[House Report 107-186]
[From the U.S. Government Printing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    107-186

======================================================================



 
               BORN-ALIVE INFANTS PROTECTION ACT OF 2001

                                _______
                                

 August 2, 2001.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 2175]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2175) to protect infants who are born alive, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     3
Hearings.........................................................    14
Committee Consideration..........................................    14
Vote of the Committee............................................    15
Committee Oversight Findings.....................................    15
Performance Goals and Objectives.................................    15
New Budget Authority and Tax Expenditures........................    16
Congressional Budget Office Cost Estimate........................    16
Constitutional Authority Statement...............................    17
Section-by-Section Analysis and Discussion.......................    17
Changes in Existing Law Made by the Bill, as Reported............    17
Markup Transcript................................................    18
Additional Views.................................................    33
Dissenting Views.................................................    37

                          Purpose and Summary

    It has long been an accepted legal principle that infants 
who are born alive, at any stage of development, are persons 
who are entitled to the protections of the law. But recent 
changes in the legal and cultural landscape have brought this 
well-settled principle into question.
    In Stenberg v. Carhart,\1\ for example, the United States 
Supreme Court struck down a Nebraska law banning partial-birth 
abortion, a procedure in which an abortionist delivers an 
unborn child's body until only the head remains inside of the 
womb, punctures the back of the child's skull with scissors, 
and sucks the child's brains out before completing the 
delivery. What was described in Roe v. Wade as a right to abort 
``unborn children'' has thus been extended by the Court to 
include the violent destruction of partially-born children just 
inches from complete birth.
---------------------------------------------------------------------------
    \1\ 530 U.S. 914 (2000).
---------------------------------------------------------------------------
    The Carhart Court considered the location of an infant's 
body at the moment of death during a partial-birth abortion--
delivered partly outside the body of the mother--to be of no 
legal significance in ruling on the constitutionality of the 
Nebraska law. Instead, implicit in the Carhart decision was the 
pernicious notion that a partially-born infant's entitlement to 
the protections of the law is dependent upon whether or not the 
partially-born child's mother wants him or her.
    Following Stenberg v. Carhart, on July 26, 2000, the United 
States Court of Appeals for the Third Circuit made that point 
explicit in Planned Parenthood of Central New Jersey v. 
Farmer,\2\ in the course of striking down New Jersey's partial-
birth abortion ban. According to the Third Circuit, under Roe 
and Carhart, it is ``nonsensical'' and ``based on semantic 
machinations'' and ``irrational line-drawing'' for a 
legislature to conclude that an infant's location in relation 
to his or her mother's body has any relevance in determining 
whether that infant may be killed. Instead, the Farmer Court 
repudiated New Jersey's classification of the prohibited 
procedure as being a ``partial birth,'' and concluded that a 
child's status under the law, regardless of the child's 
location, is dependent upon whether the mother intends to abort 
the child or to give birth. Thus, the Farmer Court stated that, 
in contrast to an infant whose mother intends to give birth, an 
infant who is killed during a partial-birth abortion is not 
entitled to the protections of the law because ``[a] woman 
seeking an abortion is plainly not seeking to give birth.'' \3\
---------------------------------------------------------------------------
    \2\ 220 F.3d 127 (3rd Cir. 2000).
    \3\ Id. at 143.
---------------------------------------------------------------------------
    The logical implications of Carhart and Farmer are both 
obvious and disturbing. Under the logic of these decisions, 
once a child is marked for abortion, it is wholly irrelevant 
whether that child emerges from the womb as a live baby. That 
child may still be treated as though he or she did not exist, 
and would not have any rights under the law--no right to 
receive medical care, to be sustained in life, or to receive 
any care at all. And if a child who survives an abortion and is 
born alive would have no claim to the protections of the law, 
there would, then, be no basis upon which the government may 
prohibit an abortionist from completely delivering an infant 
before killing it or allowing it to die. The ``right to 
abortion,'' under this logic, means nothing less than the right 
to a dead baby, no matter where the killing takes place.
    Credible public testimony received by the Subcommittee on 
the Constitution of the Committee on the Judiciary indicates 
that this is, in fact, already occurring. According to 
eyewitness accounts, ``induced-labor'' or ``live-birth'' 
abortions are indeed being performed, resulting in live-born 
premature infants who are simply allowed to die, sometimes 
without the provision of even basic comfort care such as warmth 
and nutrition.
    The purposes of H.R. 2175, the ``Born-Alive Infants 
Protection Act of 2001'' are:

        (1) Lto repudiate the flawed notion that a child's 
        entitlement to the protections of the law is dependent 
        upon whether that child's mother or others want him or 
        her;

        (2) Lto repudiate the flawed notion that the right to 
        an abortion means the right to a dead baby, regardless 
        of where the killing takes place;

        (3) Lto affirm that every child who is born alive--
        whether as a result of induced abortion, natural labor, 
        or caesarean section--bears an intrinsic dignity as a 
        human being which is not dependent upon the desires, 
        interests, or convenience of any other person, and is 
        entitled to receive the full protections of the law; 
        and

        (4) Lto establish firmly that, for purposes of Federal 
        law, the term ``person'' includes an infant who is 
        completely expelled or extracted from his or her mother 
        and who is alive, regardless of whether or not the 
        baby's development is believed to be, or is in fact, 
        sufficient to permit long-term survival, and regardless 
        of whether the baby survived an abortion.

