Does Obama Support the Killing of Infants? (Kmiec on the Born Alive Bill)

This man has no shame. He starts out saying he would have voted for this, then goes on to say how duplicitous and unneccesary the law is. Yes, Kmiec is duplicitous, that's true, but I wasn't sure he would admit it. Such is the Orwellian nature (or shall we say Kmiecian) of his dissembling. Obama himself says the reason he voted against it was to protect Roe v. Wade. I;ll give him this, at least he is more honest than Kmiec, although the "less honest than Kmiec" position doesn't have much space. What about support for funding for Planned Parenthood? How do you spin this you liar. GO someplace and debate this coward. Unbelievable.

Wow. The right uses smear tactics to slander Obama? Shocking! Next thing you'll tell me the right manipulates gullible Christians into voting Republican through phony religious rhetoric! And here I believed every word that Rush Limbaugh, Glenn Beck and Bill O'Reilly told me. Tsk tsk tsk.

I am pro choice but w/ a reasonable amount of common sense.I do not condone abortion as a means of birth control.

No one chooses abortion lightly. As a means of birth control, it is an absolute last resort.

89% of abortions occur in the first 12 weeks. Only 1.1% of abortions occur after 20 weeks. That includes all procedures to save the life of the mother, or to remove a stillborn fetus from the uterus.

Fifty-four percent of women who have abortions had used a contraceptive method (usually the condom or the pill) during the month they became pregnant.

Fifty percent of U.S. women obtaining abortions are younger than 25: Women aged 20–24 obtain 33% of all abortions, and teenagers obtain 17%

The most common reason for abortion is financial hardship, followed by problems with partner or spouse. The vast majority of abortions are obtained by young, poor and uneducated women.

Trying to paint Obama as a monster for resisting this legislation that was clearly put forth to manipulate the law shows how ignorant the radical right is. Painting pictures of poor suffering infants is nothing more than sensationalism, it bears no relation to reality.

If you don't want to see abortions, get at the cause. Poverty and ignorance.

"""" The Born Alive bills were complicated bills about "definitions." """"

Yes it is about definitions, what do you call fetus after out of the womb at borderline viability after medically induced miscarriage...

"Yes it is about definitions, what do you call fetus after out of the womb at borderline viability after medically induced miscarriage..."

What constitutes 'borderline' viability? It might be a judgment call in some cases but shouldn't the doctors be able to determine on which side of the border the fetus lies?

"What constitutes 'borderline' viability? It might be a judgment call in some cases but shouldn't the doctors be able to determine on which side of the border the fetus lies?"

No, doctors should not get to choose considering we're talking about doctors purposely induced miscarriages... that's the whole point of the controversy...

Ramesh Ponnuru takes apart Kmiec's silly and dishonest arguments here:

http://corner.nationalreview.com/post/?q=NjAzYTA5NzVkMzk4NTM3MDBiNDYwY2JhNTU3ZWY4YjQ=

OBAMA AND HIS UNWAVERING SUPPORT FOR THE HORRIFIC PARTIAL BIRTH ABORTION PROCEDURE:

Last year the U.S. Supreme Court upheld in Gonzales v. Carhart the federal ban on the barbaric practice of partial-birth abortion. Congress overwhelmingly passed the ban in 2003. Even some of the most liberal members of Congress experienced unexplained fits of common sense, voting for the ban in the face of angry demands from mouth-foaming feminists.

Although the American Medical Association has determined that partial-birth abortion is never necessary under any circumstances, Obama threw a hissy, nonetheless, after the opinion came down. While deriding the Court for its ruling, he whined, “For the first time in Gonzales versus Carhart, the Supreme Court upheld a federal ban on abortions with criminal penalties for doctors.”

So what, exactly, did the ban ban? What “hard-won right” – as he later called partial-birth abortion – was Obama so steadfast to preserve?

DURING A PARTIAL-BIRTH ABORTION, THE ABORTIONIST PULLS A FULLY DEVELOPED, FULLY “VIABLE” CHILD – OFTEN KICKING AND THRASHING – FEET FIRST FROM HER MOTHER’S WOMB, LEAVING ONLY THE TOP OF HER HEAD IN THE BIRTH CANAL. HE THEN STABS HER THROUGH THE SKULL WITH SCISSORS OR SOME OTHER SHARP OBJECT, PIERCING HER BRAIN UNTIL HER KICKING AND MOVING ABOUT SUDDENLY AND VIOLENTLY JERK TO A HALT. HER BRAINS ARE THEN SUCKED OUT – COLLAPSING HER SKULL – AND HER NOW LIMP AND LIFELESS BODY IS TOSSED ASIDE LIKE SO MUCH GARBAGE.

Again, medical science has determined that this horrific practice, which is nothing short of infanticide, is never necessary. But Barack Hussein Obama – the man who would be President – doesn’t see it that way. He called the partial-birth abortion ban, “a concerted effort to roll back the hard-won rights of American women.” OBAMA AND MICHELLE EVEN THROUGH A FUNDRAISER IN 2004 TO RAISE MONEY TO SUPPORT THIS HORRIFIC PRACTICE.

