From the National Right to Life Committee (NRLC)
Federal Legislative Office
Wednesday, March 13, 2002, 9 a.m. ET

For further information:
Douglas Johnson, Legislative Director
(202) 626-8820, legfederal@aol.com

Does the Associated Press really think that a live-born human infant is still a "fetus"?

On Tuesday evening (March 12), the U.S. House of Representatives passed the Born-Alive Infants Protection Act (H.R. 2175) on a voice vote.  This is a simple, three-paragraph bill that would codify, for federal law purposes, the traditional definition of "born alive."  Specifically, under the bill, the terms "person," "human being," "child," and "individual," whenever they appear in federal laws or regulations, will be construed to include "every infant member of the species homo sapiens who is born alive."  The term "born alive" is then defined as "complete expulsion or extraction from his or her mother," followed by a heartbeat, respiration, or movement of voluntary muscles.

(The complete text of the bill appears at the bottom of this e-mail.)

This is the legal definition already incorporated in the laws of most states.

At 7:39 p.m. Tuesday, the Associated Press bureau in Washington sent out a dispatch that began, "The House voted Tuesday to define a fetus that is fully outside a woman's body as having been 'born alive,' which would give the fetus full legal protection."  The term "fetus" was employed repeatedly throughout the rest of the dispatch.

Quickly, I and at least one other reader [John Cusey, staff director of the House Pro-Life Caucus, 202-225-7669) pointed out to the AP editor on duty that "fetus" is not an appropriate or accurate term to apply to a human infant who is entirely born and alive.  If an infant is born alive prematurely, then the proper term would be "premature infant" or "premature baby," not "fetus."

Sometimes induction of labor is used as a method of abortion, and sometimes this results in a live birth.  This is sometimes referred to as a "live birth abortion."  On occasion, other abortion methods also result in live births.  But a premature infant is a premature infant -- and a legally protected person -- regardless of how he or she reached that state.

Regrettably, the AP did not correct its error.  Instead, AP editors compounded the original error by transmitting updates that contained this statement:  "The legislation is aimed at an abortion procedure critics call 'partial-birth' in which a fetus is partially delivered before being destroyed.  Thirty states and the District of Columbia already have laws against the procedure."  (The text of the version of the AP story transmitted at 3:19 a.m. Wednesday is reproduced below.)

In fact, the Born-Alive Infants Protection Act does not restrict partial-birth abortion abortion.  In a partial-birth abortion, the fetus/baby is mostly delivered, but the head remains in the womb while the skull is punctured -- hence the name, PARTIAL-birth.  The fetus/baby destroyed in a PARTIAL-birth abortion has not achieved the "complete extraction or expulsion from his or her mother" required to be "born alive" under H.R. 2175.  Moreover, the state/D.C. laws that the AP refers to are laws that define "live birth," not laws restricting partial-birth abortion.  According to the House Judiciary subcommittee that reported H.R. 2175, 41 states and D.C. have codified the definition of "live birth" for their state-law purposes, and of these, 30 states and D.C. have codified definitions virtually identical to those contained in H.R. 2175.   (D.C. has never enacted a restriction on partial-birth abortion.) 

A few observations:

-- Although it is not entirely clear, it appears that the AP editors may believe that the term "fetus" is appropriate because some live births occur during abortions.  Indeed, clarifying the legal status of these live-born aborted infants was one reason cited by backers as to why the bill is worthwhile (although certainly not the only reason).  But if the AP editors really believe that a living, breathing baby, completely outside the mother, is still a "fetus," merely because an abortion has preceded the live birth, then that provides a good illustration of the mindset that makes the bill necessary.

-- At a House Judiciary subcommittee hearing on the Born-Alive Infants Protection Act in 2000, Gianna Jessen, a 23-year-old woman who was born alive during an attempted saline-injection abortion, testified for the bill.  (See www.house.gov/judiciary/jess0720.htm ) Under traditional legal and medical usage, Ms. Jessen was a "premature infant" as soon as she was outside her mother and breathing.  In the new AP usage, however, it appears that Ms. Jessen was still a "fetus" even as she was rushed to the hospital in an ambulance and as medical personnel struggled successfully to save her life.  Which raises the question:  Under the new AP definition, exactly when did Ms. Jessen STOP being a "fetus"?  Or is Ms. Jessen a "fetus" forever in the AP's eyes, since her birth resulted from an abortion?

-- The AP's references to "fetus" are glosses.  H.R. 2175 [text below] makes no reference whatever to the unborn child or "fetus," except the following rule of construction:  "Nothing in this section 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."  In other words, the bill changes nothing with respect to the legal status of unborn or partially born humans.  The bill is concerned exclusively with the legal status of fully born human babies.

-- The Senate already approved identical legislation, as Senate amendment no. 814 (Sen. Santorum) to the "Patients' Bill of Rights" (S. 1052), 98-0 (roll call 208), on June 29, 2001.  However, the "Patients' Bill of Rights" itself is tied up in negotiations on other issues.

[The memo from Douglas Johnson ends here.  The complete text of the AP story follows, followed by the complete text of H.R. 2175.  For additional information on the Born-Alive Infants Protection Act, see www.nrlc.org/Federal/Born_Alive_Infants/index.html  ]

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House approves bill to give legal protection to some fetuses after abortion

Wed Mar 13, 3:19 AM ET By JESSE J. HOLLAND, Associated Press Writer

WASHINGTON - A fetus outside a woman's body that has a heartbeat or is breathing on its own would be considered "born alive" and given legal protection under a bill approved by the House.

The Born-Alive Infants Protection Act, approved by voice vote Tuesday night, would amend the legal definition of "person," "human being," "child" and "individual" to include a fetus that is either breathing or has a heartbeat once out of the womb as part of an abortion procedure.

Rep. Jerrold Nadler, D-N.Y., called the bill unnecessary but said he and other Democrats would support it anyway."The courts have been clear," Nadler said. "There is no such thing as a right to a live-birth abortion. A baby born alive is a baby, a human being under the terms of the law in all 50 states and the District of Columbia. This bill merely restates that, so we have no problem with it."

The legislation is aimed at an abortion procedure critics call "partial-birth" in which a fetus is partially delivered before being destroyed. Thirty states and the District of Columbia already have laws against the procedure. "It's long overdue that this become law," said Rep. Steve Chabot, R-Ohio, who wrote the legislation. "It just seems like common sense that when a baby is born, no matter what the circumstances of the birth may have been, even if it was a botched abortion, that the child be treated with basic human dignity."

Unlike a version that passed the House last year, this year's bill makes clear that it does not apply to fetuses "at any point prior to being 'born alive.'"

Many Democrats originally opposed the measure, saying it was an attempt to chip away at the Supreme Court's 1973 Roe v. Wade decision that legalized abortion, but that section makes it clear that it does not, Nadler said. "Whatever concerns that someone might have had that this bill might undermine Roe v. Wade have been eliminated," he said.

An identical bill, sponsored by Sen. Rick Santorum, R-Pa., is pending in the Senate.

The bill number is H.R. 2175

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H.R. 2175
A BILL

To protect infants who are born alive. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the `Born-Alive Infants Protection Act of 2001'.SEC. 2. DEFINITION OF BORN-ALIVE INFANT.

(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:`Sec. 8. `Person', `human being', `child', and `individual' as including born-alive infant

`(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.

`(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 his or her mother of that member, at any stage of development, who after such 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 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.

'.(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by adding at the end the following new item:

`8. `Person', `human being', `child', and `individual' as including born-alive infant.'.

Union Calendar No. 108