As the longtime legislative director for National Right to Life, I think I can shed some light on the points raised in a posting above by “jim m,” who argued that the Illinois Born-Alive Infants Protection Act (BAIPA) that Obama opposed was unnecessary because, he asserts, “there were two laws [already] in effect that covered this situation.”

He is mistaken on both counts.

One of the two laws he mentions is the federal BAIPA, which had been enacted in 2002. But the federal BAIPA simply established that when the terms “person,” “human being,” “child,” or “individual,” appear in any FEDERAL law or regulation, they are to be construed to include “every infant member of the species homo sapiens who is born alive at any stage of development,” and goes on to define “born alive” as meaning that the human has achieved “complete extraction or expulsion from his or her mother” and shows specific, defined signs of life. This law has no application whatever to the interpretation of any STATE laws or regulations — for example, the interpretation of a state homicide law. Apples and oranges.

The other law mentioned by “jim m” is a pre-existing Illinois state law, 720 ILCS 510.6. But in reality, this law provided no protection at all to many of the babies born alive during abortions, and only very weak or theoretical protection to the others. Allow me to elaborate.

720 ILCS 510.6, on its face, applies only where an abortionist declares before the abortion that there was “a reasonable likelihood of sustained survival of the fetus outside the womb.” But 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”). Thus, the old Illinois law has no bearing on many of the induced-labor abortions about which 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.”

For example, one nurse testified, “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 nurse testified that another 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.” Another nurse 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.”

These live-born but “pre-viable” infants enjoyed no protection at all under 720 ILCS 510.6. The second-physician requirement did not apply, even in theory, because they did not meet the permanent-survival criterion. It would not have violated 720 ILCS 510.6 if an abortionist had walked into the room and hit one of them on the head with a hammer.

Even if the case in which a human-to-be-aborted was likely past the point of “viability,” 720 ILCS 510.6 provided very weak protection. The requirements for the presence of a second physician and so forth kicked in if and only if the abortionist himself first triggered the law by making the “reasonable likelihood of sustained survival” determination. It is clearly left to the abortionist himself to decide whether an unborn child is deemed “viable” enough to have a second physician be present – – a physician whose job it would be to try to save the life of the very child that the abortionist had been hired to terminate. The weakness of the protection afforded by this approach should be evident — typically, the abortionist is going to have a strong predisposition to regard the target of the abortion as “nonviable.”

In addition, a consent decree ratified by a federal court in 1993 rendered large portions of the law unenforceable against abortion providers. “jim m” says that the consent decree did not affect the “operative” provisions but that is misleading — the consent decree blocked enforcement against abortionists, for example, of the law’s definitions of “live birth” and “born alive.” With those terms up for grabs, a prosecutor would face very high hurdles indeed. In addition, the consent decree enjoined the law’s requirement that the abortionist subsequently report on a form the basis of his judgment that a medical emergency existed, which would allow him to abort a viable child without reference to the second-physician requirement. This is not a minor point. This eliminated an effective vehicle for oversight of the abortion industry’s compliance with this statutory provision (for instance if an abortionist filed a high number of such reports). The consent decree can be downloaded from our website here: http://www.nrlc.org/ObamaBAIPA/FedCourtDecree1993BlockingIllinoisLaw.pdf

During Obama’s time in the Illinois Senate, bills (other than the BAIPA) were introduced to tighten up the regulations on post-viability abortions. He opposed those bills, just as he opposed the BAIPA. In one such instance in 2002, Obama took to the Illinois Senate floor and spoke against a bill (SB 1663) 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.”

It is also worth underscoring that at the time he led the opposition to the Illinois BAIPA, Obama did not argue that it was unnecessary or duplicative. That claim was invented much later. Obama explained in 2001, and has never recanted, that he opposed the BAIPA because it declared a “previable fetus” to be a legal person – even though the bill only applied if the baby had achieved “complete expulsion or extraction from its mother,” and was alive.