I BELIEVE THAT EVEN MOST PRO-CHOICE INDIVIDUALS WILL FIND THIS PRACTICE BARBARIC. WHAT DOES IT SAY ABOUT OBAMA THAT HE WOULD FIGHT SO VOCIFEROUSLY FOR THIS?

Mr. Kmiec, you just made me want to throw up.

How do you live with yourself?

ANOTHER LIE TOLD BY OBAMA AND HIS SUPPORTERS, IS THAT HE VOTED AGAINST THE INFANT BORN ALIVE LEGISLATION BECAUSE ILLINOIS LAW ALREADY PROTECTED THESE LIVE BABIES. That is patently false. When Jill Stanek, an advocate for the rights of these babies, approached the state Attorney General of Illinois, he reviewed the legality of the “live birth abortions” which were taking place in a number of hospitals in Illinois. After several months, he issued a finding that Christ Hospital (which was one of these hospitals) was doing nothing illegal under the laws of Illinois. Under Illinois law, he said, doctors had no ethical or legal obligation to treat these premature babies. Under the law in Illinois at the time, although these babies were living outside their mother’s womb, they were non-persons. This decision by Attorney General Ryan was partly based upon a 1993 case, Herbst v. Jack O’Malley, wherein the court permanently enjoined (i.e. prevented the enforcement of) large segments of the Illinois Abortion Law of 1975, including provisions of the law which dealt with live births.(And yes, this law is the very one that Obama cites on his website, and which he contends already protected these innocent babies from the cruel death that awaited them – 720 ILCS 510.) So, the Born-Alive Infant Protection legislation was introduced into the Illinois legislature to protect these live babies from being killed or left to die.

I’m sure Obama is not finished changing his story yet, however, one thing is clear: HE MAY THINK THAT HE CAN RUN FROM HIS RECORD, BUT IN TRUTH, HE CANNOT HIDE.

Jay said:

Mr. Kmiec, you just made me want to throw up.

How do you live with yourself?
_____________________

I agree with you. The extent to which Obama supporters will stoop to defend him is truly revolting, and obviously even extends to justification for killing live babies. May God forgive those who support such a man.

The people who know best Say Obama is pro-late-term abortion....

See http://www.lifenews.com/nat4313.html

As legislative director for National Right to Life, I have been closely attentive to the Born-Alive Infants Protection legislation since its inception. The material quoted by Mr. Waldman from the Kmiec book contains so many misstatements regarding the Born-Alive Infant Protection bills, laced together with non sequiturs, that it is difficult to know where to begin.

Let's keep in mind that the Illinois Born-Alive Infants Protection Act (BAIPA), to which Obama led the opposition in the Illinois state Senate, was always very similar to the federal BAIPA on which it was modeled. Indeed, the state BAIPA that Barack Obama killed in the committee he chaired on March 13, 2003, was virtually identical to the federal version (which had already been enacted into law in 2002). The congressional bill ensured that all humans who were born alive were regarded as legal persons for federal law purposes, and the state bill would have done the same thing for state law purposes. For the most part, the same legal and policy arguments were applicable (or inapplicable) to both.

Both the state and federal bills always contained the same definition of what it meant to be a "born alive" human. The definition applies the term to any human who has achieved "the complete expulsion or extraction from" his or her mother and who thereafter "breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles . . . regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.”

In his book, Kmiec suggests that this definition was a great departure from previous law, writing, "From the time of the ancient common law, 'born alive' has meant live birth at or near the end of a full term pregnancy with a reasonable prospect of survival."

In other words, in Kmiec's understanding, if there is not a reasonable prospect of permanent survival, then by definition, no human has been "born alive."

This is a startling assertion. If it were true, it would have alarming implications. Humans are often born alive a month or more before they reach the point where such "sustained survival" –- that is, long-term survival –- is likely or possible (which is often called the point of "viability") -- a point that begins at about 23 weeks. In induced-labor abortions, labor is deliberately induced as an abortion method, and live births are not uncommon. For example, in testimony before the Illinois Senate Judiciary Committee on March 27, 2001, nurse Jill Stanek said: "It is not uncommon for a live aborted babies to linger for an hour or two or even longer. At Christ Hospital one of these babies once lived for almost an entire eight-hour shift. Last year alone, of the 13 babies that I am aware of who were aborted at Christ Hospital, at least four lived between 1-1/2 to 3 hours, two boys and two girls."

The September 2000 report of the U.S. House of Representatives' Judiciary Committee on the federal BAIPA (H. Rept. 106-835) summarized additional testimony regarding this practice:

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 still alive, and then simply allow those who are born alive to die. . . . According to the testimony of Mrs. Stanek and Mrs. Baker . . . physicians at Christ Hospital have used the procedure to abort healthy infants and infants with non-fatal deformities . . . 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. The nurses also witnessed hospital staff taking many of these live-born babies into a ‘soiled utility room’ where the babies would remain until death. Comfort care, the nurses say, was not provided consistently." (see pages 8-9 of H. Rept. 106-835).

