Warning. Some material in this article is of a graphic nature.
In 2006, near Miami, Florida, unlicensed healthcare workers at an abortion clinic performed a late-term abortion that resulted in the delivery of a live 23-week old baby girl. When they saw the baby struggling to breathe, the abortion workers stuffed the infant into a garbage bag and stashed her on the roof. In 2009, a Miami prosecutor charged the abortionist in the case with murder. Unfortunately, two years later, in 2011, the charges were dropped.
In 2008, in Philadelphia, Pennsylvania, a 32-week old baby survived an abortion. He was 19 inches long, and a witness testified that the baby looked about the size of her own newborn daughter who weighed 6 pounds, 6 ounces. Reportedly, upon seeing the baby, the abortion doctor joked, “This baby is big enough to walk around with me or walk me to the bus-stop.” The doctor then “just slit the [baby’s] neck” and dumped him into a plastic shoebox for disposal. The workers were so startled that one took pictures of the baby. When asked why she took a photograph of the baby, the worker responded, “Because it was big, and it was wrong, and we knew it.” A Philadelphia Grand Jury, in 2009, indicted the doctor, Kermit Gosnell, for, among other things, killing this infant and several other babies who survived late-term abortions.
The Born Alive Infants Protection Act (BAIPA) was enacted in 2002 to address cases like these. Although the federal government did investigate and charge Dr. Gosnell with drug-related crimes, the government remained deafeningly silent on the issue of infanticide in both the Philadelphia and Florida cases. In fact, it is unclear whether the federal government has ever used the BAIPA to investigate any health care worker, doctor, or facility on accusations of infanticide.
Apathy does not fully explain the government’s inactivity. Rather, the law’s defectiveness may bear some responsibility. The BAIPA should be revised or amended to give prosecutors the tools to stop infanticide, and similar legislation must be enacted at the state level. Without these much-needed legislative changes, infanticide will continue, eroding the inalienable right to life for everyone.
The legal right to an abortion has existed since the Roe v. Wade decision in 1973 (not a constitutional right, as it is not in the Constitution). The Doe v. Bolton case, handed down the same day, in effect, extended the “right” to abortion to all nine months of pregnancy. States have attempted to restrict abortion, and many of those restrictions, including waiting periods, mandatory counseling, and parental consent, have been upheld by the Supreme Court.
According to the Guttmacher Institute, the research arm of Planned Parenthood, 88 percent of abortions occur during the first trimester. The most common procedure is known as “Vacuum Aspiration” in which the baby is sucked out of the uterus. Second and third trimester abortions account for about 12 percent of abortions, and are performed primarily on babies who are found to have physical deformities. Ninety-two percent of Downs Syndrome babies are aborted, some as late as the third trimester.
Until 2003, there were two legal abortion procedures performed during the second and third trimester: Dilation and Extraction (D & E) and Early Induction Abortions. D & E, also known as “Partial Birth Abortion,” involved inducing delivery and killing the baby in the birth canal. Early Induction Abortion requires the baby to be killed by an injection of Digoxin into the baby’s heart. Labor is induced. The child is then extracted from the uterus, usually dead, but not always.
A legal tug-of-war ensued from the mid-1990s until 2003 over when a woman’s so-called right to abortion ends and the rights of the child begin. Twice, Congress enacted bills that banned partial birth abortion, and twice President Clinton vetoed them. States began prohibiting partial birth abortions. In 2000, the U.S. Supreme Court struck down a Nebraska state statute banning partial birth abortion. According to this case, a child’s right to live did not exist at birth, but rather, only existed if the mother wanted the child to live. The child’s location in the womb, in the birth canal, or outside the woman’s body became inconsequential. Infanticide, under the guise of abortion rights, had been legalized by the Supreme Court.
Congress finally addressed both types of abortions with passage of the Born Alive Infants Protection Act of 2002 (BAIPA) and the Partial Birth Abortion Ban of 2003. Unlike the BAIPA, the Partial Birth Abortion Ban imposed criminal penalties for violators. It was challenged as unconstitutional, and upheld by the Supreme Court in 2007 in the case Gonzales v. Carhart. Under current law, a doctor exposes himself to criminal penalties if he performs partial birth abortions. Additionally, 31 states have enacted partial birth abortion bans. Eighteen laws are in effect.
Sponsors of the BAIPA intended for the law to protect children born alive after an Early Induction Termination Abortion. Hearings were conducted in both houses of Congress with nurses and others testifying extensively about how children who had survived abortion had been left to die in hospitals across the country. Congress finally enacted the bill, and President Bush signed it in 2002.
Curiously, there was great fanfare at the bill’s signing, but from the moment it was signed by the President, the law seemed to drift into oblivion. The White House barely spoke about it again; neither did anyone in the U.S. House or the Senate. One author compared the law’s fate to the fate of the babies it was supposed to protect: “…BAIPA was birthed, laid aside and allowed to die by those who should have cared for it most.”
The medical elite did not remain silent, however. Defiantly, they declared that the profession had no interest in complying with the BAIPA. In 2002, the American Academy of Pediatrics’ Neonatal Resuscitation Program Steering Committee stated that the BAIPA would have no effect on the treatment of “those newly born infants who are deemed appropriate to not resuscitate or to have medical support withdrawn … [and] should be treated with dignity and respect, and provided with comfort care measures.” Which children were “deemed appropriate” for resuscitation was to be determined by the family and the doctor. Nothing had changed.
The language of the BAIPA was weak from the start. Unlike the Partial Birth Abortion bill, it contained no findings of fact. It provided no criminal penalties for violators.