I am a critic of Roe v. Wade -– but even among persons who defend Roe v. Wade, most consider that ruling to confer a right to terminate the lives of unborn humans inside the womb, and do not believe that it diminishes the legal status of a baby who is fully born. However, there really are some people who believe that Roe v. Wade goes further, and requires that a “previable fetus” (Obama’s term) who is the subject of an abortion must remain classified as a non-person no matter where that “previable fetus” is located. In this vision, the so-called “previable fetus” who happens to be outside the mother is still in the process of being aborted, and that entire process (which Obama regards as constitutionally protected) will end only with the death of the newborn. By his actions and his explanations of those actions, Barack Obama showed himself to be among those who hold this expansive vision of the “right to abortion.” In Obama’s view, to declare the fully born and living but “previable” human to be a legal person does indeed interfere with “abortion” and does indeed conflict with the full and proper application of “Roe v. Wade.”

Thus, Obama’s commitment to defend the practice of abortion without qualification was so absolute that it led him to reflexively view the issue of babies born alive during abortions through the prism of his concept of Roe v. Wade, and worse, to conclude that a breathing, squirming, fully born pre-viable human baby is still covered by Roe v. Wade. But when he ran for higher office (U.S. Senate) in 2004, he realized how difficult that position would be to defend in the world outside the halls of the Illinois Senate. That is when he began to misrepresent the contents of the bill that he had opposed, which produced this judgment by the Annenberg FactCheck.org watchdogs: “Obama’s claim is wrong . . . The documents from NRLC support the group’s claims that Obama is misrepresenting the contents of SB 1082 [the 2003 Illinois BAIPA].”

You can best evaluate Obama’s notion of the proper scope of the “right to abortion” by reading the actual text of the bill that he killed, in the committee he chaired, on March 13, 2003. It is only three sentences long, and I have reproduced it verbatim below. As previously noted, it was virtually identical to a bill that had passed the U.S. Senate 98-0.

AN ACT concerning infants who are born alive. Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Statute on Statutes is amended by adding Section 1.36 as follows: (5 ILCS 70/1.36 new)

Sec. 1.36. Born-alive infant.

(a) In determining the meaning of any statute or of any rule, regulation, or interpretation of the various administrative agencies of this State, the words “person”, “human being”, “child”, and “individual” include every infant member of the species homo sapiens who is born alive at any stage of development.

(b) As used in this Section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after that expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

(c) Nothing in this Section [the bill] shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being born alive as defined in this Section.

Section 99. Effective date. This Act takes effect upon becoming law

.

There is a great deal of additional documentation on these matters available in a memorandum that we issued on August 18, which contains hyperlinks to primary sources, here:
http://www.nrlc.org/ObamaBAIPA/ExactBillKilledbyObama.html

Douglas Johnson
Legislative Director
National Right to Life Committee
Washington, D.C.
Legfederal // at // aol-dot-com
http://www.nrlc.org
Legfederal // at // aol-dot-com

Douglas Johnson on October 10, 2008 at 2:43 PM

jim m, I am honored that you are honored.

Before I address the points you raised, it may interest some readers here to learn that ABC Radio has refused to sell National Right to Life PAC time to broadcast the ad that is described in the post that started this thread. They refused not on grounds that there is anything inaccurate about the ad, but rather, that “This copy, while supporting aspects of a Pro-Life position, weighs more heavily towards electioneering.” As NRLC Communications Director Derrick Jones commented, “It seems that the pro-Obama leanings of the mainstream media have overflowed into their sales departments as well. To reject a political action committee’s ad because they think it is too political, borders on the absurd.” To learn more about this development, go here:
http://nrlcomm.wordpress.com/

Now, to address jim m’s points:

(a) Of course, I didn’t say anything to suggest that I thought that the federal Born-Alive Infants Protection Act (BAIPA) “had no impact.” The four key terms that the federal BAIPA construes — “person,” “human being,” “child,” and “individual” — appeared in about 15,000 sections of the U.S. Code and 57,000 sections of the Code of Federal Regulations, at the time it was enacted. Since enactment, the BAIPA was cited in directives sent out by the federal Department of Health and Human Services regarding the obligations of certain hospitals under certain federal laws. In this respect and others, enactment of the federal law was important and helpful, but it certainly was not a substitute for state laws applying the same principle to state-law questions. I was not in any way minimizing the value of the federal law, but I was correcting your earlier comment, which failed to recognize that the federal BAIPA was a definitional bill governing construction of federal laws. It is consistent with, but certainly not a substitute for, comparable state bills such as the one that Obama killed in his committee on March 13, 2003. It is important for both federal and state laws to recognize that all born-alive humans enjoy legal protection, whether or not they are born alive after abortions.