One example given by Mrs. Stanek was that 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." (Id. at 9). Mrs. Baker testified that she "happened to walk into a ‘soiled utility room’ and saw, lying on the metal counter, a fetus, naked, exposed and breathing, moving its arms and legs."

Yet, since the particular babies described in these passages (unlike some other abortion survivors) did not possess lungs sufficiently developed for permanent survival, under the Kmiec doctrine, they were never really "born alive" at all.

Here is a hypothetical scenario that illustrates some of the troubling implications of such a doctrine, (This is merely a hypothetical for the purpose of illustration, not a description of an actual case.)

Hypothetical: In an induced-labor abortion, at 21 weeks gestation, a human is born alive. In this particular case, it appears unlikely that the newborn will survive for more than six hours. However, after one hour the abortion doctor, who has another appointment, simply picks up a hammer and brings it down on the baby’s skull.

Under the Kmiec doctrine, this could hardly be a homicide -- because under the Kmiec doctrine, there has been nobody "born alive" in this scenario. This dovetails neatly with the theory that Obama himself articulated for opposing the state BAIPA in 2001. He said that the bill was probably unconstitutional (under his vision of Roe v. Wade) because it defined a "previable fetus" as a person -- even though that definition only applied to humans who were entirely outside their mothers, and alive.

Fortunately, Kmiec is wrong about the antecedents to the BAIPA. Contrary to Kmiec's assertion, the BAIPAs proposed to codify a definition of "born alive" that was quite traditional, and that was already the law in many states. I quote from the report on the federal Born-Alive Infants Protection Act of 2001 (H.R. 2175), Judiciary Committee, U.S. House of Representatives Report 107-186, August 2, 2001, pp. 7-8:

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 [the federal BAIPA] 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. The Illinois statute provides a model of this definition:

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.

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."

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.

I have omitted the footnotes, one of which lists the 30 states that had, at that time, definitions of "live birth" that were the same or nearly the same as that incorporated into the federal and Illinois BAIPAs.

Allow me to now address Kmiec's central claim, which Mr. Waldman apparently found persuasive. Kmiec wrote: "In essence, the act imposes on the birth process the over-extension of life support to a dying patient without any reasoned chance of survival."

There is no basis for this claim, and the House Judiciary Committee report on the federal BAIPA refuted it directly as follows:

[This legislation] 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 [the federal BAIPA] 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.

Thus, with the federal BAIPA in force, in any facility within the reach of federal law, it would not be defensible to provide comfort care and pain relief to a very premature baby who had been born by spontaneous premature labor, while sending a baby at the same stage of development who was born alive after an abortion to a soiled utility closet. But there is nothing in the federal law, and there was nothing in the virtually identical Illinois bill, to require medically futile measures for either baby. Under the BAIPA both baboes have the same human status and they must be afforded the same human rights.

Kmiec also asserts that the Illinois state BAIPA was "very likely unconstitutional in most of its applications." Kmiec offers no support for this statement, nor is he likely to produce any persuasive support for it. The federal BAIPA has been in law for six years, and it is virtually identical to the state bill that Obama killed. The federal bill has been cited by federal agencies and by at least one federal court. I am unaware of any party or group that has suggested that it is unconstitutional in any specific application, much less "unconstitutional in most of its applications."

Kmiec, like Obama, seems content to regard the living but "previable" human infant as a legal non-person. However, Kmiec says he nevertheless would have voted for the Illinois BAIPA on the chance that it might have helped in what he asserts to be the "rare possibility" of the live birth, during an abortion, of an infant "in viable condition." However, Kmiec asserts, "there are general in just about every state -- including Illinois -- already protecting viable, premature infants from harm."

This is apparently a reference to an old Illinois law (720 ILCS 510.6), which Obama has recently been trying to hide behind. That is an extremely weak law, which comes into play only when the abortionist himself declares in advance that the human being aborted enjoys "a reasonable likelihood of sustained survival . . . outside the womb," in which case a second physician is supposed to be on hand to care for the child. The law has no application all to babies in the 18-22 week range, although they may often be born alive.

Even with respect to babies who are certainly past the point of “viability,” this law has some expansive loopholes, and any likelihood of enforcement was rendered even more remote by a consent decree issued by a federal court which nullified some of the key definitions. During the time Obama was in the state senate, legislation was proposed to tighten up this law to make it more likely that post-viable abortion survivors would get the help they need. Obama opposed that bill, too, saying that “it’s important to understand that this issue ultimately is about abortion and not live births."

It is not surprising that he thought so. For Obama, "the right to abortion" trumps every other consideration.

