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Protecting the born

For a long time, led by the estimable Hadley Arkes, pro-lifers have been trying to pass laws that would protect born children who survive an abortion.

One such law, the Born-Alive Infants Protection Act, was passed at the federal level in 2002. A problem with that law, however, is that it contained no penalties for doctors or hospitals that violated and hence no enforcement provisions. Arkes' own hope was that a favorable administration would enforce it on an case-by-case basis by threatening to withdraw federal funding from specific hospitals (such as the infamous Christ Hospital in Illinois about which Jill Stanek testified) that violated its provisions.

One problem with this type of "enforcement" is that it would change from one administration to the next. As far as Arkes' specific suggestion of threatening loss of federal funds to specific hospitals, even the Bush administration was apparently not willing to be quite that blunt, but it did make some attempts, as outlined in this extremely interesting document (which I discovered only a few days ago) to interlock BAIPA with other federal provisions so as to make states and hospitals responsive to BAIPA in some fashion.

First, the Bush HHS argued that the provisions of EMTALA applied in the case of a child born alive at a hospital as a result of an attempted abortion. That is, the child's existence and need for assistance was in that case an "emergency," and doctors should respond appropriately to give the child aid or else be in violation of EMTALA. Second, they argued that a child who was not given assistance because of surviving abortion would be a case of child neglect and that therefore states were responsible under federal law requiring states to prevent child neglect (CAPTA) to have policies in place to report and respond to such situations.

These attempts were actually rather clever, but it is not clear that they made much difference. Jill Stanek, for what it is worth, is dubious and believes that fatal, born-alive abortions still continue at hospitals. It is certainly unlikely that the Obama administration is making any attempt to find out the state of the situation.

The basic difficulty in enforcing any born-alive act is simply this: Not giving a premature baby breathing assistance is usually deemed "extraordinary care," and the decision as to whether to do it or not is normally left to the parents in consultation with the doctor. There is no way to require per se that children who survive an abortion be given breathing assistance without requiring that all preemies be given breathing assistance, but nobody is going to require that, because to do so would interfere at precisely that point where the law intersects delicate matters such as parental rights and medical judgement concerning the use of "machines to keep people alive" such as ventilators.

So all the doctors have to do in such a case is to evaluate the baby and declare putting it on a ventilator to be "medically inappropriate," and the baby will die. That is, unless they accidentally performed the abortion so late in the third trimester that the baby can easily breathe room air on its own for an indefinite period. At that point they would have to declare that feeding the baby (even by bottle) was "medically inappropriate"--though I wouldn't put that past them either nor count on its being prosecuted. See this story about a full-term baby with a cleft lip. But the point is probably moot, because live-birth abortions are deliberately performed when the child will not be able to breathe indefinitely without some help. Problem solved (for the abortionists).

In essence, a born-alive act is a kind of anti-discrimination act. The idea is to make sure that a baby is not denied breathing assistance because he is the survivor of an abortion attempt. But, like most attempts to legislate against things that would otherwise be legal unless done for the wrong motives, this particular anti-discrimination law is extraordinarily difficult to enforce. Really enforcing it would require very aggressive investigation and prosecution and specific mechanisms set up for sniffing out this particular type of discrimination, such as we have in other areas of anti-discrimination law. Doctors and parents would have to be questioned closely on the reasons for their actions and so forth. There would have to be specific penalties in place for refusing a baby assistance on this ground. And the will to do that just isn't there. All the less so since, unlike other alleged victims of discrimination, babies who survive abortion cannot speak up for themselves, file lawsuits, and make demands.

Now we have a new, to my mind somewhat creative and clever, attempt at a state BAIPA in Florida. My own biggest gripe with it is that its penalties, though fortunately they do exist, are quite measly: Violation of the law is a misdemeanor, punishable by up to $1000 fine and up to one year in the county jail.

This BAIPA targets abortion clinics rather than hospitals, and its purpose is quite clearly to bring newborn babies who have survived abortions into the light of day and to the attention of people other than those who have just tried to kill them. If obeyed and enforced, such a law would make it more difficult for the abortionist simply to hustle the babies out of this world quietly without anyone knowing that they ever existed.