(b) You seem to be confused regarding the terminology in the Illinois post-viability abortion law. The term “viability,” in the abortion context, is generally used to indicate the point at which the baby can survive long-term outside the mother, with or without artificial assistance. 720 ILCS 510.2 of the old Illinois law explicitly defines “viability” to mean that stage of development that “in the medical judgment of the attending physician [i.e. the abortionist] based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.” “Sustained survival” means long-term survival. That point at which long-term survival becomes possible begins, nowadays, at around 22-23 weeks. In all of the discussions of this law in which I have participated, you are the first one to suggest that 720 ILCS 510 could be construed to apply before “viability,” because by its most explicit terms, it does not.

State Senator Obama understood this distinction very well. When the Illinois BAIPA came to the Illinois Senate floor for the first time, he was the only senator to vote against it. He objected to the bill NOT because he thought it was duplicative of existing law — that claim was invented long afterwards — but precisely because he understood that the bill would recognize even a pre-viable infant, born alive after an abortion, as a legally protected person.

The first time the BAIPA reached the Illinois Senate floor, on March 30, 2001, Obama was the only senator to speak against it, and he did so specificlaly on the basis that “we define [in the BAIPA] a previable fetus as a person.” Of course, the only human defined as a “person” under the BAIPA is the human who had achieved “complete expulsion or extraction” from the mother, and was alive, but that was an unimportant distinction to Obama, in the abortion context.

Live births occur a month or more before the point of “viability.” If a human infant born alive during abortions is to be regarded as a non-person simply because his underdeveloped lungs give him a very limited life span, then it would not be a homicide if an abortionist simply dispatched such a born “previable fetus” by hitting him on the head with a hammer, would it?

As recently as August 19, 2008, the Obama campaign issued a memo on this issue in which they singled out for condemnation this clause from the original 2001 Illinois BAIPA: “(c) A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.” The August 19 Obama document labeled that sentence as “Language Clearly Threatening Roe.” Perhaps you can explain to us why Obama believes that sentence threatens Roe v. Wade. In any event, that “immediate protection” clause was stricken from the bill at the committee meeting over which Obama presided on March 13, 2003, and replaced with the so-called “neutrality clause” copied from the federal law. Then Chairman Obama led all his committee Democrats in voting down the bill, anyway.

(c) Aside from the fact that 720 ILCS 510 has no application whatever before “viability,” it has another inherent weakeness in that the ostensibly protective requirements can only be triggered by the discretionary declaration of the abortionist himself — who, after all, has been hired to terminate the unborn human. The provisions of the consent decree add yet another set of hurdles to anyone actually attempting to endorce the law. Under the decree, the abortionist can waive the requirements by declaring an emergency, and cannot be required to describe the basis for that judgment. In addition, the prosecutor is forbidden, by the consent decree, from bringing to bear the key definitions in the law, including the definition of “born alive.” While the decree leaves in place the form of a requirement, it removes the tools that prosecutors would need to make that “requirement” meaningful. 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.”

(d) I do not know what opinion, if any, the attorney general of Illinois expressed about the Illinois BAIPA at the time that Obama served in the legislature. I have certainly never seen anything to suggest that he opposed it. In my view, there was ample evidence that some people were operating on the understanding that a live-born, squirming human infant was to be treated as something other than a human person, if that infant had been born alive as part of an abortion procedure, and there was need to clarify the law on that issue. The official report of the Judiciary Committee of the U.S. House of Representatives provides a good distillation of the justifications for such legislation, and the reasons applied with equal force to federal and state law. The report is here:
http://www.nrlc.org/Federal/Born_Alive_Infants/HJCreportBAIPA2000.pdf

Douglas Johnson
Legislative Director
National Right to Life Committee
Washington, D.C.

Douglas Johnson on October 10, 2008 at 7:40 PM