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.

Friday, April 30, 2010


Recently, in Italy, a 22-weeks-old infant who had survived an attempted abortion -- the reason for the abortion, apparently, was the child's cleft-palate -- was found hidden but alive by a hospital chaplain, 20 hours after birth.  The child died the next day.  The full story is here.

. . . Eugenia Roccella, the under-secretary of state in the health department, on Wednesday night promised a government inquiry into the incident.

“The minister of health will send inspectors to the hospital in Rossano Calabro to investigate what actually happened, and to see if the Law 194, which prohibits abortion when there is a possibility of the foetus living separately from the mother, and permits it only when the continuation of the pregnancy would result in life-threatening danger to the mother.”

She said that if initial information is correct, “this would be a case of deliberate abandonment of a seriously premature neonate, possibly also with some form of disability, an act contrary to any sense of human compassion but also of any accepted professional medical practice".

She added: “We must remember that a baby, once born, is an Italian citizen equal to all the others, and is entitled to all fundamental rights, including the right to health and therefore to be given full support.” . . .

My sense of the abortion debate in this country is that many would disagree with the claims that a child who is born alive, despite (or in the course of) an abortion attempt, is -- without regard to the mother's wishes -- "entitled to all fundamental rights", including a right to life-sustaining medical care.  Am I wrong?


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I think you're probably right-many would deny it, though not most. Though you'd have a tough time getting them to answer the question. I think it's one of those ugly truths many have to deny to maintain their broader position, but would resist saying out loud for how terrible it sounds.

Posted by: John | Apr 30, 2010 2:52:57 PM

An interesting set of cases to examine is the set of cases falling under the "Texas futile care law" as applied to children. In these one sees quite vigorous disagreement about whether living children are or are not entitled to life sustaining medical care. Much of the disagreement is between pro-life groups that have lined up on opposing sides of the debate.

Posted by: Fritz Warfield | Apr 30, 2010 9:53:59 PM

The President of the United States voted against a law giving a child those rights. So yeah, there is disagreement.

Posted by: Matt Bowman | Apr 30, 2010 11:56:08 PM

I am not sure why this disturbing incident in Italy should be an occasion to speculate on what "many people would disagree with" in the United States. In any case, I'd just point out that the Federal Born Alive Infant Protection Act easily passed both houses of congress in 2002, with a voice vote in the House and unanimous consent in the Senate.

Contrary to what Matt Bowman says, the president of the United States did not vote against a law giving a surviving child of a botched abortion the right to life-saving care. An Illinois State Senator named Barack Obama opposed the Illinois version of the Born Alive Infant Protection Act, but in Illinois, *viable* infants born alive were already protected by state law. It makes no sense to give life-saving care to a nonviable infant. The issue was allegations (never substantiated) of mistreatment of born-alive infants who had no chance of survival. It was Obama's position that if they were being mistreated, a compromise law could be passed that mandated a standard of care for nonviable infants born alive. Physicians were already required to provide life-saving care to viable infants.

Details of the case in Italy are still not clear to me. In various conflicting accounts, I have read that the infant was discovered alive 4 hours, 20 hours, and 2 days after the abortion. Hopefully the investigation will come up with some answers.

As someone who contributes to the charity The Smile Train, I find it distressing that someone chose to abort a 22-week fetus because of a cleft lip and palate (if true). Here is what The Smile Train does, as stated on the "About Us" page of their web site:

This is our mission:
-To provide free cleft surgery for millions of poor children in developing countries.
-To provide free cleft-related training for doctors and medical professionals.
Until there are no more children who need help and we have completely
eradicated the problem of clefts.

Posted by: David Nickol | May 1, 2010 2:27:22 PM

David Nickol's continuing defense of the indefensible is becoming less and less comprehensible. He admits that the President "opposed the Illinois version of the Born Alive Infant Protection Act", and he merely gives him an excuse. His excuse is not true. Even if it were true, there is no excuse for opposing the law, and David would be speaking falsehood when he says the President did not vote against it. He did vote against it. But the excuse is not true. You can read the President's reason for opposing the law for yourself: he said that protecting born infants infringed on Roe, "the equal protection clause or the other elements in the Constitution". http://www.ilga.gov/senate/transcripts/strans92/ST033001.pdf#page=85 (page 86) In other words, he believes that the Roe "right" to abortion extends to born infants, at least in some cases. His concept of the Constitutional right to abortion mandates non-personhood to at leasat some infants even after birth. (This is also presumably what he means when he says his judicial appointments must respect women's constitutional rights).