The position that Obama embraced on the BAIPA language was rejected by the U.S. House of Representatives by a vote of 380-15 in 2000, rejected by the Senate by a vote of 98-0 in 2001, and rejected by both houses without a dissenting in 2002. Kmiec’s imaginative re-interpretation of the legislation is the latest in a series of contradictory and implausible attempts to throw protective smokescreens over what Obama did and the reasons he gave at the time for doing it.

We think that Obama’s actions on this issue reveal a great deal about the way he approaches abortion policy questions in general, and we explore that further in a NRLC White Paper titled “Barack Obama’s Actions and Shifting Claims on the Protection of Born-Alive Aborted Infants -– and What They Tell Us About His Thinking on Abortion,” which is posted prominently on the NRLC website at www.nrlc.org.

Douglas Johnson
Legislative Director
National Right to Life Committee

What I love about the National Right to Life Committee on this issue is that they want to give universal health care to 21 week old born-alive fetuses that will not survive no matter how much heroic effort is wasted on it,

Dawn, I don't know what you mean by "universal health care" (I suspect you don't either), but what it appears that the NRLC wants to offer to "21 week old 'born-alive' fetuses" is the right not to be thrown in the trash to die of neglect. Also, while it is true that 21-week preemies rarely survive, it is quite common for 24+ week preemies to survive. These would have also been protected by the bill.

but when Obama and the other democrats passed efforts to give universal health care to all children until age 18 regardless of their parent's ability to pay, while republicans fought it, Bush vetoed it. Then they passed it again - and Bush vetoed it again

I assume you are talking about the S-CHIP program. Bit of a non-sequitor, but to address it briefly, the poor and their children are covered by Medicaid. What Obama and his fellow Democrats wanted to do was to expand government health insurance to cover the children of the middle class; people that should be able to buy their own health insurance. I am not sure it makes a lot of sense to do that. I think you are confusing "health care" with "health insurance". Under our current system, everyone has access to health care, regardless of ability to pay, but not everyone has health insurance. Under nationalized health systems, everyone has health insurance, but health care is rationed by the government. I personally think our system, while is does have its faults (many due to government interference), is the better one.

I'm also a former student of Prof. Kmiec. I used to have a great deal of respect for him.

Look, the point here, it seems, is that the Act lumps non viable in w/ viable. If it wasn't intended to require the same level of intervention that is mandated in the latter instance to be utilized in the former, what was it's purpose? Taking this a step further, Obama viewed this(correctly, I believe)as an attempt to place a heavy burden on the exercise of rights recognized under Roe, i.e, demanding heroic, life support measures (and the dramatically increased costs attendant) in cases involving the non viable. He merely asked the sponsors to add language similar to that contained in the federal bill and, significantly, was rebuffed.

Frankly, the question as to why Obama voted agaainst the bill has been answered, and hardly in terms that support the absurd notion that he favors infanticde. The better question is this: if all the bill proponents needed to do to get his vote was to include an amendment which they now claim would have been meaningless, why didn't they make the change? More to the point , this crap isn't about infanticide, but the use of slander to try and elect John McCain, who promises to make the judicial appointments needed to role back Roe.

PS: No disrespect to Ms. Jessen, but her claim that Obama's vote on this bill would have killed her is also a distortion. I have no idea what the other,particular circumstances or what the state of the law was in the jurisdiction where her mom had her abortion, but I do know that Ms Jessen, according to all reports was a 7 MONTH baby, and NOT a non-viable baby(toward which THIS bill was directed). In short, she's certainly entitled to what I'm sure are her deep convictions on abortion. However, I don't care too much for attempts to use her story as a springboard for the kind of distortion being advanced.

Max, above, seems to be confused on several important points. For one thing, he seems to working off of an old Obama disinformation line that was discredited, and reluctantly abandoned by Obama more than a month ago. This was the Obama claim that there was a big difference between the federal and state bills, because the federal bill had a one-sentence "neutrality clause" (a clause that said, quite redundantly, that it did not affect a human's legal status before being "born alive"), while the state bill (Obama claimed) did not have this clause.

However, on August 11, 2008, the National Right to Life Committe released recently uncovered documents that proved that Obama, presiding over a meeting of the committee he chaired on March 13, 2003, actually added the verbatim federal "neutrality clause" to the bill -- and THEN Obama voted against the amended bill, and led all his committee's Democrats in voting it down, killing it.

When asked about our August 11 release, in an August 16 television interview, Obama said three times that we were "lying." Regarding this, a report issued by Annenberg's FactCheck.org on August 25 concluded, "Obama's claim is wrong . . . The documents from NRLC support the group's claims that Obama is misrepresenting the contents of SB 1082 [the 2003 Illinois BAIPA]."

So, now hear this: The bill that Obama killed was, and has now been acknowledged to be, virtually identical to the federal bill that passed Congress without a single dissenting vote in 2000. I have reproduced the entire text of the bill that Obama killed, below my signature. Please point out the language, in this three-sentence bill, that interferes with an "abortion," unless you mean an "abortion" carried out after the baby is entirely born alive.