From the date it was enacted, the law’s effectiveness was on life-support, and the U.S. Department of Health and Human Services (HHS) handily pulled the plug. In 2005, three years after the law’s enactment, HHS finally exercised its duty to promulgate regulations. The department chose to enforce it solely through notification and education measures in two federal programs: The Emergency Medical Treatment and Active Labor Act (EMTALA) and the Child Abuse Prevention and Treatment Act (CAPTA). Respectively, both laws fund federal programs to hospitals to ensure that individuals are treated in emergency rooms, and that children who are abused receive proper care in hospitals. Under the promulgated directives, all infants who were “born alive” and “medically neglected” had to be reported to the proper authorities. The regulations imposed fines on hospitals and doctors who violated either statute.
The decision to enforce the BAIPA through these statutes spelled the death knell of the law for several reasons: First, both CAPTA and EMTALA rely on reporting from a third party to the government in order to trigger an investigation. There is no independent oversight. Unlike other scenarios where there is a party who wants the patient to live, in the abortion scenario, no one, including the baby’s mother, wants the unborn child to live. Consequently, no one will report the lack of care given to the infant surviving an abortion, and no investigations and subsequent punishment will occur.
Secondly, the requirements to treat are triggered when an infant is “suffering from an emergency medical condition.” As pointed out by one doctor in a 2005 article published in Pediatrics, “emergency medical condition” is not defined. A child surviving an abortion may not be an “emergency medical condition” because no one involved with the procedure wants the child to live.
Thirdly, neither CAPTA nor EMTALA carry criminal penalties for violations, simply fines. A hospital or doctor committing infanticide would simply be judged under these laws as negligent, not criminal, a far lighter burden.
Finally, by targeting enforcement facilities that are receiving federal funds through CAPTA and EMTALA, the government is missing its mark on the primary abortion providers. While some abortions occur in hospitals and emergency facilities receiving these funds, many, if not most, abortions occur in private facilities, which do not receive these federal funds.
In his book entitled, Unsanctifying Human Life, the medical ethicist, Peter Singer, punctuated the prevailing view in modern medical ethics: “Normal adults and children, but not fetuses and infants, are persons.” Non-persons, which in his view include fetuses and infants, especially infants marked for death by abortion, can be killed with impunity. Peter Singer’s utilitarian view of life has replaced the sanctity of life ethic that has existed throughout history in the medical profession. Most recently, two of his Australian contemporaries published an article in the Journal of Medical Ethics arguing that babies who survive abortion are “non-persons” and that “killing a newborn could be ethically permissible in all circumstances where abortion would be.”
Understanding this mindset, it comes as no surprise that the medical elite continues to dance on the grave of the BAIPA. In 2009, in the American Academy of Pediatrics publication, Pediatrics, 28 percent of neonatologists surveyed said that their own practice “would not change if the BAIPA were enforced.” Six neonatologists threatened to stop practicing medicine and four additional doctors said they would find ways to circumvent the BAIPA. Only six percent of the physicians surveyed believed the BAIPA should be enforced.
Most telling in the study was a response among the physicians surveyed that the acceptable gestation limit for required resuscitation rose according to, among other factors, the physician’s views on abortion. One neonatologist complained that the BAIPA would force physicians to resuscitate more babies and “increase the cost of care. If they survive, there will be more children with severe disabilities. I wish they would spend the money for children who need care now.”
Opponents of the BAIPA are quick to underscore the law’s uselessness. They say that babies simply are not born alive after abortions, at least not enough to be of concern. An U.K. study published in 2007 reported otherwise. It found that one in 30 children survived an early induction abortion. In all these cases, the abortion was performed because of fetal abnormalities, including Downs Syndrome or heart defects. The median survival time was 80 minutes. Some lived a shorter period of time. Some lived as long as six hours after the abortion. These babies ranged from 17 to 33 weeks gestation. Many may have lived had their mothers wanted them.
The U.S. medical profession has confirmed these findings. In 2010, the Society of Family Planning issued a report entitled, “Induction of Fetal Demise Before Abortion.” In that article, the authors candidly admit, “in the literature describing induction termination, there have been multiple case reports of unintended live births.” Although accounting for only one percent of total abortions, early induction abortion is the only legal method of abortion for babies who have reached the latter part of the second trimester or the third trimester of gestation.
Interestingly, North Carolina Women’s Hospital has an information sheet posted on the web that answers questions for women obtaining an abortion about the early induction method. One of the questions listed on the information sheet is “Will my Baby Be Born Alive?” The sheet states: “Many times babies are not born alive…. However, some babies do breathe for a short time after delivery. If your baby is born alive, he/she can be kept warm and given comfort until breathing stops. A nurse can do this if you and your family are not able.”
Dietrich Bonhoeffer, one of the few German theologians who opposed Hitler, warned, “Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act.”
For too long, this nation has not spoken and has not acted on the issue of infancticide. Americans have remained far too complacent about the fate of children who survive abortions, convinced that the matter was adequately addressed in 2003. America’s most vulnerable citizens deserve more than mere symbolism. A nation that fails to protect the weak from the strong is no longer a free nation.
As atrocious as the baby-killings were in the Philadelphia and Florida cases mentioned at the beginning of this article, the issue of infanticide carries with it far greater implications than issues of life and death at its beginning. It challenges the strength of Americans’ national belief in the inherent dignity of all innocent life, including the lives of the handicapped and the aged.
Bonhoeffer was hung for speaking out against Hitler. At the very least, lawmakers should be willing to risk political fortune to protect the most fundamental right, the right to life. It is time to stop settling for politicians who make hollow promises and enact meaningless laws. The choice is clear. The life of every American and their children may depend on the answer, not to mention the fundamental freedom of the greatest nation on earth.
Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s.