David's argument has been discredited time and again. It's not true that the bill Obama voted against as a state senator was only for nonviable newborns surviving abortions and thus was not such a bad thing to oppose. First, even if a newborn child is going to die, he or she is entitled at least to palliative care, which this born-alive bill would have required. Second, the claim of Obama and his supporters that Illinois law already protected viable babies surviving abortions is dubious at best. See Doug Johnson's analysis, here: http://www.nrlc.org/obamabaipa/WhitePaperAugust282008.html
Relevant excerpt:
Assertion: The BAIPA was unnecessary, because "Illinois law already stated that in the unlikely case that an abortion would cause a live birth, a doctor should ‘provide immediate medical care for any child born alive as a result of the abortion.’" (August 19, 2008, Obama campaign document)
Response: Obama explained in 2001, and has never recanted, that he opposed the Illinois BAIPA because it declared a "previable fetus" to be a legal person – even though the bill only did so if the baby had achieved "complete expulsion or extraction from its mother." (Obama’s statements are quoted verbatim further on in this white paper.) The old Illinois law in question (720 ILCS 510.6) covered only situations where an abortionist declares before the abortion that there was "a reasonable likelihood of sustained survival of the fetus outside the womb." 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"). The old Illinois law has no bearing on many of the induced-labor abortions about which the nurses testified before the committees in Congress and the Illinois state legislature, because many of them were performed on unborn humans who were capable of being born alive, and who often were born alive, but who were not old enough to have a "reasonable likelihood of sustained survival . . . outside the womb." [end excerpt]

Even with respect to "viable" infants, the old law is ridden with loopholes. It does not apply except when the abortionist himself declares that there is "a reasonable likelihood of sustained survival of the fetus outside the womb." This already-weak law was further weakened by a lengthy consent decree issued by a federal court in 1993, which among other things permanently prohibits authorities from enforcing the law’s definitions of "born alive," "live born," and "live birth." On April 4, 2002, Obama spoke on the Illinois Senate floor against a bill (SB 1663 – which was not the BAIPA) that would have more strictly defined the circumstances under which the presence of a second physician (to care for a live-born baby) would be required; Obama argued that this would "burden the original decision of the woman and the physician to induce labor and perform an abortion . . . [I]t’s important to understand that this issue ultimately is about abortion and not live births."

The September 2000 committee report of the U.S. House of Representatives' Judiciary Committee on the federal BAIPA (H. Rept. 106-835) summarized some of the testimony that indicated why such legislation (federal and state) was necessary:

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." (Id. at 10).

In testimony by Stanek before the Illinois Senate Judiciary Committee, on March 27, 2001, she 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 House Judiciary Committee members of both parties apparently found the nurses’ testimony in 2000 to be compelling (although it should be noted that the committee’s report also provides ample additional justifications for enactment of the BAIPA); the bill was approved by the committee 22-1, and by the full House of Representatives 380-15, notwithstanding the vehement objection of the National Abortion Rights Action League. This was the original, two-sentence version of the legislation, and did not contain the "neutrality clause" that Obama later said was so important.

The BAIPAs recognize pre-viable (as well as viable) live-born babies as persons under the law, which is intended to ensure that they are treated humanely and given whatever care (e.g., comfort care of warmth and nutrition, and medical assessment if appropriate) that a similar baby who had not been marked for abortion would have received. Moreover, under the BAIPAs, any overt act of violence against one of these babies would be a crime against a legal "person," not merely the inappropriate handling of medical waste products.

Here is a hypothetical scenario that illustrates the need for the Born-Alive Infants Protection Act and the troubling implications of the rationale that state Senator Obama gave for opposing it. (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.
Question: Has this hypothetical abortionist violated the Illinois abortion-survivor law (720 ILCS 510.6), the law that Obama is now trying to hide behind? Answer: He certainly has not violated that law. That law comes into play only when the abortionist declares that the entity being aborted enjoys "a reasonable likelihood of sustained survival . . . outside the womb." No physician -- pro-life or pro-abortion -- would affirm that a 21-week fetus has "a reasonable likelihood of sustained survival" outside the womb -- the lungs are insufficiently developed.

Question: In such a scenario, what are the implications of state Senator Obama’s stated reason, in 2001, for opposing the Born-Alive Infants Protection Act -- this being that Roe v. Wade forbids defining an aborted "previable fetus" (even after live birth) as a legal person? Answer: Under Obama's legal theory, the hypothetical doctor would not be committing a crime against a person, because there is no "person" under that theory. It appears that under this theory, the hypothetical abortionist would merely be completing the abortion, outside the womb, still operating under the protection of Roe v. Wade.