The bill recognizes any human who is born alive as a legally protected person, no matter what her stage of lung development or health. At the time that Obama killed this bill, "viable" live-born aborted infants in Illinois had very, very weak protections (and Obama opposed other bills that would have strengthened them), and "nonviable" live-born humans were not protected.

Douglas Johnson
Legislative Director
National Right to Life Committee
legfederal//at//aol.com

Point-counterpoint rebuttal to Obama claims, with links to primary documents, here:
http://www.nrlc.org/ObamaBAIPA/WhitePaperAugust282008.html

What follows (between the **) is the ENTIRE TEXT of the bill that Obama voted against, and killed, in a committee that he himself chaired, on March 13, 2003.

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

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

Sec. 1.36. Born-alive infant.

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

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

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

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

Max,

Thank you for presenting such a complete description of your case. It involves a number of ethical and legal issues that, while certainly important and interesting, would take us pretty far afield from question of the rather simple legal doctrine incorporated by the Born-Alive Infants Protection Act (BAIPA), that doctrine being that any human who has achieved "complete expulsion or extraction from its mother," and shows any of the defined signs of life, is to be regarded as a legal person, regardless of the process by which the live birth occurred (natural or induced). It a doctrine that ultimately was enacted by Congress (for all federal law purposes) without a single dissenting vote in 2002 -- a year before Obama personally killed virtually identical legislation in the committee he chaired.

During consideration of the federal BAIPA, the question was raised as to whether such a doctrine would require futile forms of medical intervention. This question was addressed clearly in the report of the U.S. House of Representatives Judiciary Committee on the bill, as follows:

[This legislation] 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 [the federal BAIPA] 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.

It should be obvious that if a baby is born alive during an abortion, and is then left alone naked in a soiled utility room, he or she is not being treated as a person. And over the years, there have been many reports from many states of even worse things than that happening to babies who are born alive during abortions.

Thus, with the federal BAIPA the law since 2002, in any facility within the reach of some applicable federal law, it would not be defensible to provide comfort care and pain relief to a very premature baby who had been born by spontaneous premature labor, while sending a baby at the same stage of development who was born alive after an abortion to a soiled utility closet. But there is nothing in the federal law, and there was nothing in the virtually identical Illinois bill, to require medically futile measures for either baby. Under the BAIPA both babies (aborted and non-aborted) have the same human status and they must be afforded the same human rights.

You wrote, "I've also believed that a failure to render the appropriate standard of care to a viable newborn can (and should) be addressed under prevailing laws of negligence, if not those respecting homicide." However, in the case you describe, although labor was induced around the seventh month, which in an ordinary case would be far past the "viability" point at which long-term survival outside the womb is possible, you would categorize this particular infant as "non-viable" because of the underlying disorder, if I understand you correctly. So, for the sake of discussion, if that infant was to be categorized as "nonviable," then what legal status did she have for the hour that she was among the living? To make it simple, let's just consider whether the laws "respecting homicide" applied to her.

Consider a purely hypothetical case in which all the circumstances were exactly the same as those who describe, up to the point of the live birth. In this hypothetical, rather than taking the baby down the hall to the parents, the attending licensed physican walks over to the tray on which the newborn baby had just been placed, glances at his watch, says "I'm really late for an important meeting," and brings a hammer down on the skull of the "non-viable" infant. In your view, would the law "respecting homicide" apply in that instance, notwithstanding the infant's "non-viable" status, and notwithstanding the fact that the infant had an anticipated lifespan of one hour? If your answer is "yes," then if you'd been a senator your vote on the BAIPA should have been "yes."

By the way, as I explained earlier, until a few weeks ago, Obama had claimed that there was a great difference between the language of the federal and state bills, a difference that he said justified his opposition. Once that claim was discredited, his campaign shifted to other misleading claims, one of these being that babies born alive during abortions in Illinois were already protected by an older law, 720 ILCS 510.6. In reality, that old law has no application except when the abortionist himself declares that the entity being aborted enjoys "a reasonable likelihood of sustained survival . . . outside the womb," so clearly it would not have applied in your real case or in my hypothetical case. Indeed, it is quite clear that my hypothetical hammer-wielding doctor would in no way be in violation of 720 ILCS 510.6. (That law provides very, very weak protection even to certainly "viable" abortion survivors, but these need not detain us at the moment.)

