On July 20, the House Judiciary Subcommittee on the Constitution held a hearing on a bill (H.R. 4292) that would change the definition of a person under the United States Criminal Code. Sponsored by Rep. Charles Canady (R-FL), the bill states that “the words ‘person’, ‘human being,’ ‘child,’ and ‘individual,’ shall include every infant member of the species homo sapiens who is born alive at any stage of development.”
Noting the recent Supreme Court decision, Stenberg v. Carhart, in which the court struck down a Nebraska law that would have banned “partial-birth” abortions, Subcommittee Chair Canady stated, “If the right to abortion entails the right to kill without regard to whether the child remains in the mother’s womb, it would seem to follow that infants who are marked for abortion but somehow survive have no legal right to appropriate medical care.”
Rep. Canady was motivated by the stories of two nurses from Illinois who testified that they had witnessed babies survive “therapeutic abortions,” but receive no medical care to enable long-term survival. “In the event that a baby is aborted alive, he or she received no medical assessments or care but is only given what my hospital calls ‘comfort care.’ Comfort care is defined as keeping the baby warm in a blanket until he or she dies, although even this minimal compassion is not always provided,” stated Jill Stanek, RN. According to the testimony of Allison Baker, the hospital performed second and third trimester abortions on babies “with conditions such as Down’s Syndrome, Spina Bifida, Potter’s Syndrome, and many others.” However, Ms. Stanek stated, “Sometimes the babies being born are aborted healthy, and sometimes they are not.”
Dr. Matthew Hile of Missouri gave emotional testimony about his personal experience with losing his one-month old daughter. Born with several severe genetic abnormalities and no prognosis for sustained life, physicians and nurses underwent one month of heroic measures to keep the baby alive. Reading from a journal entry, Dr. Hile stated, “We became angry with the medical staff. What are you doing making her suffer like this?? You have nothing to do to help her, why would you make her go through this over and over again? Why can’t you let her go?” He urged the subcommittee, “Leave these agonizing decisions to those most involved, the physicians and families who care deeply about their children.”
Rep. Stephanie Tubbs Jones (D-OH) testified before the subcommittee in opposition to the bill. Saying that the bill was “riddled with flaws,” Rep. Jones detailed several specific concerns with the bill: its necessity, the impetus behind the bill, and what she called overly broad and vague language. Adding that the bill was a “back-door attempt to do what the U.S. Supreme Court has strictly forbidden over and over—it unduly restricts a woman’s right to choose to terminate a pregnancy,” Rep. Jones said that the bill’s definition was an “unreasonable expansion of the definition of viability [that] blurs the crucial distinction between pre-viability and post-viability and, as such, directly contradicts the U.S. Supreme Court.”
Assessing the statutory impact of the bill, Ken Thomas of the Congressional Research Service (CRS) found, “After a cursory review of the Code, it appears that the addition of this new language would have minimal effect on the prospective application of federal statutes.” While adding that it was not clear how the bill would impact federal criminal law, he stated, “The concept of born alive would appear to be intended to apply to fetuses expelled prior to viability. This definition is broader than the common law definition, which applies to women ‘quick’ with child (between the 16th and 18th week of pregnancy).” Additionally, “It is not clear if the statute would be limited to the situation where the cause of death was inflicted after the fetal expulsion, or whether it could be interpreted to cover injury inflicted in utero during an abortion,” he stated.
Profs. Hadley Arkes of Amherst College and Gerard Bradley of Notre Dame Law School disagreed with the CRS interpretation of the bill. Saying that H.R. 4292 “offers the most modest and gentlest step that is imaginable in dealing with the question of abortion,” Prof. Arkes added: “We think that the inclination to protect the child with the law must imply that the child has a claim to the protection of the law that cannot pivot on the question of whether anyone ‘wants’ her. That child has an intrinsic dignity, which must in turn be the source of rights of an intrinsic dignity, which cannot depend then on the interests or convenience of anyone else.”
Prof. Bradley added that the bill would create a uniform definition of the word person. “By this Act, Congress eliminates the guesswork, and the unfairness, of depending upon so many disparate defining officials. By this Act, Congress settles the rights and duties of affected parties by codifying, once and for all, the meaning of these important terms,” he stated.
The subcommittee also heard competing testimony from two doctors. Dr. Watson A. Bowes, Jr., of the University of North Carolina at Chapel Hill School of Medicine noted that the definition of live birth used in the bill was consistent with that of the World Health Organization. “It is my opinion that this definition of being born alive does not and will not have a detrimental effect on either maternal or infant health care,” he stated.
Dr. F. Sessions Cole of the Washington University of Medicine disagreed, saying, “The language of H.R. 4292 would impose on doctors and parents a universal definition of ‘life’ or ‘alive’ which is, in my experience as a neonatologist, inconsistent with the harsh reality presented by a number of circumstances.” He added: “When parent and physicians decide together that life support technology is futile for an infant…parents have a moral and legal obligation to minimize the suffering of their baby, regardless of the pain such a turn of events brings to them in their loss.”
A mark-up by the subcommittee was scheduled for July 21 but was postponed. The measure may be considered by the subcommittee as well as the House Judiciary Committee the week of July 24.