Most people, however, and most lawmakers, would have no trouble affirming that the baby in the hypothetical scenario is indeed a human child and that the hammer blow was a crime against a person. When Congress passed the federal Born-Alive Infants Protection Act in 2002, without a dissenting vote, it clearly affirmed the concept that all live-born humans enjoy legal protection, and implicitly repudiated the notion that anything in the Constitution or U.S. Supreme Court rulings dictates a different policy. Yet, in 2003, Obama killed a virtually identical bill in the committee that he chaired.

Posted by: Matt Bowman | May 3, 2010 10:05:15 AM

sorry, I said "end excerpt" before the excerpt actually ended--the excerpt continues on to the end. -msb

Posted by: Matt Bowman | May 3, 2010 10:15:36 AM

Jill Stanek's complaints against Christ Hospital were about the alleged mistreatment of previable fetuses. The allegations were thoroughly investigated and could not be corroborated. See here

There was no evidence presented for passage of the BAIPA that viable infants were being aborted alive and then killed or allowed to die. That would have been illegal under the Illinois Abortion Law of 1975. There was no *corroborated* evidence that previable infants were being aborted alive and mistreated.

Even if Obama was wrong and viable infants in some cases were not protected by the Illinois Abortion Law of 1975, in reading Obama's testimony on this and other bills, it is always his stated belief that (a) they were protected and (b) the physician performing an abortion would provide life-saving treatment for viable infants born alive. It has been some time since I read all the testimony, but I will go out on a limb and say from memory that no one disputed Obama's assumptions that viable infants were already protected.

In the transcript Matt Bowman cites, Obama is clearly discussing the fate of previable infants born alive on the assumption, as I said, that viable infants born alive are protected. See here

Obama says, "I think this is an area where it's important to recognize though that this is an area where potentially we might have compromised and -- and arrived at a bill that dealt with the narrow concerns about how a -- a previable fetus or child was treated by a hospital. We decided not to do that. We're going much farther than that in this bill. As a consequence of that, I think that we will probably wind up in court once again, as we often do, on this issue. As a consequence, I'll be voting Present."

One has to ask why, if previable infants born-alive were being mistreated, a law was not passed mandating specific care for them. Neither the Illinois nor the Federal Born Live Infant Protection Act specifies any standard of care for previable infants born alive. The laws merely declare them persons under the law. See here:

The bill eventually passed In Illinois had the following two provisions, which seem to me to subtract from any force the law may have had:
(d) Nothing in this Section shall be construed to affect
existing federal or State law regarding abortion.
(e) Nothing in this Section shall be construed to alter
generally accepted medical standards.

I would be interested to know if any existing law in Illinois or in the United States has been invoked since the federal and the Illinois state BAIPAs were passed, declaring born-alive infants to be human persons. This is a question to which I have not been able to find an answer. If the BAIPAs were necessary, and if Obama is to be excoriated for not supporting the Illinois version when he was a state senator, what has been the effect of passage? Has there ever been a case in which law enforcement has said, "Now that we may consider a born-alive infant to be a human person, we interpret law X to apply in this instance of an aborted infant born alive, and these are the consequences for the abortionist"?

Matt Bowman gives a scenario in which a born-alive infant, clearly previable, is deliberately killed by the abortionist, and he asks, "Has this hypothetical abortionist violated the Illinois abortion-survivor law (720 ILCS 510.6), the law that Obama is now trying to hide behind? Answer: He certainly has not violated that law." The answer is that the law may or may not have been violated in this hypothetical case. There is some debate as to whether the law covers previable infants. But there is general agreement that it covers *viable* infants. Obama never claimed that the Illinois Abortion Law of 1975 covered previable infants. He made it clear that what was under discussion in the debate about the Illinois BAIPA was the fate of previable infants, and he expressed a willingness to create a law dealing with the humane treatment of those previable infants.

As I have said, the (uncorroborated) testimony before the Illinois State Senate -- the same (uncorroborated) testimony presented to the US House -- was about the treatment of previable fetuses born alive. Obama expressed a willingness to create a standard of care. However, what the "pro-life" forces did was promoted a law that mandated no standard of care, but declared all born-alive infants to be persons under the law. What has been the impact? I am still trying to find out. But as far as I can tell, there has been no evidence that between the time Obama opposed the Illinois BAIPA and the time a version of it was finally passed, any born-alive infant suffered from the law not being in effect. And as far as I know -- and I would be more than happy to be enlightened -- law enforcement has not made use of either the Illinois or the Federal BAIPA. So there is a significant question in my mind as to what the point of passing them was.

