGH will now accept appropriate referrals from these six hospitals and all other Advocate sites of care. Patients will not be expected to assume any additional financial burden as a result of this change.
The policy is consistent with the historic practice within Advocate, which has been to provide pregnancy termination services that fall within established guidelines. Advocate has never offered services for non-medically indicated pregnancy terminations. The great majority of these procedures can be perfor7ned in safe, non-hospital settings, which are readily available, at much less cost to the patient.
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The Perinatal Ethics Committees at CHMC and LGH will work together to research and identify a referral network able to provide competent and compassionate care for those patients referred outside of the Advocate system.
The termination of pregnancy is a difficult and complex policy issue, both for health care institutions and for society. As a faith-based organization, Advocate seeks to address these issues in the context of its Mission, Values, and Philosophy and to be informed by the positions of its sponsors, the Evangelical Lutheran Church in America and the United Church of Christ.
I hope you and members of your congregation will find this information helpful and informative.
ADVOCATE HEALTH CARE
|Rev. Jerry A. Wagenknecht, Senior Vice President,|
|Mission and Spiritual Care.|
PREGNANCY TERMINATION POLICY
After careful consideration, the Executive Committee of the Advocate Health Care Board of Directors approved a systemwide policy on pregnancy termination on October 11, 1999. Pertinent details regarding this new policy are noted below.
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The new policy will be implemented by no later than January 1, 2000.
Care of current patients will not be disrupted.
New patients will be subject to terms of the new policy effective immediately.
Pregnancy termination will be available under the following circumstances:
In cases of rape or incest;
When there is a threat to the life or health of the mother;
When there are lethal fetal anomalies incompatible with sustained life; and
In cases of multiple gestation (more than 3 fetuses) in which the number of fetuses threatens the survival of any fetus, with reductions to no less Um two (2) fetuses.
Advocate facilities will not provide pregnancy termination services when there are fetal anomalies but the fetus is considered viable, meaning that sustained life following birth is possible.
Examples of fetal anomalies where sustained life is possible include Down syndrome and spina bifida.
Page 195 PREV PAGE TOP OF DOC Advocate facilities will not provide non-medically indicated pregnancy termination services. (Historically, such services have not been offered.)
Pregnancy termination services will be offered only at Christ Hospital and Medical Center and Lutheran General Hospital.
These are the two Advocate facilities with the most comprehensive perinatal capabilities to meet the needs of patients with high-risk pregnancies.
Patients at other Advocate hospitals who may require pregnancy termination services will be offered comprehensive care via referral to Christ Hospital or Lutheran General Hospital, where they will have access to the highest level of diagnostic and therapeutic services available within the system.
A perinatal ethics committee composed of seven different disciplines will review all cases and the committee must approve each case before a pregnancy termination can be performed. Christ Hospital and Lutheran General Hospital will each have their own perinatal ethics committees. Disciplines that must be included on the committees are:
A representative of the medical staff; an ethicist; a staff member of the office of Mission and Spiritual Care (formerly Religion and Health); a nurse; a social worker, an Advocate lawyer, and a member of the hospital Governing Council
All cases determined to be clinically appropriate but which fall outside Advocate Health Care Guidelines for Pregnancy Termination will be referred to a facility outside the system by the attending physician.
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The Perinatal Ethics Committees at Advocate sites authorized to perform pregnancy terminations will establish and maintain a common referral system and oversee the referral process to assure continuity of competent and compassionate care.
Counseling is mandatory in all cases where procedures are performed within the Advocate system.
All women referred outside the system for pregnancy terminations will also be offered counseling both before and after the procedure.
As a faith-based organization, Advocate Health Care seeks to address these issues in the context of its Mission, Values and Philosophy and to be informed by the positions of its sponsoring bodies, the Evangelical Lutheran Church in America and the United Church of Christ.
We believe that any pregnancy termination decision is fraught with ambiguity and ambivalence and that the full consequences of the decision can never be fully known at the time it is made. Nevertheless, we affirm the right of each individual to make such a choice. We also affirm each individual's responsibility to weigh that decision carefully in light of personal faith, values and moral commitments.
Copyright 1999 Chicago Sun-Times, Inc.
Page 197 PREV PAGE TOP OF DOCSeptember 29, 1999, WEDNESDAY, Late Sports Final Edition
SECTION: EDITORIAL; Pg. 49
HEADLINE: A new low in heartlessness
BYLINE: Dennis Byrne
The argument that abortion doesn't kill a ''person'' centers on the assertion that a fetus isn't a person until it is born.