                Background and Need for the Legislation

            I. Erosion of Legal Rights of Born-Alive Infants

    It has long been accepted as a legal principle that infants 
who are born alive are persons who are entitled to the 
protections of the law, and that a live birth occurs whenever 
an infant, at any stage of development, is expelled from the 
mother's body and displays any of several specific signs of 
life--breathing, a heartbeat, and/or definite movement of 
voluntary muscles. Many States have statutes that, with some 
variations, explicitly enshrine this principle as a matter of 
State law, and Federal courts have recognized the principle in 
interpreting Federal criminal laws. Recent changes in the legal 
and cultural landscape appear, however, to have brought this 
well-settled principle into question.
A. The Supreme Court's Recent Partial-Birth Abortion Decision Erodes 
        the Born-Alive Principle and Creates Confusion Regarding 
        Infanticide and the Legal Status of Abortion Survivors
    On June 28, 2000, in Stenberg v. Carhart,\4\ the United 
States Supreme Court struck down a Nebraska law banning 
partial-birth abortion, a procedure in which an abortionist 
dilates a pregnant woman's cervix, delivers the unborn child's 
body until only the head remains inside of the mother, 
punctures the back of the child's skull with scissors, and 
sucks the child's brains out before completing the delivery. It 
is a matter of public record that this grisly abortion 
procedure is extremely painful to the child, is never medically 
necessary to preserve the life or health of the mother, and 
indeed is dangerous to women who undergo it. In the words of 
the American Medical Association, partial-birth abortion is 
``not medically indicated'' in any situation and is ``not good 
medicine.'' \5\
---------------------------------------------------------------------------
    \4\ 530 U.S. 914 (2000).
    \5\ Letter from P. John Seward, M.D., Executive Vice President, 
American Medical Association, to U.S. Sen. Rick Santorum (May 19, 1997) 
(on file with the Constitution Subcomm. of the House Comm. on the 
Judiciary).
---------------------------------------------------------------------------
    Notwithstanding the compelling record against partial-birth 
abortion, the Carhart Court held that the abortion right 
created in Roe v. Wade encompasses the right to partial-birth 
abortion. That is, what was described in Roe v. Wade as a right 
to abort ``unborn children'' has now been extended by the Court 
to include the brutal killing of partially-born children just 
inches from birth. The Carhart Court based its bizarre 
conclusion on claims by abortionists that partially delivering 
an infant before killing it is safer for the mother because it 
requires less ``instrumentation'' in the birth canal and 
reduces the risk of complications from ``retained fetal body 
parts.'' \6\ As discussed below, these same claims would 
support an abortionist's argument that fully delivering an 
infant before killing it is safer for the mother and is, 
therefore, constitutionally protected.
---------------------------------------------------------------------------
    \6\ See Carhart, 530 U.S. at 926, 928-31.
---------------------------------------------------------------------------
    The Carhart Court thus thwarted Nebraska's efforts (and the 
efforts of numerous other States) to, in the words of Justice 
Thomas in dissent, ``prohibit[] a procedure that approaches 
infanticide, and thereby dehumanizes the fetus and trivializes 
human life.'' \7\ The result of the Court's decision, as 
Justice Scalia noted in dissent, ``is to give live-birth 
abortion free rein,'' and to endorse the absurd notion that 
``the Constitution of the United States, designed, among other 
things, `to establish Justice, insure domestic Tranquility, . . 
. and secure the Blessings of Liberty to ourselves and our 
Posterity,' prohibits the States from simply banning this 
visibly brutal means of eliminating our half-born posterity.'' 
\8\
---------------------------------------------------------------------------
    \7\ Carhart, 1006-07 (Thomas, J., dissenting). Justice Thomas noted 
that ``[t]he AMA has recognized that this procedure is `ethically 
different from other destructive abortion techniques because the fetus, 
normally twenty weeks or longer in gestation, is killed outside the 
womb. The ``partial birth'' gives the fetus an autonomy which separates 
it from the right of the woman to choose treatments for her own body.' 
'' Id. (quoting AMA Board of Trustees Factsheet on H.R. 1122 (June 
1997), in App. to Brief for Association of American Physicians and 
Surgeons et al. as Amici Curiae 1).
    \8\ Id. at 953 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    The Carhart Court considered the location of an infant's 
body at the moment of death during a partial-birth abortion--
delivered partly outside the body of the mother--to be of no 
legal significance in ruling on the constitutionality of the 
Nebraska law. Indeed, two members of the majority, Justices 
Stevens and Ginsburg, went so far as to say that it was 
``irrational'' for the Nebraska legislature to take the 
location of the infant at the point of death into account.\9\ 
Instead, implicit in the Carhart decision was the pernicious 
notion that a partially-born infant's entitlement to the 
protections of the law is dependent upon whether or not the 
partially-born child's mother wants him or her.
---------------------------------------------------------------------------
    \9\ See id. at 946-947 (Stevens, J., concurring) (stating that 
``the notion that [partial-birth abortion] is more akin to infanticide 
than [any other abortion procedure] . . . is simply irrational'').
---------------------------------------------------------------------------
    Following Stenberg v. Carhart, on July 26, 2000, the United 
States Court of Appeals for the Third Circuit made that point 
explicit in Planned Parenthood of Central New Jersey v. 
Farmer,\10\ in the course of striking down New Jersey's 
partial-birth abortion ban. According to the Third Circuit, 
under Roe and Carhart, it is ``nonsensical'' and ``based on 
semantic machinations'' and ``irrational line-drawing'' for a 
legislature to conclude that an infant's location in relation 
to his or her mother's body has any relevance in determining 
whether that infant may be killed.\11\
---------------------------------------------------------------------------
    \10\ 220 F.3d 127 (3rd Cir. 2000).
    \11\ See id. at 143-44.
---------------------------------------------------------------------------
    Instead, the Farmer Court repudiated New Jersey's 
classification of the prohibited procedure as being a ``partial 
birth,'' and concluded that a child's status under the law, 
regardless of his or her location, is dependent upon whether 
the mother intends to abort the child or to give birth. The 
Farmer Court stated that, in contrast to an infant whose mother 
intends to give birth, an infant who is killed during a 
partial-birth abortion is not entitled to the protections of 
the law because ``[a] woman seeking an abortion is plainly not 
seeking to give birth.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 143.
---------------------------------------------------------------------------
    The logical implications of Stenberg and Farmer are both 
obvious and disturbing. If the right to abortion entails the 
right to kill without regard to whether the child remains in 
the mother's womb, and a child's entitlement to the protections 
of the law depends upon whether or not the child's mother 
intends to abort the child or give birth, it follows that 
infants who are marked for abortion but somehow survive and are 
born alive have no legal rights under the law--no right to 
receive medical care, to be sustained in life, or receive any 
care at all.
    Indeed, that is precisely where the abortion right has 
taken the law in South Africa. Under guidelines promulgated by 
the South African Department of Health, babies who survive 
abortions are to be left to die even if they are gasping for 
breath and struggling to survive.\13\ The guidelines state that 
``if an infant is born who gasps for breath, it is advised that 
the foetus does not receive any resuscitation measures.'' \14\ 
Many doctors and nurses in South Africa have expressed outrage 
at the guidelines. One female physician in KwaZulu-Natal said 
that ``[i]t is inhuman and against all my principles. . . . No 
way will I stand by and do nothing to resuscitate a child. It 
is impossible and we should not be put in such a position.'' 
\15\
---------------------------------------------------------------------------
    \13\ See Angella Johnson, Abortion babies ``should be left to 
die'', Africa News Service, Mar. 3, 1997.
    \14\ Id.
    \15\ Id.
---------------------------------------------------------------------------
    A debate over this same issue is also currently taking 
place in Australia. Some medical experts contend that babies 
who survive abortions have the right to medical attention from 
a physician, just as the elderly and terminally ill do.\16\ 
Other experts contend that abortion survivors should not 
receive medical attention.\17\ For example, the chairman of 
Family Planning Australia, Gab Kovacs, contends that babies who 
survive abortions ``should be left to succumb in peace, on a 
cot in a back room, for example.'' \18\
---------------------------------------------------------------------------
    \16\ See Victoria Button, Experts Divided on Foetus Protocols, The 
Age, Apr. 12, 2000.
    \17\ See id.
    \18\ Id.
---------------------------------------------------------------------------
    Moreover, if, under Carhart and Farmer, a child who 
survives an abortion and is born alive is not entitled to the 
protections of the law simply because the child's mother did 
not intend to give birth, then there is no basis--other than 
``semantic machinations'' and ``irrational line-drawing'' based 
on the infant's ``born'' or ``unborn'' status, bases which the 
Third Circuit rejected in Farmer--upon which the government may 
prohibit an abortionist from completely delivering an infant 
before killing it or allowing it to die. Under the logic of 
these decisions, if a woman decides to abort her unborn child, 
and the abortionist decides that the health risks to the woman 
are reduced by his not stabbing the child in the back of the 
skull in order to kill the child before completing delivery--
the risk reduction occurring because surgical instruments would 
not be inserted into the birth canal, and the risk of fetal 
part retention would be reduced--the abortionist may simply 
completely deliver the child before killing him or her. The 
right to abortion created in Roe thus appears to encompass, at 
least in the Supreme Court's view, the right to infanticide.
B. The ``Viability'' Doctrine in the Supreme Court's Abortion 
        Jurisprudence Has Eroded the Born-Alive Principle and Created 
        Confusion Regarding the Legal Status of Premature Infants Who 
        Survive Abortions
    The ``viability'' doctrine in the Supreme Court's decisions 
in Planned Parenthood v. Casey \19\ and Carhart has also 
created confusion regarding the legal status of premature 
infants who survive abortions but have little or no chance of 
sustained survival. In Casey, the Court reaffirmed the right of 
a woman to abort her unborn child, and adhered to the notion 
that the government's interest in protecting the unborn child 
is related to ``viability,'' or the child's capacity for 
sustained survival independent of the mother, with or without 
medical assistance. The Carhart Court also relied upon the 
viability doctrine in striking down Nebraska's partial-birth 
abortion ban.
---------------------------------------------------------------------------
    \19\ 505 U.S. 833 (1992).
---------------------------------------------------------------------------
    The Court's reliance upon the viability concept in the 
abortion context appears to have caused some to wrongly 
conclude that premature infants who survive abortions are not 
legally-protected persons if they have little or no chance of 
sustained survival. Indeed, that appears to have been the 
position of opponents of the Born-Alive Infants Protection Act 
of 2000, H.R. 4292, which was offered in the 106th Congress. On 
July 20, 2000, for example, the National Abortion and 
Reproductive Rights Action League (``NARAL'') issued a press 
release criticizing H.R. 4292 because, in NARAL's view, 
extending legal personhood to premature infants who are born 
alive after surviving abortions constitutes an ``assault'' on 
Roe v. Wade.\20\ According to NARAL, by seeking to provide 
legal rights to born-alive infants ``at any stage of 
development,'' including those not yet considered to have 
achieved ``viability,'' the proponents of H.R. 4292 were 
``directly contradicting one of Roe's basic tenets.'' \21\ It 
will come as a surprise to many that one of Roe's `basic 
tenets'' is that a premature baby who is marked for abortion, 
but somehow survives and is born alive, is not a person that 
the law may protect.
---------------------------------------------------------------------------
    \20\ NARAL Statement: Roe v. Wade Faces Renewed Assault in the 
House, Anti-Choice Lawmakers Hold Hearing on So-Called ``Born-Alive 
Infants Protection Act'', July 20, 2000 (on file with the Subcomm. on 
the Constitution of the House Comm. on the Judiciary). On June 13, 
2001, NARAL released a statement in anticipation of the introduction of 
H.R. 2175: ``Consistent with our position last year, NARAL does not 
oppose passage of the Born Alive Infants Protection Act. Last year's 
Committee and floor debate served to clarify the bill's intent and 
assure us that it is not targeted at Roe v. Wade or a woman's right to 
choose.'' Statement of NARAL On The Born Alive Infants Protection Act, 
June 13, 2001 (on file with the Subcomm. on the Constitution of the 
House Comm. on the Judiciary).
    \21\ Id.
---------------------------------------------------------------------------
    Rep. Stephanie Tubbs Jones took a similar position during 
the Subcommittee on the Constitution's hearing on H.R. 4292. 
According to Rep. Jones, providing legal personhood to 
premature infants who survive abortions ``is an attempt to do 
what the U.S. Supreme Court has strictly forbidden over and 
over--it unduly restricts a woman's right to terminate a 
pregnancy.'' \22\ H.R. 4292 unduly restricted a woman's right 
to choose, Rep. Jones contended, by extending protection to 
fully born, premature infants in ``direct contravention of Roe 
v. Wade and subsequent Supreme Court rulings.'' \23\
---------------------------------------------------------------------------
    \22\ Born-Alive Infants Protection Act: Hearings on H.R. 4292 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 20, 2000 (statement of Rep. Stephanie 
Tubbs Jones).
    \23\ Id.
---------------------------------------------------------------------------
    The question of whether a live birth has occurred does not, 
however, depend upon whether an infant is sufficiently 
developed for sustained survival. The definition of ``born 
alive'' contained in H.R. 2175 was derived from a model 
definition of ``live birth'' that was promulgated by the World 
Health Organization in 1950 and is, with minor variations, 
currently codified in thirty States and the District of 
Columbia.\24\ The Illinois statute provides a model of this 
definition:
---------------------------------------------------------------------------
    \24\ See Alaska Stat. Sec. 18.50.950; Ariz. Rev. Stat. Ann. 
Sec. 36-301; 17 Ca. Adc. Sec. 915; Fla. Stat. Ann. Sec. 382.002; Ga. 
Code Ann. Sec. 31-10-1; Haw. Rev. Stat. Sec. 338-1; Idaho Code Sec. 39-
241; Ill. Ann. Stat. Ch. 410, Sec. 535/1; Kan. Stat. Ann. Sec. 65-2401; 
Ky. Rev. Stat. Ann. Sec. 213.011; Me. Rev. Stat. Ann. tit. 22, 
Sec. 1595; Md. Code Ann., Health-Gen. Sec. 4-201; Mo. Rev. Stat. 
Sec. 193.015; N.J. Stat. Ann. Sec. 26:8-1; N.M. Stat. Ann. Sec. 24-14-
2; N.Y. Pub. Health Law Sec. 4130; N.D. Cent. Code Sec. 23-02.1-01; 
Ohio Rev. Code Ann. Sec. 3705.01; Okla. Stat. Ann. tit. 63, Sec. 1-301; 
Or. Rev. Stat. Sec. 432.005; R. I. Gen. Laws Sec. 23-3-1; S.D. Codified 
Laws Ann. Sec. 34-25-1.1; Tenn. Code Ann. Sec. 68-3-102; Va. Code Ann. 
Sec. 32.1-249; W. Va. Code Sec. 16-5-1; Wyo. Stat. Sec. 35-1-401; D.C. 
Code Sec. 6-201(9); Minn. R. 4600.0100(Subp. 4); N.C. Admin. Code tit. 
15A, r. 19H.0102(5); S.C. Admin. Code 61-19(1)(f); 25 Tex. Admin. Code 
Sec. 181.1(16).