By the way, I have heard a number of times previously the hypothetical scenario of the previable, born-alive fetus being killed with a hammer, and it has always seemed to me that if such a thing did happen, and if it were reported in the press, the public outcry would be so great that law enforcement would prosecute no matter how hard they had to dig to find an applicable law. This whole thread was begun because something less brutal, something about which we have almost no facts, and something already illegal, seems to have happened in Italy, and it is being reported all over the world.

Posted by: David Nickol | May 3, 2010 7:26:10 PM

For Matt Bowman (or anyone else) regarding the Illinois and the Federal Born Alive Infant Protection Acts:

1. What were these laws intended to accomplish?
2. Have they saved any viable infants born alive as the result of abortions? How many?
3. Have they resulted in more humane treatment for nonviable infants born alive as the result of abortions? How many?

Posted by: David Nickol | May 3, 2010 8:45:10 PM

David admits that Obama opposed a law declaring that born infants are persons. He disgustingly dismisses testimony of born alive abortion neglect and killings. He admits that existing law did not protect at least previable infants from the abortionist smashing their heads with hammers. He does not refute the fact that Obama said he opposed declaring such infants persons because he felt the "right" in Roe prevents the declaration of those BORN infants as persons. David wrings his hands about what care such a law could offer, without observing that it would indisputably and at least offer the protection of the criminal law against MURDER, which would include smashing a baby's head with a hammer, but which would not apply if the being is denied the status of a person.

If people including the President of the United States disagree about giving born human beings of any age the designation of persons with all the rights those entail, then yes Prof. Vischer, David has just demonstrated by his obstinate defense of the President's votes, that "many would disagree with the claims that a child who is born alive, despite (or in the course of) an abortion attempt, is -- without regard to the mother's wishes -- 'entitled to all fundamental rights'"

Posted by: Matt Bowman | May 4, 2010 12:25:36 PM

Matt Bowman says: "David admits that Obama opposed a law declaring that born infants are persons."

David Nickol replies: I do not "admit" it. I acknowledge it. Everyone knows Obama opposed the Illinois BAIPA. I would narrow it to say that Obama objected to a specific bill that categorized pre-viable born-alive infants as legal persons.

Matt Bowman says: "He disgustingly dismisses testimony of born alive abortion neglect and killings."

David Nickol replies: I don't know whether "disgustingly" here is used to mean "disgustingly, he dismisses" or "he dismisses with disgust," but neither is warranted. Jill Stanek's allegations were investigated and not corroborated. The authorities have made it clear that they did not find her allegations to be false. They simply couldn't corroborate them. It is a simple statement of fact. Great weight is given to Jill Stanek's allegations by many who are pro-life and anti-Obama, but her allegations were investigated and could not be corroborated.

Matt Bowman says: "He admits that existing law did not protect at least previable infants from the abortionist smashing their heads with hammers."

David Nickol replies: No, I said the hammer-wielding abortionist of your scenario may or may not have broken the Illinois Abortion Act of 1975. There is general agreement that the act protected viable infants. There is debate as to whether pre-viable infants were protected. Also, I pointed out if it had been learned that an abortionist had treated a pre-viable infant in such a manner, "the public outcry would be so great that law enforcement would prosecute no matter how hard they had to dig to find an applicable law." So my point was that anyone who did such a thing, whether or not the Illinois Abortion Act of 1975 forbid it, would have been in legal trouble.

Matt Bowman says: "He does not refute the fact that Obama said he opposed declaring such infants persons because he felt the 'right' in Roe prevents the declaration of those BORN infants as persons."

David Nickol replies: Actually, this is an area in which I think Obama's thinking is murky. He does seem to say that granting personhood to a pre-viable, born-alive infant contradicts Roe, and indeed pre-viability and viability are very important concepts in Roe. If a pre-viable infant is a person, he seems to say, then abortion would be forbidden. Interestingly, it is Obama in this case who is implicitly arguing that birth is an arbitrary dividing line. Ordinarily I would think that pro-lifers would agree that if a pre-viable infant is a person the moment after birth, it was a person the moment before birth. In any case, what is most important is that Obama does not offer the opinion that it is okay to smash born-alive pre-viable infants with hammers. He says that even some who are pro-choice were disturbed by the thought of pre-viable born-alive infants being mistreated, and he says they could have compromised on a standard of care for pre-viable infants. He is saying they could be protected by the law. He is not rejecting the idea of humane treatment for born-alive infants. He is declining to support the Born Alive Infant Protection Act.

Matt Bowman says: "David wrings his hands about what care such a law could offer, without observing that it would indisputably and at least offer the protection of the criminal law against MURDER, which would include smashing a baby's head with a hammer, but which would not apply if the being is denied the status of a person."

