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Jewish World Review Sept. 25, 2000 / 24 Elul, 5760

Nat Hentoff

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Consumer Reports

Protecting babies born alive -- THERE HASN'T been much attention paid to a bill, H.R. 4292, approved on July 26 by the House Judiciary Committee. The vote was 22-10. Titled the Born-Alive Infants Protection Act of 2000, the bill -- if enacted into law -- would, as the Congressional Quarterly reported, "prevent the killing of infants who are born alive accidentally or during an attempted abortion."

The bill would apply, in federal law, to any infant "completely expelled or extracted from the mother's body -- displaying any of several specific signs of life: breathing, heartbeat and/or definite movements of voluntary muscles." This could occur at any stage of the pregnancy, whether or not the infant's lung development "is believed to be, or is in fact, sufficient to permit long-term survival."

For example, "many infants are born alive at 20 to 22 weeks and survive for hours. ... Infants are also born alive at 23 and 24 weeks and have a 39 percent and 54 percent chance for survival."

The bill's sponsor, Republican Charles Canady of Florida, notes that this act would state what is already a principle of existing law in 41 states and the District of Columbia: "Infants who are born alive are persons under the Constitution, entitled to the protection of the laws."

In Roe vs. Wade, which established the right to an abortion, Supreme Court justice Harry Blackmun also pointed out that once born, an infant is indeed a person under the Constitution.

Why is such a law re-establishing so basic a legal principle needed now? Because, says Canady, of the recent Supreme Court decision overturning a Nebraska statue banning partial-birth abortion -- in which an infant is partially extracted from the mother. Clarification is needed, Canady continued, to make it clear that an infant cannot be killed once he or she is fully outside the mother's body.

Testifying for the bill, Jill L. Stanek, a registered nurse, told of infants born alive during abortions who are put aside until they die. She cited "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 were later going through the trash to find the baby, the baby fell out of the towel and onto the floor." The baby was indeed disposable.

Others testified against the bill, maintaining that the Born-Alive Protection Act violates Roe vs. Wade because it defines the viability of the fetus by applying it to all stages of prenatal development. Viability means that the fetus is sufficiently developed to live outside the uterus.

Judiciary Committee member Jerrold Nadler, a New York Democrat, rebutted the opponents and supported the bill, even though he described himself as being "as pro-choice as anybody on Earth."

I can attest to that, because Nadler represents the district where I live in New York. Nadler said unequivocally that, under long-established legal principles, "if an abortion is performed, or a natural birth occurred, at any age, even three months, and the product of that was living outside the mother, and somebody came and shot him, I don't think there's any doubt that person would be prosecuted for murder."

Yet the National Abortion and Reproductive Action League (NARAL) -- which often calls pro-lifers "extremists," as Al Gore does -- furiously objected to the bill. NARAL accuses "anti-choice lawmakers" (Nadler?) of making fetuses into persons "at any stage of development, thereby directly contradicting one of Roe's basic tenets."

Helen Alvare, formerly with the National Conference of Catholic Bishops, responded: "Abortion advocates now insist that the decision to kill a fully born infant, at any stage of development, is a personal and private medical decision." NARAL says the killing is up to the mother and the physician at any stage.

The Born-Alive Infant Protection Act is likely to pass the House, but its prospects in the Senate are uncertain. Under Senate rules, a companion born-alive infant bill can be delayed until it dies, or it can be filibustered. Senators who are for only one choice could well decide to deny a human being, wholly removed from his or her mother's body, the right to stay alive as a person under the Constitution.

Says Helen Alvare: "The pro-life community predicted that failure to stop partial-birth abortion would lead to infanticide. Now, NARAL is arguing for precisely that."

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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© 2000, NEA