        Live birth means the complete expulsion or extraction 
        from its mother of a product of human conception, 
        irrespective of the duration of pregnancy, which after 
        such separation breathes or shows any other evidence of 
        life such as beating of the heart, pulsation of the 
        umbilical cord, or definite movement of voluntary 
        muscles, whether or not the umbilical cord has been cut 
        or the placenta is attached.\25\
---------------------------------------------------------------------------
    \25\ Ill. Ann. Stat. Ch. 410, Sec. 535/1 (emphasis added).

Pennsylvania's statute includes a similar but somewhat broader 
definition: ``Live birth means the expulsion or extraction from 
its mother of a product of conception, irrespective of the 
period of gestation, which shows any evidence of life at any 
moment after expulsion or extraction.'' \26\
---------------------------------------------------------------------------
    \26\ 35 Pa. Const. Stat. Sec. 450.105.
---------------------------------------------------------------------------
    The reason these statutes do not define a live birth as 
dependent upon the infant's gestational age is fairly obvious. 
Many infants are born alive at 20 to 22 weeks and survive for 
hours, even though their lung capacity typically does not 
permit sustained survival. Under the prevailing standards of 
medical care, such infants are understood to be born-alive 
persons and are treated as such, even though they may only live 
for a short time. They are, for example, treated humanely, 
given comfort care, and issued a death certificate. And an 
individual could not escape criminal prosecution for entering a 
neonatal intensive care unit and murdering one of these infants 
simply because the infant will only survive for a short time.
    Many infants are also born-alive at 23 weeks, and currently 
have at least a 39% chance of sustained survival, and at 24 
weeks with a greater than 50% chance of sustained survival, 
with the odds improving all of the time. Determining whether 
any given one of these children should be treated as a born-
alive person, on the basis of his or her ultimate viability, 
could only be accomplished retrospectively, by looking at 
whether the child actually survived. The law has avoided this 
conundrum by defining a live birth without regard to the 
gestational age of the child.
C. Princeton University Bioethicist Peter Singer Advocates Legal 
        Killing of Disabled or Unhealthy Newborn Infants
    The principle that born-alive infants are entitled to the 
protection of the law is also being questioned at one of 
America's most prestigious universities. In his 1993 book 
Practical Ethics, Princeton University Bioethicist Peter Singer 
argues that parents should have the option to kill disabled or 
unhealthy newborn babies for a certain period after birth. 
According to Professor Singer, ``a period of 28 days after 
birth might be allowed before an infant is accepted as having 
the same right to live as others.''
    This contention is based on Professor Singer's view that 
the life of a newborn baby is ``of no greater value than the 
life of a nonhuman animal at a similar level of rationality, 
self-consciousness, awareness, capacity to feel, etc.'' 
According to Professor Singer, ``killing a disabled infant is 
not morally equivalent to killing a person. Very often it is 
not wrong at all.''

 II. Evidence of the Moral and Legal Confusion Regarding the Status of 
                           Live-Born Infants

A. ``Live-Birth'' Abortions
    The legal and moral confusion that flows from these 
pernicious ideas is well illustrated by disturbing events that 
are alleged to have occurred at Christ Hospital in Oak Lawn, 
Illinois. Two nurses from the hospital's delivery ward, Jill 
Stanek and Allison Baker (who is no longer employed by the 
hospital), testified before the Subcommittee on the 
Constitution that physicians at Christ Hospital have performed 
numerous ``induced labor'' or ``live-birth'' abortions, a 
procedure in which physicians use drugs to induce premature 
labor and deliver unborn children, many of whom are sometimes 
still alive, and then simply allow those who are born alive to 
die.\27\
---------------------------------------------------------------------------
    \27\ See Born-Alive Infants Protection Act: Hearings on H.R. 2175 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 107th Cong., July 12, 2001 (statement of Jill L. Stanek, 
R.N.); Born-Alive Infants Protection Act: Hearings on H.R. 4292 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Cong., July 20, 2000 (statement of Allison Baker, R.N., B.S.N.). 
On July 20, 2000, during the 106th Congress, the Subcommittee on the 
Constitution held a hearing on the H.R. 4292, the ``Born-Alive Infants 
Protection Act of 2000,'' at which Mrs. Stanek and Mrs. Baker were 
witnesses. On July 12, 2001, the Subcommittee held a hearing on H.R. 
2175, the ``Born-Alive Infants Protection Act of 2001,'' at which Mrs. 
Stanek was a witness. Mrs. Baker's testimony submitted to the 
Subcommittee during the 106th Congress was entered into the record 
during the Subcommittee's hearing on H.R. 2175.
---------------------------------------------------------------------------
    According to medical experts, this procedure is 
appropriately used only in situations in which an unborn child 
has a fatal deformity, such as anencephaly or lack of a brain, 
and infants with such conditions who are born alive are given 
comfort care (including warmth and nutrition) until they die, 
which, because of the fatal deformity, is typically within a 
day or two of birth. According to the testimony of Mrs. Stanek 
and Mrs. Baker, however, physicians at Christ Hospital have 
used the procedure to abort healthy infants and infants with 
non-fatal deformities such as spina bifida and Down 
Syndrome.\28\ Many of these babies have lived for hours after 
birth, with no efforts made to determine if any of them could 
have survived with appropriate medical assistance.\29\ The 
nurses have also witnessed hospital staff taking many of these 
live-born babies into a ``soiled utility closet'' where the 
babies would remain until death.\30\ Comfort care, the nurses 
say, was only provided sporadically.\31\
---------------------------------------------------------------------------
    \28\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
    \29\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
    \30\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
    \31\ See Statement of Jill L. Stanek, R.N., supra; Statement of 
Allison Baker, R.N., B.S.N., supra.
---------------------------------------------------------------------------
    Mrs. Stanek, who testified in front of the Subcommittee on 
the Constitution during its hearing on H.R. 4292 and H.R. 2175, 
testified regarding numerous live-birth abortions that she 
alleges have occurred at Christ Hospital. The first she 
described as follows:

        One night, a nursing co-worker was taking an aborted 
        Down's Syndrome baby who was born alive to our Soiled 
        Utility Room because his parents did not want to hold 
        him, and she did not have time to hold him. I could not 
        bear the thought of this suffering child dying alone in 
        a Soiled Utility Room, so I cradled and rocked him for 
        the 45 minutes that he lived. He was 21 to 22 weeks 
        old, weighed about \1/2\ pound, and was about 10 inches 
        long. He was too weak to move very much, expending any 
        energy he had trying to breathe. Toward the end he was 
        so quiet that I couldn't tell if he was still alive 
        unless I held him up to the light to see if his heart 
        was still beating through his chest wall. After he was 
        pronounced dead, we folded his little arms across his 
        chest, wrapped him in a tiny shroud, and carried him to 
        the hospital morgue where all of our dead patients are 
        taken.\32\
---------------------------------------------------------------------------
    \32\ Statement of Jill L. Stanek, R.N., supra.

    Mrs. Stanek testified about another aborted baby who was 
thought to have had spina bifida, but was delivered with an 
intact spine.\33\ On another occasion, an 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.'' \34\ Mrs. Stanek further testified regarding a live-
birth abortion that was performed on a healthy infant at more 
than 23 weeks gestation, a stage of development at which 
premature infants have an almost 40% chance of survival.\35\ 
According to Mrs. Stanek,
---------------------------------------------------------------------------
    \33\ Id.
    \34\ Id.
    \35\ Id.