Consider also Senator Obama’s stated reason, in 2001, for opposing the Born-Alive Infants Protection Act -- this being that Roe v. Wade forbids defining an aborted "previable fetus" (even after live birth) as a legal person. It appears to me that under Obama's legal theory, the hypothetical hammer-wielding doctor would not be committing a crime against a person, because there is no "person" under his theory. It appears that under this theory, the hypothetical abortionist would merely be completing the abortion, outside the womb, still operating under the protection of Roe v. Wade. (For the verbatim Obama quotes, see the NRLC White Paper of August 28, 2008, here:
http://www.nrlc.org/ObamaBAIPA/WhitePaperAugust282008.html )

Here is one other pertinent point. Above, I provided the complete text of the version of the Illinois BAIPA that Obama killed in his committee on March 13, 2003, which was virtually identical to the already-enacted federal law (contrary to Obama's subsequent claims). But an earlier version of the Illinois bill (which Obama also opposed, of course) contained one additional sentence, which is referred to as the "immediate protection clause." As recently as August 19, 2008, the Obama campaign issued a document that quoted this specific sentence as a particular justification for Obama's opposition to the legislation. This is the sentence: "A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law." The August 19, 2008 Obama document called that sentence "Language Clearly Threatening Roe."

Thus, under Obama's vision of Roe v. Wade, even a live birth is not enough to confer "human rights," in the abortion context at least. Viewed in light of this history, his August 16 response to Pastor Rick Warren, that deciding "at what point does a baby get human rights" is "above my pay grade," acquires additional significance.

Douglas Johnson
Legislative Director
National Right to Life Committee
legfederal//at//aol-dot-com
http://www.nrlc.org

OBAMA = BETRAYAL
Obama supporters are foolish to think that he will never betray them.
Obama was a close friend of Pastor Wright for TWENTY YEARS.
Obama threw Wright under the bus for personal ambition.
McCain would not betray his country even after 5 years of torture.
You can put lipstick on a traitor, but he's still a traitor.

Secondly, and with no disrespect intended, your claim that physicians in Illinois (or anywhere else) enjoy an exemption from proscecution for smashing the skulls of newborns with a hammer is absurd. Nor have I suggested that this hinges on whether the newborn is or is not viable. Again (and regardless what you insist are the shortcomings of 720 ILCS 510/6), the application of a homicide statute does not hinge on whether the victim is 50 minutes or 50 years old.

I didn't say that I think the abortionists "enjoy an exemption." But it is not my interpretation of proper constitutional doctrine we're concerned with here -- it is Obama's.

Sure, a garden variety homicide law applies to a person who is 50 minutes old -- but there does have to be a person, and that person has to have been "born alive." (Many states have "fetal homicide" laws, but these generally apply to an "unborn child" or "fetus" in utero, which is not the situation we are talking about, and besides, these laws contain exemptions for legal abortions.) The purpose of the BAIPA was precisely to clearly define what it means to be "born alive" and to clearly establish that legal personhood applies to any "born alive" human "at any stage of development."

The position that Obama took, at the time he opposed the BAIPA, was that it was unconstitutional, in the abortion context, to define what he called a "previable fetus" as a person, even though the bill only did so with respect to humans who were entirely expelled from the mother. I do not accept the proposition that he did not understand the bill. He understood the bill very well -- it was only three sentences long, he was on the committee that reported the bill out, he was a law school instructor, and his articulated argument themselves demonstrate that he understood the bill -- he just disagreed with its purpose.

(Again, Obama's verbatim statements, their context and their import, are explored in detail here:
http://www.nrlc.org/ObamaBAIPA/WhitePaperAugust282008.html )

So, under the Obama theory -- that in the abortion context, the Constitution does not allow recognition of the "previable fetus" ex utero as a person -- the hypothetical hammer-wielding abortionist cannot possibly be committing a homicide, because nobody has been "born alive," and there is no "person" who could be the victim of a homicide. There is only a multi-stage abortion in progress.

You really cannot have it both ways. If the aborted live-born but "previable" human is not a person (and has not even really been "born alive" in the legal sense, as Obama apologist Doug Kmiec recently suggested in a book), then he or she is not protected by any homicide statute -- and if that were so, what, then, would be the legal barrier to infanticide?

However, I take it that your position is that the aborted newborn human, even if previable, even if in some certain case she has an anticipated lifespan of only one hour, should indeed be regarded as a person who enjoys the same legal protections as the rest of us, Roe v. Wade notwithstanding. I agree, and that's the same conclusion that most of the lawmakers who considered the question arrived at when they voted on the BAIPAs. The federal BAIPA passed the U.S. House in 2000 by a vote of 380-15, by the U.S. Senate in 98-0, and by both houses without a dissenting vote in 2002.

But Obama never came to agree. A year later, he personally presided over the committee meeting that killed the virtually identical language. And as recently as August 19, 2008, an official Obama campaign document characterized the following sentence from the original Illinois BAIPA as "Language Clearly Threatening Roe.": "A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law."

You ask what the definitions in the BAIPA would achieve "in practical terms." This, again, is a question discussed in detail in the House Judiciary Committee report, in documents issued by the federal Department of Health and Human Services after enactment of the federal law, and in other places. But just as examples: One "practical" implication would be that it is not acceptable to leave living infants in a soiled utility room. In addition, abortionists of all stripes are also put on notice that the right to kill conferred by Roe v. Wade does not extend beyond the womb.