David Nickol replies: One important point has to be made here. Your scenario of the hammer-wielding abortionist is *purely* hypothetical and intended to prejudice the entire discussion. In voting against BAIPA, Obama was not faced with a situation in which babies were being killed with hammers. That is a scenario that has been invented to emotionally charge the discussion and demonize Obama. "Why, here is a man who won't vote to protect babies from being hammered to death!" But of course babies weren't being hammered to death, or dropped from tall buildings, or boiled in oil. You are demonizing Obama for declining to vote for a bill that might prevent something from happening that had not ever happened and almost certainly would never happen.

Regarding your last paragraph, I don't know what it means to say that an infant that has no chance of living more than a few hours (because it has not reached the point of viability) is "entitled to all fundamental rights." My own personal view would be that a baby that is born with a reasonable chance of survival should receive life-sustaining treatment. An infant that is born with no chance of survival, but survives briefly, should be treated humanely. I have no problem with laws that require this.

I would like to point out that late-term abortions are rare, and infants born alive as the result of abortions are extremely rare. However, the incidence of miscarriage (on one side of the line) and extremely premature birth (on the other) is an everyday occurrence. Doctors must often make decisions on which infants are allowed to die with only comfort care and which are given life-saving (and extremely expensive) treatment. Why no concern for them?

Finally, I would like to revisit a point I raised above. Why would those who are pro-life expect those who are pro-choice to make a distinction they do not make themselves? Why should those who are pro-choice recognize separation from the mother's body as an event that confers "all fundamental rights" on an infant? Pro-lifers argue that a fetus in the womb doesn't magically become a person because it leaves the womb. Why would it be so wrong of pro-choicers to maintain the same? Rick Garnett seems to expect those who are pro-choice to believe that birth transforms a nonperson into a person. But I am quite sure he doesn't believe that, and you don't believe that. Why should anyone believe it?

Posted by: David Nickol | May 4, 2010 11:26:11 PM

Matt Bowman:

We are not discussing me. We are discussing Obama's opposition to the Illinois BAIPA. The evidence Obama had of "atrocities committed against born-alive abortion victims" consisted of the uncorroborated allegations of Jill Stanek. Are legislators supposed to make laws based on uncorroborated allegations of one or two individuals? And of course Obama did not show an indifference to the possibility that born-alive infants were being mistreated. He expressed a willingness to pass a law mandating human treatment for born-alive infants.

By the same reasoning you are using hear, 8 of the 9 justices on the Supreme Court can be accused of being in favor of making and distributing videos of women in high heels crushing kittens. The court, of course, did not grant their approval to such videos. They struck down an overly broad law that, among other things, outlawed such videos. Likewise, Obama did not express approval for the mistreatment of born-alive infants. He refused to support a law that he considered a bad law that proposed to solve a problem that no one had proved actually existed. You try to make it sound like he declined the opportunity to keep born-alive infants from being hammered to death, but that is a fantasy made up in retrospect to try to demonize Obama.

And now, of course, you attempt to demonize me by accusing me of being the moral equivalent of a Holocaust denier -- or worse! It seems the way you deal with those who disagree with you is to attack their character. You seem to have overlooked the fact that I expressed approval for laws that mandate humane treatment of all non-viable born-alive infants, and life-saving care for all viable born-alive infants. You are intent on putting the worst possible interpretation on Obama's vote and on my defense of it. I can understand why those who oppose abortion are emotional about the topic, but it seem to me that what angers you is someone disagreeing with you.

Posted by: David Nickol | May 5, 2010 2:08:47 PM

First paragraph, line 4, "human treatment" should be "humane treatment"
Second paragraph, line 1, "using hear" should be "using here"
Third paragraph, second last line, "it seem to me" should be "it seems to me"

Apologies for the typos

Posted by: David Nickol | May 5, 2010 2:12:44 PM

Matt Bowman:

I am arguing that Obama scant evidence on which to base a conclusion that born-alive infants were being mistreated. It is my understanding that you are a lawyer. I think you should understand that allegations that have been investigated by the Illinois Attorney General's office and the Illinois Department of Public Health and not corroborated might carry little weight with lawmakers. I think you should also understand that the fact that they *were* investigated meant that the state of Illinois took possible mistreatment of born-alive infants seriously as potential violations of Illinois law and regulations. Consequently, no new laws were needed.

You have apparently abandoned the effort to argue your point about Obama and BAIPA and instead begun to criticize me personally. I am interested in defending Obama's vote because I think it has been interpreted very unfairly. I am not interested in defending myself against charges that I am the moral equivalent of a Holocaust denier.

Posted by: David Nickol | May 5, 2010 5:06:38 PM