Several good points of the law:

1) The law does contain actual penalties, however minor.
2) The law contains a mandatory reporter clause, which might spook clinic workers into not remaining silent if a child is set aside in a room to die.
3) The law specifically requires that the child be transported to a hospital. Rather than simply requiring the abortionist at the clinic to decide what is "medically appropriate" or to offer assistance himself (ha ha) this law requires that other medical personnel be brought into the situation. We can hope that they would be more merciful. They could hardly be worse than the abortionist, anyway.
4) The law contains a surrender provision which, as I understand it, would at least temporarily suspend the mother's parental rights so that doctors at the hospital could assist the baby right away rather than being stopped by the mother. I'm sorry to say that I read today (but cannot now find the link again) that the sponsor of the bill is said to be wavering on this provision under pressure from Planned Parenthood.

All of this brings me to this remarkable testimony, which you have probably seen doing the rounds of the Internet under an understandable heading such as "Planned Parenthood Representative Supports Post-Birth Abortion."

As you can see, the PP representative was less than forthcoming despite repeated attempts by the committee members to elicit responsive answers to their questions. She keeps saying that "any decision" about what should be done in the case of a child who survives an abortion should be left to "the woman, her family, her physician" (the family cat, the family dog, Mr. Rogers...) Now, that "any decision" is fairly striking. If it isn't a smoking gun for infanticide, it is at least a gun that is giving off a lot of carbon molecules. Really, any decision? How about the decision to smother the baby with a pillow? The decision to slit the baby's throat or snip its spine (a la Kermit Gosnell)? The decision to zip it into a bio-waste bag to be stifled to death? Or just the decision to set it in a storage room until it stops breathing?

But she wouldn't answer a straight question. The committee did a good job pressing her, but I would have liked to see what answer she would have given to the question, "What is this decision you keep talking about? The decision to do or not to do what? Please be specific."

When one committee member suggests to her that the born child is a patient in the situation, she smiles and says she'd "like to have a conversation about that with him."

Finally, in frustration, one committee member asks her what possible objection she could have to requiring that a baby be transported to a hospital. She says that she objects to it in cases where the clinic was remotely located and the hospital might be forty-five minutes away. What's the problem? The gas money? This recalls our wonderful, sensitive Commander-in-Chief who said he didn't want an abortionist "burdened" by an Illinois BAIPA if the baby wasn't just "coming out limp and dead." Heaven forbid that an abortion clinic should have to send someone to drive a live baby forty-five minutes to a hospital. (Even by their own lights, should abortion clinics be located forty-five minutes from the nearest hospital? What if one of the mothers needs emergency medical assistance?)

So I suppose it goes without saying that Alisa Lapolt Snow is a moral monster.

The bill did pass out of committee. I hope the surrender clause remains in it. May it save some lives.

It is my opinion that only aggressive prosecutorial action will help babies born alive. There are enough statutes on the books even without BAIPAs that, while we can't absolutely require that breathing assistance be given, a motivated local or state prosecutor could make it hot for abortion clinics that murder born babies. Here are a few suggestions:

--The prosecutor's office should make a formal statement that regardless of age, born-alive infants are citizens and that reports of their deaths post-birth will be aggressively investigated. Such a statement would expressly disavow the despicable appeal to "viability" made in Hialeah to justify not investigating.

--The penalties in laws like Florida's should be ramped up significantly. The violation of such a law should at least be a felony, and that's just for failure to assist the child and take him to the hospital. Obviously, more direct and active forms of murder should be punished to the full extent of the law against murder.

--CPS should start justifying its salary. Instead of harassing home schoolers, they should actively encourage and investigate reports of babies such as the child with the cleft palate who are able to eat on their own and are starved to death. Training of CPS workers should include training in the legal fact that starving a baby to death in a hospital is just as much gross child neglect as starving a baby to death in a home. If a feeding tube is needed, I'm afraid the courts will get involved, but if a child can eat, I don't think they can stop such investigations.

--In various ways, the public at large should be encouraged to report neglect of or harm to newborns in medical contexts. A public education campaign should be carried out to erase any idea that a doctor can legally kill your newborn baby even though you can't. This might include state and local campaigns to publicize a phone number to which such allegations can be reported.

I note that the previous two suggestions are in line with what the Bush administration intended when it attempted to apply CAPTA to the neglect of newborns following abortions. In fact, to its credit, the Bush DHS specifically targeted "medical neglect" against newborns. States can do far more than the federal government (especially more than an unmotivated administration such as the present one) to apply child neglect statutes to such cases, and they should do so aggressively and creatively.