So what do you call an abortion procedure in which the fetus is born alive, then is left to die without medical care? Infanticide? Murder?
Most people would recoil at just the thought of such a gruesome, uncaring procedure, but it is practiced at at least one Chicago suburban hospital. When I called Christ Hospital and Medical Center in Oak Lawn, I frankly expected a denial that it uses the procedure, but instead a spokeswoman explained it is used for ''a variety of second-trimester'' abortions when the fetus has not yet reached viability. That's up to 23 weeks of life, when a fetus is considered not yet developed enough to survive on its own.
Instead of medical care, the child is provided ''comfort care,'' wrapped in a blanket and held when possible. The procedure is chosen by parents and doctors instead of another method in which the fetus is ''terminated'' within the womb by, for example, injection with a chemical that stops the heart. Under Christ Hospital's procedure, which the spokeswoman said is used at some other area hospitals, the abortion is induced with prostaglandin, a drug that relaxes the cervix and allows for the fetus to be born.
Page 198 PREV PAGE TOP OF DOC Pro-life advocates have reacted with incredulity, calling the procedure ''live birth abortions.'' They wonder why, if a death certificate is required, a birth certificate isn't. They wonder how such a brutal procedure can be used at a faith-based hospital named after Christ. One hospital nurse has complained that babies are sometimes are left to struggle on their own for up six or seven hours until death frees them from their torment.
She said a newborn, with no one around to hold it, once was left to die in a soiled linen closeta charge the hospital denies. The hospital says none of the abortions are ''elective,'' but are done only to protect the life or health of the mother or when the fetus is nonviable due to extreme prematurity or lethal abnormalities. The nurse, Jill Stanek, says she has seen some elective abortions done on newborns whose physical or mental defects are deemed incompatible only with ''quality of life.''
Pro-life advocates have picketed the hospital. Karen Hayes, Illinois state director of Concerned Women for America, has asked Attorney General Jim Ryan to determine whether the practice violates the Illinois Hospital Licensing Act and the Abused and Neglected Child Reporting Act. Ryan in turn asked the Department of Public Health to conduct an inquiry into the practice. A Health Department spokesman said the law prohibits them from discussing the matter until a new law takes effect Jan. 1.
Frankly, I wonder whether the procedure is any more brutal than other abortion procedures, involving the cutting or poisoning of the fetus before it is born. The fetus, according to studies, can feel pain. Those who consider themselves compassionate ought to be appalled at the idea that any deathinside or outside the wombis a suitable, civilized solution.
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But the procedure itself raises deeper questions. First, there's the legality. It should be up to the attorney general and state's attorney to determine whether the procedure is infanticide. Read Roe v. Wade upside down and sideways, and I find nothing in it that legitimizes the killing of a born child. If the law is unclear, the Legislature should make it clear.
Looming larger is the moral question. Partial-birth abortions supposedly are acceptable because a small part of the child still remains in the birth canal, and thus is considered unborn when it is killed. The Christ Hospital case now makes it clear that legal rights and protections don't even begin with birth, as many pro-choice advocates have staunchly argued. That even a live, born human being has no right to life because someone else has decided its chances at life are slim. Or that its life won't be worth living.
My only question to them is: To what hell is this leading us?
Copyright 1999 Chicago Sun-Times, Inc.
September 29, 1999, WEDNESDAY
SECTION: NEWS; Pg. 26
HEADLINE: Therapeutic abortion probe
SUBHEAD: Christ Hospital targeted in state investigation
BYLINE: BY MOLLY SULLIVAN
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The Illinois Department of Public Health has launched an investigation to determine whether therapeutic abortions are being handled properly at Christ Hospital in Oak Lawn.
The move comes after a labor and delivery nurse at Christ objected to the procedure and scores of abortion opponents sent letters to the Illinois attorney general's office and the Department of Public Health asking for an investigation.
A health department spokesman said he could not comment about the matter, but a hospital spokeswoman confirmed that health department officials visited Christ last Thursday to review policies and interview staff.
While hospital officials are certain they will get a clean bill of health, anti-abortion activists are planning a prayer vigil outside Christ on Saturdaythe third in the last six weeksto protest the procedure.
''We want them to stop this,'' said Karen Hayes of south suburban Palos Heights who is state director of Concerned Women for America, an anti-abortion women's organization.