        [t]he baby was born alive. If the mother had wanted 
        everything done for her baby, there would have been a 
        neonatologist, pediatric resident, neonatal nurse, and 
        respiratory therapist present for the delivery, and the 
        baby would have been taken to our Neonatal Intensive 
        Care Unit for specialized care. Instead, the only 
        personnel present for this delivery were an obstetrical 
        resident and my co-worker. After delivery the baby, who 
        showed early signs of thriving, was merely wrapped in a 
        blanket and kept in the Labor & Delivery Department 
        until she died 2\1/2\ hours later.\36\
---------------------------------------------------------------------------
    \36\ Id.

    Mrs. Baker testified regarding three live-birth abortions 
she witnessed at Christ Hospital. According to Mrs. Baker, she 
was informed about the live-birth abortions, described by the 
hospital as ``therapeutic abortions,'' when she began working 
in the high risk labor and delivery unit at Christ Hospital in 
August 1998. She described her first encounter with this 
---------------------------------------------------------------------------
procedure as follows:

        The first occurred on a day shift. I 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. The fetus was visibly alive, 
        and was gasping for breath. I left to find the nurse 
        who was caring for the patient and this fetus. When I 
        asked her about the fetus, she said that she was so 
        busy with the mother that she didn't have time to wrap 
        and place the fetus in a warmer, and she asked if I 
        would do that for her. Later I found out that the fetus 
        was 22 weeks old, and had undergone a therapeutic 
        abortion because it had been diagnosed with Down's 
        Syndrome. I did wrap the fetus and place him in a 
        warmer and for 2\1/2\ hours he maintained a heartbeat, 
        and then finally expired.\37\
---------------------------------------------------------------------------
    \37\ Statement of Allison Baker, R.N., B.S.N., supra.

    The second induced-labor abortion Mrs. Baker witnessed 
involved a 20 week-old fetus with spina bifida who was born 
---------------------------------------------------------------------------
alive. According to Mrs. Baker,

        [d]uring the time the fetus was alive, the patient kept 
        asking me when the fetus would die. For an hour and 45 
        minutes the fetus maintained a heartbeat. The parents 
        were frustrated, and obviously not prepared for this 
        long period of time. Since I was the nurse of both the 
        mother and the fetus, I held the fetus in my arms until 
        it finally expired.\38\
---------------------------------------------------------------------------
    \38\ Id.

    The third incident witnessed by Mrs. Baker involved a 16 
week-old fetus with Down's Syndrome. ``Again,'' Mrs. Baker 
testified, ``I walked into the soiled utility room and the 
fetus was fully exposed, lying on the baby scale.'' \39\ Mrs. 
Baker then found the nurse who was caring for the mother and 
the baby and offered her assistance. ``When I went back into 
the soiled utility room,'' Mrs. Baker said, ``the fetus was 
moving its arms and legs. I then listened for a heartbeat, and 
found that the fetus was still alive. I wrapped the fetus and 
in 45 minutes the fetus finally expired.'' \40\
---------------------------------------------------------------------------
    \39\ Id.
    \40\ Id.
---------------------------------------------------------------------------
    When allegations such as these were first made against 
Christ Hospital, the hospital claimed that this procedure was 
only used ``when doctors determine the fetus has serious 
problems, such as lack of a brain, that would prevent long-term 
survival.'' \41\ Later, however, the hospital changed its 
position, announcing that although it had performed abortions 
on infants with non-fatal birth defects, it was changing its 
policy and would henceforth use the procedure to abort only 
fatally-deformed infants.\42\
---------------------------------------------------------------------------
    \41\ Jeremy Manier, Rare Abortions by Induced Labor Probed by 
State, Chicago Tribune, Sept. 29, 1999.
    \42\ See Jeremy Manier, Christ Hospital, Network to Allow Fewer 
Abortions, Chicago Tribune, Oct. 14, 1999.
---------------------------------------------------------------------------
B. Confusion Regarding the Status of Abortion Survivors
    The confusion regarding the status of abortion survivors is 
reflected in events that happened two years ago in Cincinnati, 
Ohio. A young woman learned she was pregnant and sought the 
assistance at the clinic of the abortionist Dr. Martin Haskell, 
inventor of one variation of the partial-birth abortion 
procedure.\43\ Dr. Haskell performed the first step of the 
partial-birth abortion procedure--dilating the woman's cervix--
and she was to return the next day. The next morning the woman 
began experiencing severe abdominal pains and reported to the 
emergency room of Bethesda North Medical Center in Cincinnati. 
While she was being examined, the young woman gave birth to a 
baby girl.\44\ The attending physician placed the baby in a 
specimen dish--like any other substance that is removed from 
the body--to be taken to the lab by a medical technician. When 
the technician, Shelly Lowe, saw the baby girl in the dish she 
was stunned when she saw the girl gasping for air. ``I don't 
think I can do that,'' Ms. Lowe reportedly said. ``This baby is 
alive.'' \45\
---------------------------------------------------------------------------
    \43\ See Finger-pointing follows Baby Hope, Cincinnati Post, Apr. 
22, 1999, at 15A.
    \44\ See id.; see also Mona Charen, Baby Hope, Washington Times, 
May 17, 1999.
    \45\ Mona Charen, Baby Hope, Part 2, Washington Times, May 24, 
1999.
---------------------------------------------------------------------------
    After doctors concluded that the baby was too premature to 
survive (by some estimates she was born at 22 weeks, although 
some members of the hospital staff believed she was older), Ms. 
Lowe held the baby, whom she named ``Baby Hope,'' until the 
child died, wrapping her in a blanket and singing to her as she 
stroked her cheeks. Ms. Lowe said: ``I wanted her to feel that 
she was wanted. . . . She was a perfectly formed newborn, 
entering the world too soon through no choice of her own.'' 
\46\ Surprisingly, Baby Hope lived for 3 hours, without the 
benefit of an incubator or other intensive care, and breathing 
room air, but her condition was not reassessed by the 
physicians.\47\ And although it is impossible to determine at 
this point whether a reassessment would have made any 
difference in Baby Hope's ultimate survival, the lack of any 
such reassessment, coupled with the attending physician's 
initial placement of then-breathing Baby Hope in a specimen 
dish, at least raises serious questions as to whether a 
similarly-situated infant who was wanted by her mother would 
have received the same treatment.
---------------------------------------------------------------------------
    \46\ Mona Charen, Baby Hope, Washington Times, May 17, 1999.
    \47\ See id.
---------------------------------------------------------------------------
    Confusion regarding the legal status of abortion survivors 
is not a problem only in the United States. Evidence of this 
confusion can be further illustrated by events that occurred in 
Professor Peter Singer's native country of Australia. On April 
10, 2000, in Sydney, Australia, a Coroners Court heard 
testimony regarding a baby who survived an abortion in 1998 and 
lived for 80 minutes while hospital staff waited for the baby 
to die.\48\ When the midwife nurse called the abortion doctor 
(who was not present) to inform him that the baby had survived, 
he responded, ``So?'' \49\ The nurse then did what she could to 
make the baby comfortable, covering her with a blanket to keep 
her warm until her breathing and heartbeat slowed and she 
died.\50\
---------------------------------------------------------------------------
    \48\ See Australian Baby Lives 80 Minutes After Abortion, Sydney 
Morning Herald, Apr. 10, 2000.
    \49\ Id.
    \50\ See id.
---------------------------------------------------------------------------
    The coroner who investigated this incident condemned the 
actions of the abortion doctor, stating that `` `[t]he [baby] 
having been born alive deserved all the dignity, respect and 
value that our society places on human life. . . . The fact 
that her birth was unexpected and not the desired outcome of 
the [abortion] should not result in her and babies like her 
being perceived as anything less than a complete human being.' 
'' \51\ Noting that the old, infirm, sick and terminally ill 
are all entitled to proper medical and palliative care and 
attention, the coroner stated that ``newly-born unwanted and 
premature babies should have the same rights. The fact that 
[the baby's] death was inevitable should not affect her 
entitlement to such care and attention.'' \52\
---------------------------------------------------------------------------
    \51\ Id.
    \52\ Id.
---------------------------------------------------------------------------
    A similar incident occurred in Germany in 1998.\53\ In that 
case, an infant survived an abortion attempt at 25 weeks 
gestation. The doctors who attempted to abort the baby left it 
wrapped in a blanket for 10 hours ``under observation'' but 
without any medical assistance. The doctors then consulted with 
the parents and decided to provide the baby medical assistance. 
The infant survived, but was severely damaged and has had 
several operations. The German government brought charges 
against the physicians.
---------------------------------------------------------------------------
    \53\ See Andrew Gimson, Outrage as baby survives abortion, Daily 
Telegraph, London, Jan. 8, 1998.
---------------------------------------------------------------------------

               III. The Born-Alive Infants Protection Act

    H.R. 2175, the ``Born-Alive Infants Protection Act of 
2001,'' was designed to repudiate the pernicious and 
destructive ideas that have brought the born-alive rule into 
question, and to firmly establish that, for purposes of Federal 
law, an infant who is completely expelled or extracted from his 
or her mother and who is alive is, indeed, a person under the 
law--regardless of whether or not the child's development is 
believed to be, or is in fact, sufficient to permit long-term 
survival, and regardless of whether the baby survived an 
abortion. H.R. 2175 accomplishes this by providing that, for 
purposes of Federal law, ``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.'' The term ``born alive'' is defined as

        the complete expulsion or extraction from its 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 the 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.