Douglas Johnson
Legislative Director
National Right to Life Committee
Legfederal--at--aol.com
www.nrlc.org

Max,

I think it is time to bring this particular exchange to an end, because I find it impossible to have a rational discussion with somebody who so persistently misstates what I have said, even though it is printed there before his eyes on the same page.

I am afraid, Max (meaning no disrespect), that you are the one with the "hyperactive imagination," because you say that I have "conceded" that "the bill [the BAIPA] had nothing to do with combatting infanticide." I invited any fair-minded reader to review everything I have said on this thread, or anywhere else, and then puzzle over how anything I've said could possibly be construed to support such a mischaracterization. Far from conceding anything of the kind, I have spent considerable space above trying to explain to you (obviously without success) why there is no legal barrier to infanticide if a "previable fetus," entirely outside the mother alive, is not recognized as having been "born alive" and is not recognized as a legal "person." You have utterly failed to address this point, resorting instead to pounding the table, repeating the same unsupported assertions over and over again, and now invective and name-calling. I think, however, that most readers, lawyers or not, will readily grasp the concept that a regular homicide law cannot be used to prosecute someone for an act directed at an entity who has not first been "born alive."

The purpose of the BAIPA was precisely to establish that all humans "born alive," as defined by the bill, are indeed legal persons, "at any stage of development." Therefore, the bill had a great deal to do with closing the door to legal infanticide. You may prefer to believe that the door was not already open, but for others interested in further information on the subject, I would recommend the report of the U.S. House of Representatives Judiciary Committee on the BAIPA, which can be downloaded from our website archive here (it is item B3):
http://www.nrlc.org/ObamaBAIPA/Index.html

I cited the existence of "fetal homicide" statutes only to point out that they have no bearing at all on cases of the type that we are discussing. One reason that many Roe supporters (by no means all Roe supporters) also support "fetal homicide" bills is that those bills contain exemptions for legal abortions; your assumption that support for "fetal homicide" bills can be extrapolated into the abortion context is unfounded. Obama's objection to the BAIPA was specifically that the bill recognized a "previable fetus" as a person in the abortion context (although only after a live birth).

I have said nothing to suggest that it was "a misreading of the bill" to suggest that the bill recognized a "nonviable" human as a person to the same degree as a viable human -- on the contrary, the bill says "at any stage of development" -- but with the important distinction that this recognition of personhood on its face applied only with respect to humans who were entirely expelled from their mothers, and alive. Senator Obama, "the former editor-in-chief of the Harvard Law Review," understood very well that that definition only applied post-natally, but that distinction did not matter to state Senator Obama -- he said the definition violated Roe (his vision of Roe).

Your suggested question for Obama, regarding a baby delivered at 25 weeks, is off point, since with modern neonatal care, a baby born at 25 weeks would have a very good chance of long-term survival, while Obama's objection to the BAIPA was, again, that it recognized what he called the "previable fetus" as a person in the abortion context. However, during Obama's tenure in the state Senate there were also attempts to increase protections exclusively for "viable" infants born alive during abortions. Obama opposed those bills, too. (As noted elsewhere, the Illinois law dealing with post-viability abortions is ridden with loopholes. It does not apply except when the abortionist himself declares that there is "a reasonable likelihood of sustained survival of the fetus outside the womb." This already-weak law was further weakened by a lengthy consent decree issued by a federal court in 1993, which among other things permanently prohibits authorities from enforcing the law’s definitions of "born alive," "live born," and "live birth.") On April 4, 2002, Obama spoke on the Illinois Senate floor against a bill (SB 1663 – which was not the BAIPA) that would have more strictly defined the circumstances under which the presence of a second physician (to care for a live-born baby) would be required; Obama argued that this would "burden the original decision of the woman and the physician to induce labor and perform an abortion . . . [I]t’s important to understand that this issue ultimately is about abortion and not live births." (This quote appears in the White Paper.)

As to putting questions to Senator Obama, questions have been directed to him and to his official spokespersons in the recent past, and an official response was issued by the campaign as recently as August 19, 2008. I have quoted from the document twice earlier in this thread -- it is the document that asserts on Obama's behalf that the following sentence from the original Illinois BAIPA was "Language Clearly Threatening Roe.": "A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law." You have been silent regarding this statement by Obama. I can understand your silence. The statement illustrates that Obama still believes, as he said in 2001, that it violates Roe (his vision of Roe) to recognize a live-born (previable) child born as the result of an abortion as a human person. And if that child is not a human person, then the hypothetical abortionist with his hammer cannot be prosecuted under the regular homicide law if he completes the abortion outside the womb. A lawmaker should be accountable for the predictable effects of the laws that he supports, or opposes, and especially accountable when the arguments that the lawmaker articulates for his position lead ineluctably to those results.