''We're asking our community hospital in a very pro-life community to reconsider their position.''
The therapeutic abortions, called ''medically indicated pregnancy terminations'' at Christ, are done between 10 and 20 times a year, hospital spokeswoman Sue Reimbold said. They are performed between the 16th and 23rd weeks of pregnancy.
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During the procedure, labor is induced and the fetus is delivered, sometimes still alive. It is given ''comfort care,'' Reimbold said, and held by the mother or a nurse until it dies.
Medical experts said most of the fetuses delivered this way die during delivery, but the others usually live no more than a few hours.
Reimbold said these are not elective abortions and are performed only ''when the patient and her physician have determined that complex and critical maternal or fetal conditions threaten the life or health of the mother or developing fetus.''
That usually means fetuses with genetic anomalies so severe that they would not be viable outside the womb.
A survey of several of the city's major medical centers found they also perform the procedure. Some perform far fewer than Christ, but others, such as Rush-Presbyterian St. Luke's Medical Center, do about 100 each year, according to Dr. John Weitzner, a Rush obstetrician and gynecologist who performs the procedure.
State health officials said the procedure is included in the yearly tally of all abortions performed in Illinois. Copyright 1999 Chicago Tribune Company
Page 202 PREV PAGE TOP OF DOCChicago Tribune
September 29, 1999 Wednesday, CHICAGO
HEADLINE: Rare abortions by induced labor probed by state
BYLINE: By Jeremy Manier, Tribune Staff Writer.
A long-standing but rarely used abortion procedure that can result in fetuses surviving outside the womb for an hour or more has spurred a state inquiry into abortion practices at Christ Hospital and Medical Center in Oak Lawn, in the wake of complaints by anti-abortion groups.
Christ Hospital officials said investigators are examining the care of such fetuses to see if state laws or regulations are being violated. In the most extreme case, a fetus survived some six hours after delivery.
The procedure, in which physicians induce premature labor, has been an option for decades at hospitals around the countryincluding several in Chicagowhen the fetus has a severe genetic defect or the mother's life is in danger.
But complaints by a delivery ward nurse at Christ and by anti-abortion groups earlier this month were enough for Atty. Gen. Jim Ryan's office to ask the Illinois Department of Public Health to perform a review of the hospital.
Officials at Christ said the procedure is perfectly legal and is used at the hospital only when doctors determine the fetus has serious problems, such as lack of a brain, that would prevent long-term survival. They said many couples faced with wrenching choices opt for a therapeutic abortion rather than wait for a miscarriage or the natural birth of a short-lived childoptions that can bring medical and emotional costs.
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In cases when the couple choose premature induced labor, doctors at Christ said they prefer not to deliver drugs that would kill the fetus inside the wombas most centers dobecause doing so would force them to play a more active role in ending a human life.
Yet performing an abortion on a fetus that may survive for even a short time after delivery raises ethical concerns that are absent in the first months of gestation, said George Annas, a professor of health law at the Boston University School of Public Health.
''Once a fetus is born, it's no longer a fetus, it's a child,'' Annas said. ''And you have to treat it that way.''
The Illinois Department of Public Health visited the hospital late last week to review abortion procedures in the wake of complaints by Jill Stanek, a delivery ward nurse.
Conclusions from the ongoing review will be sent to the attorney general's office and the federal Health Care Financing Administration, according to state officials.
Hospital officials said that investigators gathered information concerning sanitary conditions in the ward and the quality of care given to aborted fetuses before they died.
Doctors at Illinois Masonic Medical Center try to avoid the dilemma of what to do with aborted fetuses that may survive. After the 20th week of gestation, doctors there give an injection of potassium chloride or some other substance that stops the fetus' heart, said Dr. Charles Strom, director of medical genetics at Illinois Masonic.
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''Our feeling is that if we're doing a pregnancy termination, we make sure the fetus demises in utero,'' Strom said.
One of the complications, Strom said, is that ultrasound tests have grown more sensitive in recent years, picking up signs of defects that might otherwise have gone unnoticed.
Yet even advanced ultrasound cannot detect some problems until relatively late in a pregnancy, Strom said.
By the time physicians can confirm the outcome through amniocentesis and genetic tests, the fetus may already be in the 22nd week of gestationjust two weeks short of the point when many hospitals will try to save a premature baby.
''For most parents who get in that situation, it's a completely unexpected problem,'' Strom said.