As stated above, this definition of ``born alive'' was derived 
from a model definition of ``live birth'' that has been 
adopted, with minor variations, in thirty States and the 
District of Columbia.\54\
---------------------------------------------------------------------------
    \54\ See discussion supra.
---------------------------------------------------------------------------
    H.R. 2175 draws a bright line between the right to 
abortion--which the Supreme Court has now said includes the 
right to kill partially-born children--and infanticide, or the 
killing or criminal neglect of completely born children. The 
bill clarifies that a born-alive infant's legal status under 
Federal law does not depend upon the infant's gestational age 
or whether the infant's birth occurred as a result of natural 
or induced labor, cesarean section, or induced abortion. If, 
for example, an infant is born alive at a Federal hospital as a 
result of a failed abortion attempt, this bill makes clear that 
the attending physicians and other medical professionals should 
treat the infant just as they would treat a similarly-situated 
infant who was born as a result of natural labor.
    H.R. 2175 thus affirms, as Professor Hadley Arkes stated in 
testimony received by the Subcommittee on the Constitution, 
that every child who is born alive ``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.'' \55\ The bill makes clear that a 
child's legal status does not depend upon whether anyone 
happens to want him or her.
---------------------------------------------------------------------------
    \55\ Born-Alive Infants Protection Act: Hearings on H.R. 2175 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 107th Cong., July 12, 2001 (statement of Professor Hadley 
Arkes, Amherst College).
---------------------------------------------------------------------------
    The protections afforded newborn infants under H.R. 2175 
for purposes of Federal law are consistent with the protections 
afforded those infants under the laws of the thirty States and 
the District of Columbia that define a ``live birth'' in 
virtually identical terms. Like those laws, H.R. 2175 would not 
mandate medical treatment where none is currently indicated. 
While there is debate about whether or not to aggressively 
treat premature infants below a certain birth weight, this is a 
dispute about medical efficacy, not regarding the legal status 
of the patient. That is, the standard of medical care 
applicable in a given situation involving a premature infant is 
not determined by asking whether that infant is a person. 
Medical authorities who argue that treatment below a given 
birth weight is futile are not arguing that these low-birth 
weight infants are non-persons, only that providing treatment 
in those circumstances is not warranted under the applicable 
standard of medical care. H.R. 2175 would not affect the 
applicable standard of care, but would only insure that all 
born-alive infants--regardless of their age and regardless of 
the circumstances of their birth--are treated as persons for 
purposes of Federal law.

             IV. Congressional Authority to Enact H.R. 2175

    H.R. 2175 is exclusively a definitional provision, 
identical in structure and function to the immediately 
preceding provision of the United States Code. That provision, 
1 U.S.C. Sec. 7, defines ``marriage'' and ``spouse'' for the 
purpose of construing ``any Act of Congress, or of any ruling, 
regulation, or interpretation of the various administrative 
bureaus of the United States.'' H.R. 2175 defines the words 
``person,'' ``human being,'' ``child,'' and ``individual'' for 
identical purposes.
    H.R. 2175 does not, therefore, articulate any new 
substantive rule of law. Thus, as Professor Gerard V. Bradley 
of Notre Dame Law School testified before the Subcommittee on 
the Constitution in the 106th Congress, the Act does not call 
for an as-yet-unarticulated constitutional basis for 
lawmaking.\56\ If the Federal law using the word ``person,'' 
``human being,'' ``child,'' or ``individual,'' rests upon a 
proper enumerated basis, then no additional question about 
enumerated power is raised by Congress's clarification of what 
that term means.\57\ For, if Congress has the power to count 
``persons,'' to protect ``persons'' against assault, to grant 
tax exemptions for all dependent ``children,'' or to take some 
other action with regard to ``human beings'' or 
``individuals,'' that power necessarily implies the authority 
to provide a definition of ``persons,'' ``children,'' and 
``individuals.'' Congress also has the authority to define 
these terms under the Necessary and Proper Clause of article 1, 
section 8 of the Constitution.
---------------------------------------------------------------------------
    \56\ See Born-Alive Infants Protection Act: Hearings on H.R. 4292 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 20, 2000 (statement of Professor Gerard V. 
Bradley, Notre Dame Law School).
    \57\ Id.
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on H.R. 2175 on July 12, 2001. Testimony was received 
from the following witnesses: Hadley Arkes, Ney Professor of 
Jurisprudence and American Institutions, Amherst College; Jill 
L. Stanek, R.N., Christ Hospital, Oak Lawn, Illinois; Watson A. 
Bowes, Jr., M.D., Professor Emeritus of Obstetrics and 
Gynocology, School of Medicine, University of North Carolina at 
Chapel Hill. Additional material was submitted by Matthew G. 
Hile, Ph.D.; F. Sessions Cole, M.D.; Gordon B. Avery, M.D., 
Ph.D.; Advocate Christ Medical Center; and Jill L. Stanek, R.N.

                        Committee Consideration

    On July 12, 2001, the Subcommittee on the Constitution met 
in open session and ordered favorably reported the bill H.R. 
2175, by a voice vote, a quorum being present. On July 24, 
2001, the Committee met in open session and ordered favorably 
reported the bill H.R. 2175 without amendment by a recorded 
vote of 25 to 2, a quorum being present.

                         Vote of the Committee

    1. Final Passage. The motion to report the bill H.R. 2175 
was adopted. The motion was agreed to by a rollcall vote of 25 
to 2.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Barr........................................................              X
Mr. Jenkins.....................................................              X
Mr. Hutchinson..................................................              X
Mr. Cannon......................................................              X
Mr. Graham......................................................
Mr. Bachus......................................................              X
Mr. Scarborough.................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Conyers.....................................................              X
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             25               2
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 2175 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2175, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 26, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2175, the Born-
Alive Infants Protection Act of 2001.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member
H.R. 2175--Born-Alive Infants Protection Act of 2001.
    H.R. 2175 would amend the United States Code by expanding 
the definition of the words ``person, human being, child, and 
individual'' as they are used in any act of the Congress or any 
administrative ruling, regulation, or interpretation. Under the 
bill, such words would be defined to include every infant born 
alive at any stage of development. The bill also would define 
the term ``born alive.''
    The interests of those who are born alive are recognized 
most commonly in the areas of tort law, trust and estate law, 
and criminal law. Because the words ``person, human being, 
child, and individual'' are used frequently throughout the 
United States Code, CBO cannot determine how the new 
definitions could be interpreted in all situations. However, 
CBO assumes that the bill would have no effect on trust and 
estate law and negligible effect on Federal tort law. In the 
area of criminal law, CBO expects that the circumstances under 
which the new definitions could be used to bring lawsuits in 
Federal court are very limited. Therefore, we estimate that the 
effect of H.R. 2175 on the Federal budget would be negligible.
    Anyone prosecuted and convicted under H.R. 2175 could be 
subject to criminal fines. Collections of such fines are 
recorded in the budget as governmental receipts (revenues), 
which are deposited in the Crime Victims Fund and spent in 
subsequent years. Because
    H.R. 2175 could affect direct spending and receipts, pay-
as-you-go procedures would apply. CBO expects, however, that 
any additional receipts and direct spending would be negligible 
because it is not likely that the Federal Government would 
pursue many cases under this bill.
    Because definition changes in this bill would affect such a 
large number of citations in the United States Code, CBO cannot 
determine with certainty whether those changes might impose new 
enforceable duties on State, local, and tribal governments or 
the private sector. CBO has identified no such instances, 
however, and believes that it is unlikely that H.R. 2175 would 
impose new Federal mandates as defined by the Unfunded Mandates 
Reform Act.
    The CBO staff contact for this estimate is Lanette J. 
Walker, who can be reached at 226-2860. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 18 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    Section 1. Short Title. This section provides that the 
short title of the Act is the Born-Alive Infants Protection Act 
of 2001.
    Section 2. Definition of Born-Alive Infant. This section 
inserts into chapter 1 of title 1 of the United States Code a 
new section 8, defining ``person,'' ``human being,'' ``child,'' 
and ``individual'' as including born-alive infants. Section 
8(a) provides that 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.
    Section 8(b) provides that the term ``born-alive,'' with 
respect to any member of the species homo sapiens, means the 
complete expulsion or extraction 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.
    Section 8(c) provides that 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.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 1, UNITED STATES CODE



           *       *       *       *       *       *       *
                    CHAPTER 1--RULES OF CONSTRUCTION

Sec.
1.    Words denoting number, gender, etc.
     * * * * * * *
8.    ``Person'', ``human being'', ``child'', and ``individual'' as 
          including born-alive infant.
     * * * * * * *

