Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, September 23, 2008

NRLC on Kmiec on Obama

Doug Johnson, legislative director of the National Right to Life Committee, responds to Doug Kmiec's defense of Barack Obama's opposition to the Born Alive Act:

As legislative director for National Right to Life, I have been closely attentive to the Born-Alive Infants Protection legislation since its inception.  The material on this subject in the Kmiec book contains so many misstatements regarding the Born-Alive Infant Protection bills, laced together with non sequiturs, that it is difficult to know where to begin.

Let's keep in mind that the Illinois Born-Alive Infants Protection Act (BAIPA), to which Obama led the opposition in the Illinois state Senate, was always very similar to the federal BAIPA on which it was modeled.  Indeed, the state BAIPA that Barack Obama killed in the committee he chaired on March 13, 2003, was virtually identical to the federal version (which had already been enacted into law in 2002).  The congressional bill ensured that all humans who were born alive were regarded as legal persons for federal law purposes, and the state bill would have done the same thing for state law purposes.  For the most part, the same legal and policy arguments were applicable (or inapplicable) to both.
Both the state and federal bills always contained the same definition of what it meant to be a "born alive" human.  The definition applies the term to any human who has achieved "the complete expulsion or extraction from" his or her mother and who thereafter "breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles . . . regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.”
In his book, Kmiec suggests that this definition was a great departure from previous law, writing,  "From the time of the ancient common law, 'born alive' has meant live birth at or near the end of a full term pregnancy with a reasonable prospect of survival."  In other words, in Kmiec's understanding, if there is not a reasonable prospect of permanent survival, then by definition, no human has been "born alive."
This is a startling assertion.  If it were true, it would have alarming implications.  Humans are often born alive a month or more before they reach the point where such "sustained survival" –- that is, long-term survival –- is likely or possible (which is often called the point of "viability") -- a point that begins at about 23 weeks.  In induced-labor abortions, labor is deliberately induced as an abortion method, and live births are not uncommon.  For example, in testimony before the Illinois Senate Judiciary Committee on March 27, 2001, nurse Jill Stanek said: "It is not uncommon for a live aborted babies to linger for an hour or two or even longer. At Christ Hospital one of these babies once lived for almost an entire eight-hour shift. Last year alone, of the 13 babies that I am aware of who were aborted at Christ Hospital, at least four lived between 1-1/2 to 3 hours, two boys and two girls."
The September 2000 report of the U.S. House of Representatives' Judiciary Committee on the federal BAIPA (H. Rept. 106-835) summarized additional testimony regarding this practice:
Two nurses from the hospital's delivery ward, Jill Stanek and Allison Baker (who is no longer employed by the hospital), testified before the Subcommittee on the Constitution that physicians at Christ Hospital have performed numerous ‘induced labor’ or ‘live-birth’ abortions, a procedure in which physicians use drugs to induce premature labor and deliver unborn children, many of whom are still alive, and then simply allow those who are born alive to die. . . . According to the testimony of Mrs. Stanek and Mrs. Baker . . . physicians at Christ Hospital have used the procedure to abort healthy infants and infants with non-fatal deformities . . . Many of these babies have lived for hours after birth, with no efforts made to determine if any of them could have survived with appropriate medical assistance. The nurses also witnessed hospital staff taking many of these live-born babies into a ‘soiled utility room’ where the babies would remain until death. Comfort care, the nurses say, was not provided consistently." (see pages 8-9 of H. Rept. 106-835).
One example given by Mrs. Stanek was that an aborted baby "was left to die on the counter of the Soiled Utility Room wrapped in a disposable towel. This baby was accidentally thrown in the garbage, and when they later were going through the trash to find the baby, the baby fell out of the towel and on to the floor." (Id. at 9). Mrs. Baker testified that she "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."  Yet, since the particular babies described in these passages (unlike some other abortion survivors) did not possess lungs sufficiently developed for permanent survival, under the Kmiec doctrine, they were never really "born alive" at all. 
Here is a hypothetical scenario that illustrates some of the troubling implications of such a doctrine, (This is merely a hypothetical for the purpose of illustration, not a description of an actual case.)  Hypothetical:  In an induced-labor abortion, at 21 weeks gestation, a human is born alive. In this particular case, it appears unlikely that the newborn will survive for more than six hours. However, after one hour the abortion doctor, who has another appointment, simply picks up a hammer and brings it down on the baby’s skull.
Under the Kmiec doctrine, this could hardly be a homicide -- because under the Kmiec doctrine, there has been nobody "born alive" in this scenario.  This dovetails neatly with the theory that Obama himself articulated for opposing the state BAIPA in 2001.  He said that the bill was probably unconstitutional (under his vision of Roe v. Wade) because it defined a "previable fetus" as a person -- even though that definition only applied to humans who were entirely outside their mothers, and alive.  Fortunately, Kmiec is wrong about the antecedents to the BAIPA.  Contrary to Kmiec's assertion, the BAIPAs proposed to codify a definition of "born alive" that was quite traditional, and that was already the law in many states.  I quote from the report on the federal Born-Alive Infants Protection Act of 2001 (H.R. 2175), Judiciary Committee, U.S. House of Representatives Report 107-186, August 2, 2001, pp. 7-8:

The question of whether a live birth has occurred does not, however, depend upon whether an infant is sufficiently developed for sustained survival.  The definition of ‘‘born alive’’ contained in H.R. 2175 [the federal BAIPA] was derived from a model definition of ‘‘live birth’’ that was promulgated by the World Health Organization in 1950 and is, with minor variations, currently codified in thirty States and the District of Columbia.  The Illinois statute provides a model of this definition:

Live birth means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which after such separation breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.