At Christ, where doctors perform about 20 labor induction abortions each year, nurses give ''comfort care'' to babies who survive labor. Stanek, who describes herself as pro-life, said she once held a baby boy slightly larger than her hand who survived for about 45 minutes.
''Their skin is so thin you can see the heart beating through their chest,'' Stanek said. ''It's not like they kick a lot and fight for air. They're weak.''
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In some cases, Stanek said, parents name and even baptize the premature baby.
Dr. John Weitzner, an attending physician in obstetrics and gynecology at Rush-Presbyterian-St. Luke's Medical Center, said he does not give heart-stopping drugs in such abortions because they are not necessary for the health of the mother.
''You get into a gray zone when the baby is born with signs of life,'' said Weitzner, who estimates his unit performs about 100 labor-induction abortions each year. ''By giving a potassium chloride injection, you avoid the controversy. The question is, is there any medical advantage if you're just doing it to prevent the controversy?''
Administering such drugs before labor can bring other ethical problems, Annas said, especially if there's a chance the fetus could live outside the womb.
Aborting a viable fetus is against the law in most states unless the mother's life or health is in danger.
''If you're not sure, you can't do it,'' Annas said.
Labor induction accounts for just one-tenth of one percent of all abortions, according to the Centers for Disease Control and Prevention.
Experts say most centers that use the technique deliver drugs that kill the fetus in uteroincluding Women's Health Care Services in Wichita, Kan., a national center for second and third trimester abortions.
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Maureen Britell of Washington, D.C., had a labor induction abortion five years ago after she learned in the 25th week of pregnancy that her fetus had no brain. Although her doctors did not give drugs to kill the fetus, her baby girl died after getting lodged in the birth canal.
Britell, now director of government relations for the National Abortion Federation, said the choice was a difficult one.
''One of our options was to start the grieving process early by terminating the pregnancy,'' said Britell, a practicing Roman Catholic. ''After counseling with our priest, we decided that would be best for us.
''To a certain extent, you're allowing nature to take its course. But this allowed us the opportunity to push the clock forward.''
Many religious abortion opponents say they are offended that any abortions are performed at a place called Christ Hospital. The hospital is affiliated with the United Church of Christ and the Evangelical Lutheran Church in Americaboth of which have a permissive view toward therapeutic abortions, hospital officials said.
Abortion opponents have been holding prayer vigils at the hospital for months, calling for an end to all therapeutic abortions there. One of the protesters has been state Sen. Patrick O'Malley (RPalos Park), who sits on the hospital's local governing council.
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''I just don't think we're in a position to play God,'' O'Malley said in an interview. Christ Hospital limits abortions
Page 7, Metro Southwest, Thursday, October 14, 1999
By Jeremy Manier, Tribune Staff Writer
Doctors in the health care network that includes Christ Hospital and Medical Center in Oak Lawn will no longer perform abortions on fetuses with nonlethal, birth defects, said officials of Advocate Health Care, the hospital's parent, on Wednesday. The move follows months of protests against the hospital by anti-abortion groups.
The new policy means women cannot get abortions through Advocate if their fetus' only defect is Down syndrome or spina bifida, which are not necessarily fatal. Advocate still will provide abortions in cases of rape or incest, when the mother's life or health is in danger, or when the fetus has severe defects that would prevent survival.
The move did not satisfy some abortion opponents, who said they are offended that any abortions occur at a place called Christ Hospital. The policy also does not stop the hospital's use of a controversial labor-induction abortion procedure that sometimes results in fetuses surviving outside the womb for an hour or more.
Page 208 PREV PAGE TOP OF DOC ''This policy is still distressing and disappointing,'' said Karen Hayes, Illinois director of Concerned Women for America, an anti-abortion group.
Under the new policy, abortions in the Advocate system will be performed only at Christ and at Lutheran General Hospital in Park Ridge.
(Footnote 1 return)
See ''Abortion and Moral Beliefs: A Survey of American Opinion,'' Washington, D.C., February 28, 1991, p. 38. The study was conducted in the field by the Gallup organization, and commissioned by Americans United for Life, a pro-life group. But the survey was designed by Profs. James Davis Hunter (University of Virginia), Carl Bowman (Bridgewater College), Robert Wuthnow (Princeton). And more recently, see CNN/USA/Gallup poll: April 30May 2, 1999.
(Footnote 2 return)
440 F. Supp. 535, at 539 (1977).
(Footnote 3 return)
462 U.S. 476, at 485, n. 7 (1983).
(Footnote 4 return)
Anders v. Floyd, 440 U.S. 445 (1979); emphasis added.