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.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                         TUESDAY, JULY 24, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    The first item on the agenda is the adoption of H.R. 2175, 
the ``Born-Alive Infants Protection Act of 2001.''
    [The bill, H.R. 2175, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the 
Constitution, for a motion.
    Mr. Chabot. Thank you, Mr. Chairman.
    Mr. Chairman, the Subcommittee on the Constitution reports 
favorably the bill H.R. 2175 and moves its favorable 
recommendation to the full House.
    Chairman Sensenbrenner. Without objection, H.R. 2175 will 
be considered as read and open for amendment at any point.
    The Chair recognizes the gentleman from Ohio to strike the 
last word.
    Mr. Chabot. Thank you, Mr. Chairman.
    This morning, the Committee will consider H.R. 2175, the 
``Born-Alive Infants Protection Act of 2001.'' The Born-Alive 
Infants Protection Act is designed to protect all born-alive 
infants by recognizing them as a person, human being, child, or 
individual for purposes of Federal law.
    This recognition would take effect upon the live birth of 
an infant, regardless of whether or not the child's development 
is sufficient to permit long-term survival and regardless of 
whether the child survived an abortion. The act also clarifies 
that nothing in the bill shall be construed to affirm, deny, 
expand, or contract any legal status or legal rights applicable 
to an unborn child.
    This truly is a bill of compassion, a bill that says all of 
America's children are precious and should be protected. It has 
long been an accepted legal principle that infants who are born 
alive are persons, entitled to the protections of the law. A 
live birth is considered to occur whenever an infant is 
expelled from his or her mother's body and displays any of 
several specific signs of life: breathing, a heartbeat, or 
definite movement of voluntary muscles.
    Thirty States and the District of Columbia have statutes 
that, with some variations, explicitly enshrine this principle 
as a matter of State law, and some Federal courts have 
recognized the principle in interpreting Federal criminal laws. 
But recent changes in the legal and cultural landscape appear 
to have brought this well-settled principle into question.
    For example, when the United States Supreme Court struck 
down Nebraska's partial-birth abortion statute in Stenberg v. 
Carhart, it failed to consider the legal significance of any 
infant's location relative to its mother's body at the moment 
he or she is killed during an abortion. What was described in 
Roe v. Wade as a right to abort unborn children was extended to 
include the violent destruction of partially-born children just 
inches from birth. The Carhart ruling presents a serious threat 
to the born-alive principle because it left the door open for a 
future court to explicitly reject the importance of an infant's 
location relative to his or her mother during an abortion. In 
fact, this is the position of two members of the Carhart 
majority.
    Shortly after the Carhart ruling, the Third Circuit Court 
of Appeals in Planned Parenthood of Central New Jersey v. 
Farmer concluded not only that it was ``nonsensical'' to 
prohibit abortions based upon the location of the baby at the 
moment it is killed, but, also, that an infant who is killed 
during a partial-birth abortion is not entitled to the 
protections of the law because, quote, ``a woman seeking an 
abortion is plainly not seeking to give birth.''
    Under the logic of these rulings, it may ultimately become 
irrelevant whether a child emerges from the mother's womb as a 
live baby. That child may still be treated as a non-entity, 
without rights under the law, no right to receive medical care, 
to be sustained in life, or receive basic comfort care.
    On July 12th, the Constitution Subcommittee received 
credible evidence that this is, in fact, already occurring. 
Jill Stanek, a nurse at Christ Hospital in Oak Lawn, Illinois, 
testified about one aborted baby left to die on the counter of 
the soiled utility room wrapped in a disposable towel that 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 onto the floor.
    As Professor Hadley Arkes stated in testimony received by 
the Subcommittee, the Carhart ruling has, indeed, brought us to 
the threshold of outright infanticide, and it takes but the 
shortest step to cross that threshold. That's why it's 
imperative that Congress firmly establish the born-alive 
principle in Federal law. Although this rule has been codified 
in most States, the notion that an abortion survivor is not a 
person still remains plausible precisely because it has not 
been explicitly refuted or rejected.
    It is important to note that H.R. 2175 will not mandate 
medical treatment where none is currently indicated. As Dr. 
Watson Bowes told the Subcommittee, ``this bill does not 
legislate how physicians and parents may deal with the 
decisions about withholding or discontinuing medical or 
surgical treatment that is considered futile in the care of an 
infant.'' Instead, it ``deals solely with the criteria that 
define whether an infant is alive at the time of birth.''
    The Born-Alive Infants Protection Act draws a bright line 
between the right to an abortion, which the Supreme Court has 
now said includes the right to kill partially born children, 
and infanticide, or the killing of a completely born child--a 
distinction that the Carhart court refused to recognize.
    H.R. 2175 was introduced by a bipartisan coalition of more 
than 70 original cosponsors and was reported favorably by the 
Subcommittee on the Constitution without amendment. Virtually 
identical legislation was approved by the House of 
Representatives last Congress with an overwhelming majority. I 
urge this Committee to approve this important piece of 
legislation so that all newborn infants will receive the 
protection of Federal law regardless of the circumstances of 
their birth.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Who would like to give the opening statement for the 
minority? The gentlewoman from California strikes the last word 
and is recognized for 5 minutes.
    Ms. Lofgren. Mr. Chairman, this bill was addressed by the 
Committee in the 106th Congress, and I believe that this year, 
as with last year, there will be support on both sides of the 
aisle for the measure.
    I would note, however, although I'm not a Member of the 
Subcommittee, that the--we often hear these wild stories 
relative to births, and yet when you dig a bit deeper, you find 
that those wild stories are not unconfronted. For example, in 
the story just relayed by the Chairman of the Committee, the 
hospital itself, the Advocate Christ Medical Center, indicated 
that the hospital terminates pregnancies only when medically 
necessary, that no pregnancy is terminated without the informed 
consent of the family and the Perinatal Ethics Committee, that 
the hospital always assesses the medical condition of neonates 
and provides treatment to those who can survive outside the 
womb and that non-viable fetuses are, in fact, given comfort 
care that shows respect for life, no matter how brief. So I 
think it's important that we--while coming together, to note 
that there's not a hospital in America that would refuse to 
provide medical care to an infant born. There's certainly, 
therefore, nothing wrong with codifying that fact in Federal 
law.
    I would note that the language of the bill is sloppily 
drafted and is more of a political nature than a tightly drawn 
medical-legal statute. But I'm not going to let that deter me 
from voting for it because I know that should this ever move 
through the Senate that the language can be tightened up and 
made more judicial.
    So I would just like to note that there is not a division 
on the Committee. I think there is misadvised rhetoric, stories 
that are without foundation, but that will not deter from us 
all voting for this measure.
    Mr. Conyers. Would the gentlelady yield?
    Ms. Lofgren. I would certainly yield to the Ranking Member.
    Mr. Conyers. Thank you. I'd like to get unanimous consent 
to insert the statements of Representatives Jerry Nadler and 
myself at this point?
    Chairman Sensenbrenner. Without objection, so ordered, and 
also without objection, all Members may insert statements in 
the record at this point.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    Last Congress, we considered legislation similar to H.R. 2175, the 
``Born-Alive Infants Protection Act.'' I supported the bill last 
Congress--as I support this bill--because it does not change current 
law.
    Although the bill is redundant and somewhat unnecessary, I will 
vote for H.R. 2175 to reaffirm that all newborns and children are 
entitled to legal protection.
    Importantly, Dr. Watson Bowes Jr., a specialist in obstetrics and 
maternal-fetal medicine, testified before the Constitution Subcommittee 
that this bill will not adversely affect the ability of physicians and 
parents to deal with the heart-rending decisions about withholding or 
discontinuing medical or surgical treatment that is considered futile 
in the care of an infant.
    Dr. Bowes also confirmed that the bill does not change the standard 
of care in current law.
    Since this legislation will not change the law in any way, the real 
question is why we are spending time on this bill when there are real 
health care issues for pregnant women, infants, and children that are 
going unaddressed.
    Over 400,000 pregnant women in the United States are uninsured--
making it much more difficult and costly for them to receive proper 
prenatal care. In order to reduce low birth weight babies, and give 
infants their best chance for a healthy childhood, proper prenatal care 
is essential.
    In addition, there are 10 million children in this country who are 
uninsured. These children do not have access to both routine and 
emergency health care services.
    Rather than passing redundant legislation, Congress should be 
spending its time on proposals to encourage the States to reach out to 
pregnant women and families to make it easier for them to enroll in 
Medicaid and the Children's Health Insurance Program (CHIP).
    Finally, we need to fully fund Head Start, which has been proven to 
improve academic performance for poor and underserved children. 
Currently, only 25-30% of eligible children are enrolled in Head Start 
programs. We need to serve 100% of these children.
    Only after these other priorities are taken care of, should the 
Committee spend time on bills that re-state current law.