Pennsylvania’s statute includes a similar but somewhat broader definition: "Live birth means the expulsion or extraction from its mother of a product of conception, irrespective of the period of gestation, which shows any evidence of life at any moment after expulsion or extraction."
The reason these statutes do not define a live birth as dependent upon the infant’s gestational age is fairly obvious. Many infants are born alive at 20 to 22 weeks and survive for hours, even though their lung capacity typically does not permit sustained survival. Under the prevailing standards of medical care, such infants are understood to be born-alive persons and are treated as such, even though they may only live for a short time. They are, for example, treated humanely, given comfort care, and issued a death certificate. And an individual could not escape criminal prosecution for entering a neonatal intensive care unit and murdering one of these infants simply because the infant will only survive for a short time.
I have omitted the footnotes, one of which lists the 30 states that had, at that time, definitions of "live birth" that were the same or nearly the same as that incorporated into the federal and Illinois BAIPAs. 
Allow me to now address Kmiec's central claim: "In essence, the act imposes on the birth process the over-extension of life support to a dying patient without any reasoned chance of survival."  There is no basis for this claim, and the House Judiciary Committee report on the federal BAIPA refuted it directly as follows: 
[This legislation] would not mandate medical treatment where none is currently indicated. While there is debate about whether or not to aggressively treat premature infants below a certain birth weight, this is a dispute about medical efficacy, not regarding the legal status of the patient. That is, the standard of medical care applicable in a given situation involving a premature infant is not determined by asking whether that infant is a person. Medical authorities who argue that treatment below a given birth weight is futile are not arguing that these low-birth weight infants are non-persons, only that providing treatment in those circumstances is not warranted under the applicable standard of medical care. H.R. 2175 [the federal BAIPA] would not affect the applicable standard of care, but would only insure that all born-alive infants—regardless of their age and regardless of the circumstances of their birth—are treated as persons for purposes of Federal law.
Thus, with the federal BAIPA in force, in any facility within the reach of federal law, it would not be defensible to provide comfort care and pain relief to a very premature baby who had been born by spontaneous premature labor, while sending a baby at the same stage of development who was born alive after an abortion to a soiled utility closet.  But there is nothing in the federal law, and there was nothing in the virtually identical Illinois bill, to require medically futile measures for either baby.  Under the BAIPA both babies have the same human status and they must be afforded the same human rights.
Kmiec also asserts that the Illinois state BAIPA was "very likely unconstitutional in most of its applications."  Kmiec offers no support for this statement, nor is he likely to produce any persuasive support for it.  The federal BAIPA has been in law for six years, and it is virtually identical to the state bill that Obama killed.  The federal bill has been cited by federal agencies and by at least one federal court.  I am unaware of any party or group that has suggested that it is unconstitutional in any specific application, much less "unconstitutional in most of its applications."
Kmiec, like Obama, seems content to regard the living but "previable" human infant as a legal non-person.  However, Kmiec says he nevertheless would have voted for the Illinois BAIPA on the chance that it might have helped in what he asserts to be the "rare possibility" of the live birth, during an abortion, of an infant "in viable condition."  However, Kmiec asserts, "there are general in just about every state -- including Illinois -- already protecting viable, premature infants from harm." 
This is apparently a reference to an old Illinois law (720 ILCS 510.6), which Obama has recently been trying to hide behind.  That is an extremely weak law, which comes into play only when the abortionist himself declares in advance that the human being aborted enjoys "a reasonable likelihood of sustained survival . . . outside the womb," in which case a second physician is supposed to be on hand to care for the child.  The law has no application all to babies in the 18-22 week range, although they may often be born alive. 

Even with respect to babies who are certainly past the point of “viability,” this law has some expansive loopholes, and any likelihood of enforcement was rendered even more remote by a consent decree issued by a federal court which nullified some of the key definitions.  During the time Obama was in the state senate, legislation was proposed to tighten up this law to make it more likely that post-viable abortion survivors would get the help they need.  Obama opposed that bill, too, saying that “it’s important to understand that this issue ultimately is about abortion and not live births." 

It is not surprising that he thought so.  For Obama, "the right to abortion" trumps every other consideration.  The position that Obama embraced on the BAIPA language was rejected by the U.S. House of Representatives by a vote of 380-15 in 2000, rejected by the Senate by a vote of 98-0 in 2001, and rejected by both houses without a dissenting in 2002.  Kmiec’s imaginative re-interpretation of the legislation is the latest in a series of contradictory and implausible attempts to throw protective smokescreens over what Obama did and the reasons he gave at the time for doing it.


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