--Informed consent laws for abortions should require that the mother be informed that if her baby is born alive he has to be transported to a hospital and receive assistance there, that the clinic staff legally cannot and will not just "get rid of the baby." This would require maintaining surrender provisions like the one that has initially been in the Florida law.

Systematic born-alive abortion followed by deliberate neglect has already been practiced for some time in the United States. If state and local government do not make life difficult for those who engage in such practices, we will move with great ease to a regime of active infanticide and scarcely know how we got there. The Florida bill is a good start, and I wish it well.

Comments (11)

It just occurred to me that one tactic states could use is to deny incorporation to businesses that perform abortions. Require that they be performed by sole proprietors or partnerships. That would raise the liability on them considerably and likely drive up insurance and other costs considerably.

Mike, is there any fundamental constraint to putting a "qualifier" on allowable entities that want to incorporate? I mean, obviously you can make it illegal to incorporate for the specific purpose of pursuing illegal activity. But other than something like that, would the state be in the position of saying "either we allow incorporation, or we don't, we cannot pick and choose between Bill's sub shop and Ben's Friday night singles' parties."

Arguably there is no constraint, but as corporations are legal fictions created by the state one can hardly argue that one has a moral right to have one even if one's actions are on the side of the angels. The rights gained through incorporation are sufficiently powerful to make regulating them in the public interest morally acceptable. Limited liability is a powerful thing.

It just occurred to me that one tactic states could use is to deny incorporation to businesses that perform abortions. Require that they be performed by sole proprietors or partnerships. That would raise the liability on them considerably and likely drive up insurance and other costs considerably.

Why wouldn't they just incorporate their business in Delaware (or some other state) instead? It might increase costs somewhat, but I'm not sure it would have much overall effect.

Why wouldn't they just incorporate their business in Delaware (or some other state) instead? It might increase costs somewhat, but I'm not sure it would have much overall effect.

Off the top of my head, I'm not aware of any Full Faith and Credit jurisprudence relating to corporate recognition, but Florida could refuse to recognize the corporate status of abortion clinics incorporated in other states and hold the actors personally liable.

Why wouldn't they just incorporate their business in Delaware (or some other state) instead? It might increase costs somewhat, but I'm not sure it would have much overall effect.

The state could prohibit them from doing business within their borders or fine them punitively. They successfully do this with insurance as it is not legal in most, if not all, states to buy insurance from an out of state business.

I myself was interested to learn that the Bush administration _did_ try to find a way to give actual teeth to BAIPA. Now, very often, when the federal government gets involved and tangles up some activity in its massive regulations, everyone jumps. Hospitals are afraid to lose funds and so forth. Even if it isn't absolutely clear how the federal government is going to enforce the regulation. Here, it appears that they didn't really change, even during the Bush years. Why not? Is there really such a huge motivation to do live-birth abortions? Is that method really profitable, or what?

hold the actors personally liable

That is a prevalent misconception of the protection of limited liablity. The actors are always personally liable. A corporation, as such, can't really do anything anyway. Anyone performing the abortion or involved in it personally, including the doctor, is going to have personal liability. For the doctor, incorporating only protects him for things in which he is not personally involved (someone slips in his office, another physician part of the group messes up, etc.).

I think the penalties themselves are not that weak - at least not the jail time if actually enforced. 364 days behind bars would put an Alaska in January chilling effect on abortionists even in south Florida.

The penalties are for failing to take a baby to the hospital who survives an abortion. I mean, I'm glad you think it would have a chilling effect, C Matt, but I tend to think that if you combine the _relative_ weakness of those penalties with the difficulty actually catching someone breaking the law, my guess is that most abortionists will risk it on those rare occasions when a child survives an abortion. Probably not that they will risk snipping spines a la Gosnell but that they'll just quietly whisk the baby off to another room to gasp his last. What are the odds that the mother will know that the child was born alive? If she does, what are the odds that she will care? If she does, what are the odds that she will know there is a state law requiring the child be taken to the hospital? And what are the odds that the clinic workers will tattle?

I know it sounds like I'm being a downer, and actually I _support_ the Florida law. I'm just afraid that "what happens in the clinic stays in the clinic."

True, but that would be the case regardless of the severity of the penalties. Probably the only way to enforce it would be through periodic unannounced audits.

I don't know. Don't you think that the more severe the penalties, the more nervous the workers might be about covering up?

What would a periodic audit look like?

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