    [The prepared statement of Mr. Nadler follows:]
    
    
    Mr. Chabot. Will the gentlelady further yield?
    Ms. Lofgren. I would certainly yield to the gentleman.
    Mr. Chabot. I thank the gentlelady for yielding. I'll be 
very brief. You mentioned that the language is sloppily worded. 
I might note that this is the same language that was used by 
the World Health Organization, a draft of 50 years ago, and is 
used in many States around the country. So the language----
    Ms. Lofgren. Well, reclaiming my time, they don't have the 
responsibility for drafting the Federal code. We do. However, 
as I mentioned, I will vote for this noting that if this 
proceeds into the Senate that wiser heads will clean up the 
language and make sure that lawyers around the world can 
actually--around the country can actually apply it should this 
ever be applied, which I doubt very much, since this is the 
standard of care in every hospital in America.
    And, with that, I would yield back to the Chairman the 
remainder of my time.
    Chairman Sensenbrenner. Are there amendments? For what 
purpose does the gentleman from North Carolina seek 
recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I actually was going to 
sit and just let this bill be voted on and vote against it. But 
I'm afraid my colleague from California left a misimpression 
that there was no division on the Committee about it, and I 
don't want to leave that misimpression.
    I voted against this bill last year in Committee and on the 
floor. I voted against it in the Subcommittee. And I intend to 
vote against it today if anybody calls for a recorded vote, not 
so much because I disagree with what the proponents of the bill 
say the bill stands for, but because I still, even after all 
this time, don't understand the implications of it.
    At its best, the bill does nothing, and many of the 
supporters of this bill say that it does nothing. It does not 
change existing law. It does nothing. And that's certainly not 
a compelling reason to vote for a piece of legislation.
    But that's not my concern, either. My concern is that the 
Congressional Research Service has indicated that there are 
over 15,000 provisions in the United States Code and 57,000 
provisions in the Code of Federal Regulations which use the 
terms ``person,'' ``human being,'' ``child,'' ``individual,'' 
and we don't have a clue what this bill does with respect to 
those provisions in the United States Code. And I simply think 
it's irresponsible for the Judiciary Committee, of all places, 
to be reporting a bill out and supporting a bill which some 
people say does nothing and, if it does, then I don't 
understand the rationale for it.
    But if it does something, we at least in the Judiciary 
Committee ought to understand exactly what it does. What 
implications does it have for inheritance laws? What 
implication does it have for the myriad of statutory provisions 
that use these terms in the United States Code and in the Code 
of Federal Regulations? And nobody has been able to tell me 
that, and I'm sorry, I'm just not going to get on this boat 
just because the boat is moving and maybe there's nothing of 
harm to be done by this bill.
    I'll yield to the gentlelady from California.
    Ms. Lofgren. I would just--I appreciate the gentleman for 
yielding, and I just wanted to offer my apologies for speaking 
for him incorrectly and--which I did not mean to do, and I 
gratefully yield back to the gentleman.
    Mr. Watt. I yield back the balance of my time, Mr. 
Chairman.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. Strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Nadler. Thank you. Thank you, Mr. Chairman.
    Today we consider legislation reaffirming an important 
principle which is enshrined in the laws of all 50 States 
already: that an infant who is born and who is living 
independently of the birth mother is entitled to the same care 
as any other child similarly diagnosed, regardless of whether 
labor was induced or occurred spontaneously.
    It has never been clear to me why we need to legislate that 
which most Members of Congress and the general public already 
assumed and knew to be the law. But if the majority's 
interested in a belts-and-suspenders approach and in restating 
the law, so be it.
    This same measure passed just recently as an amendment to 
the Patients' Bill of Rights legislation in the Senate by a 
vote of 98 to nothing, which is about as uncontroversial as 
something can get. Even such pro-choice Members as our 
colleague, the junior Senator from California, spoke in favor 
of it.
    I am pleased that the majority has made a serious effort to 
make clear that this bill has nothing to do with matters 
related to abortion, even going so far as to add a subsection 
(C) further clarifying that point.
    Whatever concerns we may have had last year that this might 
become some clever way to undermine the rights protected under 
Roe v. Wade have, I think, been addressed. Unless someone 
attempts to disrupt this effort by dragging the abortion debate 
back into it, I have little doubt that this bill will be passed 
without much controversy.
    I would like to address the concern that our Republican 
colleague, the gentlewoman from Connecticut, Mrs. Johnson, has 
enunciated most eloquently; that is, the standard of care 
employed by neonatologists when faced with a non-viable newborn 
or a clearly critically ill or massively deformed newborn.
    These are difficult medical issues and often horrendous 
circumstances which confront hopeful families every day. I am 
cognizant of the fact that these are complex issues which 
doctors, hospitals, families, and courts grapple with every 
day.
    I would quote the Committee's report from the last Congress 
which makes clear that this legislation, quote, ``would not 
mandate medical treatment where none is currently indicated. 
While there is a debate about whether or not to aggressively 
treat premature infants below a certain birth weight, this is a 
dispute about medical efficacy not regarding the legal status 
of the patient. That is, the standard of medical care 
applicable in a given situation involving a premature infant is 
not determined by asking whether the infant is a person. This 
legislation would not affect the applicable standard of care, 
but would only ensure that all born-alive infants, regardless 
of their age and regardless of the circumstances of their 
birth, are treated as persons for purposes of Federal law.'' 
Close quote.
    I do not want to trivialize the concerns of neonatologists, 
but I was gratified by the testimony that we received from the 
majority witnesses at our Subcommittee hearing on this 
legislation, which indicated that while an infant may be 
considered born alive under this legislation, it would not in 
any substitute the medical judgment of Congress for the 
judgment of doctors on the scene or interfere with the painful 
decisions that families must make under the most difficult of 
circumstances. We must respect families and not have the big 
hand of government make their worst moments even more 
unbearable.
    I trust that the sponsors of this legislation are in 
agreement on this point.
    There has been a great deal of debate over the question 
about whether there is some sort of recognized legal right to a 
dead baby when a parent intends to abort a fetus. My colleagues 
well know that the line drawn by the Supreme Court is that of 
viability within the womb and that outside the womb the normal 
laws governing the appropriate care of newborns, taking into 
account the prognosis made by a trained health care provider, 
apply. This bill simply restates the law as we always knew it 
to be.
    The rather horrific accounts told by the majority witnesses 
at the Committee, the same accounts and the same witnesses this 
year as last, are already illegal, as far as I know, in every 
State under the Union, and they make a case for better 
enforcement of the law, but not for any legislation.
    This legislation is unnecessary but I believe harmless. If 
it helps the majority in some way to assuage somebody's 
conscience, I see no reason to oppose it, as long as it is 
clear that this has nothing to do with abortion. There is no 
such thing as ``born-alive abortions.'' That's a figment of 
somebody's imagination. And we will not fall into a trap, 
which, again, the majority has assuaged with some clear 
language this year, of opposing this bill on any such grounds.
    I do not anticipate any amendments, and with the Chairman's 
agreement that we are in accord, I do not see any need to drag 
out this process.
    Thank you, Mr. Chairman. I yield back.
    Chairman Sensenbrenner. Are there amendments? The Chair 
hears none. Reporting quorum is present. The question occurs on 
the motion to report H.R. 2175 favorably. All in--all in favor, 
say aye? Opposed, no? The ayes appear to have it.
    The ayes have it. The motion----
    Mr. Chabot. Mr. Chairman? Mr. Chairman, could we have a 
recorded vote on that, please?
    Chairman Sensenbrenner. Roll call is requested. The Chair 
will order a roll call. Those in favor of reporting H.R. 2175 
favorably will, as your names are called, answer aye; those 
opposed, no; and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
    Mr. Hutchinson. Aye.
    The Clerk. Mr. Hutchinson, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there additional Members who 
wish to cast or change their votes? The gentleman from 
California, Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. Anybody else? If not, the clerk 
will report.
    The Clerk. Mr. Chairman, there are 24 ayes----
    Chairman Sensenbrenner. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chairman, there are 25 ayes and 2 noes.
    Chairman Sensenbrenner. And the motion to report is agreed 
to. Without objection, the staff is directed to make technical 
and conforming changes, and without objection, pursuant to 
House rules, the Chairman is authorized to go to conference.
                            Additional Views