(Footnote 5 return)
See ''Abortion Babies 'Should be Left to Die,' '' by Angella Johnson, African New Service, March 17, 1997. One female doctor declared that the directive was ''inhuman and against all my principles.'' Other reports suggested that as many as 50 per cent of the nurses and ''health workers'' in the country would refuse to comply.
(Footnote 6 return)
Slip opinion, Section I B.
(Footnote 7 return)
6 Wheaton 264, at 384.
(Footnote 8 return)
John Locke, Second Treatise on Civil Government, Sec. 143.
(Footnote 9 return)
Lincoln, Message to Congress (December 1, 1862), in The Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), Vol. V, p. 537.
(Footnote 10 return)
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 all 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.
(Footnote 11 return)
The proposed Act provides the following:
(Footnote 12 return)
Civil liability for injury to a fetus is now well-established legally, and today virtually all jurisdictions recognize tort claims for prenatal injuries if the child is subsequently born alive. Dawn Johnsen, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 Yale L.J. 577, 599 (1986). In addition, some states have now expanded their wrongful death statutes to include damages to the fetus even if it is not subsequently born alive.
(Footnote 13 return)
28 U.S.C. §1346(b), 26712680. See also Henry Cohen, Federal Tort Claims Act: Current Legislative and Judicial Issues, CRS Report 95717A (1996).
(Footnote 14 return)
The section of the FTCA which establishes the liability of the United States, 28 U.S.C. §2674, provides that ''[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.''
(Footnote 15 return)
28 U.S.C. §1346(b).
(Footnote 16 return)
Time constraints have prevented us from considering the tax implications arising from the receipt of proceeds by those who are ''born alive.''
(Footnote 17 return)
Mary Lynn Kim, Hughes v. State: The ''Born Alive'' Rule Dies a Timely Death, 30 Tulsa L.J. 539, 553554 (1995). However, some state courts have provided that damage inflicted on a fetus in utero is sufficient to support a homicide charge even without a live birth. See, e.g., Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994).
(Footnote 18 return)
Mary Lynn Kim, supra note 8, at 540.
(Footnote 19 return)
See, e.g., Iowa Code Ann. §707.7 (1993).
(Footnote 20 return)
See, e.g., Hughes v. State, 868 P.2d 730, 737 (Okla. Crim. App. 1994)(J. Lumpkin, dissenting)(fetus born brain dead, but with an extremely low heart beat),
(Footnote 21 return)
See 18 U.S.C. §1111 (murder of a ''human being'') and 18 U.S.C. §1112 (manslaughter of a ''human being.'') These prohibitions only apply on the high seas, the waters of the United States (excluding state waters), in any vessel belonging in whole or in part to the United States or any citizen or United States corporation, on lands where the United States has exclusive or concurrent jurisdiction thereof (e.g., Indian tribal lands), certain guano islands, in aircraft operating over United States waters and the high seas and belonging to the United States or to United States citizens or corporations, space vehicles, places outside the jurisdiction of any nation with respect to an offense by or against a national of the United States and certain foreign vessels. 18 U.S.C. §7.
(Footnote 22 return)
United States v. Spencer, 839 F.2d 1341 (9th Cir., 1988), cert. den., 487 U.S. 1238 (1988).
(Footnote 23 return)
Black's Law Dictionary 74 (6th ed. 1990).
(Footnote 24 return)
Stephanie McCavitt, The ''Born Alive'' Rule: A Proposed Change to the New York Law Based on Modern Medical Technology, 36 N.Y.L. Sch. L. Rev. 609, 611 (1991).
(Footnote 25 return)
Id. at 61434.
(Footnote 26 return)
Id. at 611.
(Footnote 27 return)
Carhart v. Stenberg, U.S. District Court for the District of Nebraska, 14 August 1997.
(Footnote 28 return)
Charles T. Canady press release, 17 July 2000.
(Footnote 29 return)
Jeremy Manier, ''Rare Abortions by induced Labor Probed by State,'' Chicago Tribune, 29 September 1999.
(Footnote 30 return)
Letter from C. Everett Koop to Advocate Health Care, Christ Hospital's parent company, 15 September 1999.
(Footnote 31 return)
Dan Zanoza, ''Christ Hospital Memo Links Facility with Fetal Research,'' City News, Inc., 8 October 1999.
(Footnote 32 return)