    We write as Members who supported the passage of H.R. 2175 
in order to clarify our understanding of this legislation based 
on a plain reading of the bill's language and the record made 
by the sponsors as to its meaning.
    The bill amends title 1, U.S. Code, to add at the end a 
definition of the terms ``person,'' ``human being,'' ``child,'' 
and ``individual'' to include ``any infant member of the 
species homo sapiens who is born alive at any stage of 
development.'' \1\ The term ``born alive'' is defined to 
require that a fetus is entirely expelled or extracted from the 
mother and shows breathing, ``a beating heart, pulsation of the 
umbilical cord, or definite movement of voluntary muscles.'' 
The definition applies regardless of whether the umbilical cord 
has been cut or whether the expulsion or extraction occurs 
through natural or induced labor, cesarean section, or induced 
abortion. The viability of the fetus outside the womb is not an 
element of the definition.
---------------------------------------------------------------------------
    \1\ While the proposed act does not include a specific extension of 
the ``born alive'' definition to the term ``infant,'' the title and 
definition of the act suggest the intent to do so.
---------------------------------------------------------------------------
    A rule of construction in a new subsection (c), absent from 
the version of the bill passed by the House in the 106th 
Congress, states that the bill is neutral with respect to 
abortion rights, providing that the section shall not 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.' '' We 
believe that this clarification further resolves concerns that 
this legislation may have been intended as a back-door effort 
to affect abortion and reproductive rights rather than applying 
solely to the status of an infant following birth. It is also 
consistent with current law. As a general matter, the Supreme 
Court has held that ``the unborn have never been recognized in 
the law as persons in the whole sense,'' and the law has been 
reluctant to afford any legal rights to nonviable fetuses 
``except in narrowly defined situations and except when the 
rights are contingent upon live birth.'' \2\
---------------------------------------------------------------------------
    \2\ Roe v. Wade, 410 U.S. 113, 161-62 (1973). The Supreme Court 
held in Roe that a fetus, even when viable, is not a person under the 
Fourteenth amendment. Id. at 152-53. Although the Court found that the 
State has a compelling interest in the ``potentiality of human life'' 
of the fetus after it reaches viability, it concluded that this 
interest could not justify prohibiting an abortion even after the point 
of viability if the abortion is necessary to preserve the life or 
health of the woman. Id. at 162-63.
---------------------------------------------------------------------------
    We would note that the full implications of H.R. 2175 are 
unknown. A complete analysis of the bill would require enormous 
resources. According to the CRS Memorandum prepared in the 
106th Congress, the terms ``person,'' ``human being,'' 
``child,'' and ``individual'' appear in at least 15,000 
sections of the U.S. Code and are found in over 57,000 sections 
of the Code of Federal Regulations. There is no evidence to 
suggest that the sponsors of this bill have examined these 
Federal laws and regulations to identify all of the bill's 
potential consequences, and the CRS researchers stated that 
``an evaluation of the statutory and regulatory impact of the 
act is beyond the resources of [their] office.'' \3\
---------------------------------------------------------------------------
    \3\ Kenneth Thomas & Jon O. Shimabukuro, ``The Born Alive Infant 
Protection Act of 2000,'' Congressional Research Service Memorandum, at 
2, (July 18, 2000).
---------------------------------------------------------------------------
    One concern which has been raised is that the bill might 
affect decisions with regard to the standard of care owed to a 
previable fetus which has been expelled as a result of 
spontaneous or induced labor, or to a fetus which is afflicted 
with massive fetal anomalies. Dr. Gordon Avery, an expert in 
the field of neonatology, wrote a letter to the Committee 
arguing that H.R. 2175's definition of ``born alive'' was too 
broad, as non-living entities may show involuntary movements 
such a heartbeat or twitching muscles. He expressed the concern 
that the definition of ``born alive,'' which would apply to 
severely premature neonates with ``a single gasp, a muscle 
twitch, any pulsation of the umbilical cord'' but no chance of 
life outside the womb, would cloud the waters for medical 
professionals and families making decisions as to the 
appropriate standard of care.\4\
---------------------------------------------------------------------------
    \4\ Letter of Dr. Gordon B. Avery to Rep. Nadler, June 21, 2001. 
These are not merely the isolated concerns of an academic 
neonatologist. In testimony before the Subcommittee in the 106th 
Congress, Dr. Francis Sessions Cole of Children's Hospital in St. Louis 
stated that the imposition of this universal definition might 
``significantly interfere with the agonizing, painful and personal 
decisions that must be left to parents in consultation with their 
physicians.'' In debate on the legislation in the 106th Congress, Rep. 
Nancy Johnson (R-CT) spoke against the bill on these grounds, saying 
that it would ``deny parents and deny doctors the right to make 
decisions about premature infants. An infant born at 3\1/2\ , 4\1/2\, 
5\1/2\ months is a tragedy, and parents in a free society in America 
deserve the right to determine what medical care they will have, 
recognizing that the law requires [that] newborns receive all medically 
indicated treatment.'' 146 Cong. Rec. H8160 (Sept. 26, 2000).
---------------------------------------------------------------------------
    If, however--as we have been assured by the Majority--the 
bill does not change existing law, it should not affect the 
decisions of families and neonatologists. Furthermore, 
according to the Majority report filed in the 106th Congress, 
the ``bright line'' of complete extraction would not constrain 
or in any way chill medical care given to a woman or to her 
offspring:

        [H.R. 4292] would not mandate medical treatment where 
        none is currently indicated. While there is debate 
        about whether or not to aggressively treat premature 
        infants below a certain birth weight, this is a dispute 
        about medical efficacy, not regarding the legal status 
        of the patient. That is, the standard of medical care 
        applicable in a given situation involving a premature 
        infant is not determined by asking whether that infant 
        is a person. . . . H.R. 4292 would not affect the 
        applicable standard of care, but would only insure that 
        all born-alive infants--regardless of their age and 
        regardless of the circumstances of their birth--are 
        treated as persons for purposes of Federal law.\5\
---------------------------------------------------------------------------
    \5\ H. Rep. No. 835, 106th Cong., 2d Sess. 13 (Sept. 11, 2000).

    This accords with the testimony received by the 
Subcommittee on the Constitution from Majority witnesses. Dr. 
Watson A. Bowes, Jr., a former Chairman of the Committee on 
Ethics of the American College of Obstetricians and 
Gynecologists, stated,
    ``[T]his definition of live birth does not restrict a 
physician's prerogative to recommend that medical care regarded 
as futile be withdrawn or withheld. It is important to keep in 
mind that this bill deals solely with the criteria that define 
whether an infant is alive at the time of birth. It does not 
legislate how physicians and parents may deal with the decision 
about withholding or discontinuing medical or surgical 
treatment that is considered futile in the care of an infant.'' 
\6\
---------------------------------------------------------------------------
    \6\ Hearing on H.R. 2175, The Born-Alive Infants Protection Act of 
2001 Before the Subcomm. on the Constitution of the Comm. on the 
Judiciary, 107th Cong., 1st Sess. 33 (July 12, 2001) (testimony of Dr. 
Watson A. Bowes, Jr.).
---------------------------------------------------------------------------
    In addition, even in the situations described by Majority 
witness nurse Jill Stanik, Dr. Bowes stated that ``I don't 
think this [legislation] changes medical care for those 
babies.'' \7\
---------------------------------------------------------------------------
    \7\ Id. at 42.
---------------------------------------------------------------------------
    In light of the fact that H.R. 2175 does not apply to 
abortion or other pre-birth decisions concerning human 
reproduction, and that it is clear that the bill does not 
substitute the judgement of Congress for the judgement of a 
qualified health care provider, we remain puzzled about the 
ultimate purpose of this legislation. Insofar as it prohibits 
the killing of an infant following a live birth, or the denial 
of treatment where it would be medically indicated and legally 
required under current law and practice, it reflects the laws 
of all 50 States, the District of Columbia and the territories 
of the United States. It is unfortunate that the bill provides 
a platform for the overheated rhetoric of a few who wish to 
suggest that viable healthy infants are being permitted to die 
in our nation's hospitals, even though the sponsors have never 
been able to point to so much as one prosecution connected with 
these alleged activities.
    With these understandings and clarifications from the 
sponsors and their witnesses, we are able to support this 
legislation.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Tammy Baldwin.
                            Dissenting Views

    We voted against H.R. 2175, the ``Born-Alive Infants 
Protection Act,'' at the July 24, 2001 House Judiciary 
Committee markup because this bill has not been studied in a 
responsible way before being considered by the Judiciary 
Committee.
    According to the Congressional Research Service's (CRS) 
analysis of the bill's virtually identical predecessor from the 
106th Congress (H.R. 4292), this bill would amend some 15,000 
provisions of the U.S. Code and 57,000 provisions of the Code 
of Federal Regulations.\1\ Both the CRS and the Congressional 
Budget Office (CBO) reviewed the earlier version of the bill 
and neither reached a definitive conclusion about what the bill 
would do. The CRS concluded:
---------------------------------------------------------------------------
    \1\ Kenneth Thomas and Jon Shimabukuro, ``The Born-Alive Infants 
Protection Act of 2000,'' CRS Memorandum, p. 1, fn. 1 (July 18, 2000).

        A definitive statutory analysis of the effect of the 
        proposed act would require a review and evaluation of 
        the use of the terms ``person,'' ``human being,'' 
        ``child,'' and ``individual'' as they appear in all 
        Federal statutes and in agency rulings, regulations or 
        interpretations. A computer search of these terms 
        reveals that they appear in over 15,000 sections of the 
        United States Code, and in over 57,000 sections of the 
        Code of Federal Regulations. Consequently, an 
        evaluation of the statutory and regulatory impact of 
        the act is beyond the resources of our office.\2\
---------------------------------------------------------------------------
    \2\ Id.

    Similarly, the CBO concluded: ``Because the words `person, 
human being, child, and individual' are used frequently 
throughout the United States Code, CBO cannot determine how the 
new definitions could be interpreted in all situations.'' \3\
---------------------------------------------------------------------------
    \3\ Congressional Budget Office, Cost Estimate: H.R. 4292 (August 
22, 2000)
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    As we understand the bill's proponents, they intend to 
codify and reaffirm, not change, the substantive law. If the 
purpose of the bill is only to restate present law, then the 
best way to do that is to pass no bill at all.
    Changing the definition of the terms ``person,'' ``human 
being,'' ``child,'' and ``individual'' as they appear in more 
than 72,000 Federal statutes and regulations carries an 
enormous risk of unintended consequences. The statutes and 
regulations prospectively affected could include, for example, 
such wide-ranging topics as criminal laws, inheritance laws, 
tax laws, tort laws, insurance laws and programs that provide 
benefits. Moreover, as stated by the CBO: ``[b]ecause 
definition changes in this bill would affect such a large 
number of citations in the United States Code, CBO cannot 
determine with certainty whether those changes might impose new 
enforceable duties on State, local, and tribal governments or 
the private sector.'' \4\
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    \4\ Id.
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    In addition, the definitional changes proposed by the bill 
could create potential confusion and conflicts with State law 
definitions of what constitutes life and death. An infant could 
be ``born alive'' under the new definition in Federal law, but 
never considered alive under a State statute that determines 
life based on brain activity.
    In light of the many unanswered questions about the effects 
of the bill, we do not have the certainty necessary to 
favorably report a bill to the House. Although the original 
version of this bill was introduced over a year ago, its 
sponsors have yet to provide any substantive analysis on the 
effects of the bill, or that the bill will work its symbolic 
purpose with no unintended consequences or conflicts.
    In the end, H.R. 2175 may prove to be the symbolic bill its 
proponents contend that it is. However, we are not able to 
reach that conclusion today, and we stand on our vote against 
this bill.

                                   Robert C. Scott
                                   Melvin L. Watt