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

Doug,

It's not my intention to be unkind, but I think it's YOU who needs to reread your own posts, incuding either the Committee report you cite; the excerpt you lifted from it; and/or your "whitepaper".

That excerpt from the Committee report makes it quite clear that this sort of legislation makes no change in the accepted standard of care for non-viable newborns, and there's certainly nothing in the remaining materials that contradict this point. Likewise, the same excerpt acknowledges that the recognized standard of care toward non-viable newborns is limited to comfort care { RATHER THAN calling for either futile, lifesaving measures OR bludgeoning such newborns to death). Similarly, when I asked you (twice) to specify the anticipated, practical effect of such legislation (so as to clarify whether it would effectively mandate comfort care or, instead, heroic measures) your only illustration consisted only of a prohibition against leaving "living infants in a soiled utility room". I haven't construed this as precluding other forms of comfort care, but neither did this seem to dispute the standard of care mentioned OR it's preservation under the terms of such legislation.

Further, if it's now YOUR position that that there is NO legal protection for non-viable newborns(and NOT merely that such protection is absent from FETAL homicide statutes), you've certainly altered your position rather quickly. Remember saying, just a few posts ago, "I didn't say that I think that abortionists 'enjoy an exemption (from prosecution for killing non-viable newborns with a hammer,etc.)'?. Remember claiming that this merely decribed "Obama's theory"? Be that as it may, if this is your position, I think I can say with confidence that you've staked out a position that no prosecutor in this country (or Obama)would endorse(and whether the newborn in question had been delivered at 25 weeks OR only 17). Likewise , your claim that I've "utterly failed to address this point" is plainly in error.

As I pretty clearly stated in an earlier post, an overt act, inflicting fatal injuries on a newborn (viable or not), and with the intention of causing harm, is subject to prosecution under any homicide statute I've ever heard of. Indeed, that is itself entirely consistent with your OWN claim that the "born alive" doctrine is historically one of general acceptance. The notion that that these homicide statutes have suddenly been given a lesser reading, and now permit ANY newborn, viable or otherwise to be dispached with hammers or sawn into firewood, is patently absurd. You have not and cannot cite a single instance in which such a ruling, and in reference to the death of a specific newborn, has been made and upheld on appeal (rather than extrapolated by you and/or others from rulings in other settings). Nor can you point to an instance where Obama has specifically embraced such nonsense.

Accordingly, when you quoted the portion of the Committee report which also notes the accepted standard of care, AND seemed to simultaneously disavow this nonsense of an "open season" on non-viable newborns, I sort of assumed that you were thus conceding the obvious. That is, that since the bill in question WASN'T designed to alter a standard of care, respecting non-viable newborns, that is already limited to NON-lifesaving measures, and since ordinary homicide statutes already address the overt killing of such newborns, it's incorrect to describe the bill OR one's opposition to it as representing opposing views on infanticide.

As I now understand it, however, YOU now wish to embrace, as a personal conviction, the proposition that EXCEPT in those states where a "born alive" statute(or it's equivalent) has been enacted, an open season on such newborns exists, and it's on this basis that anyone(including Obama) who opposed such legislation can be properly deemed an advocate for infanticide. If you believe that doctors can't be prosecuted for bludgeoning a non-viable baby to death, that fringe group I mentioned just got a lot smaller. Again, I've looked at every document on your website, including those generated by Obama's campaign. I find nothing wherein the Senator stated support for infanticide. Instead ,there's only repeated efforts by you folks to so characterize his position.

This brings me to the material on which you seem to think I should have offered comment (and actually consisting of a partial sentence; appears in a release by his campaign; and which characterizes the same language, appearing in three "born alive" bills opposed by Obama, is characterized as "threatening" to Roe). Fine, I'll do so.

Basically, this material (which, of course, well POSTDATES the surfacing of the "infanticide" claim) indicates that Obama considered the language specified(and, I guess in the context of the bills in which it appeared) to be threatening to rights preserved under Roe. Now, whether you agree with that assessment or not, it falls quite a bit distant from an endorsement of infanticide, or a basis for attributing such a view to Obama.

Am I the only person who thinks that? Nope, because I know of at least one other person who apparently agrees . "Who,you say?" It's a fellow named Richard Winkler. You remember Richard, don't you? Why, he was the sponsor of the last of the three "born alive" bills which Obama opposed, and in which the language that he considered threatening to Roe, appeared. Was Richard upset by the defeat of his bill? you betcha. Nevertheless, Richard didn't make the quantum leap in specious reasoning that you have. Instead, Richard recognized that none of 6 legislators who voted against his bill favored infanticide- and has said so. How do I know this? Well because 8 days BEFORE you issued your "whitepaper", Richard was quoted to the same effect in a very lengthy article analyzing your claimsand appearing in the August 20,2008 web version of the Chicago Tribune. The article certainly points to inaccuracies in Obama's account of the details surrounding the legislation, but confirms what was then a prevailing distrust as to the actual purpose of the legislation, and debunks this disgusating claim that that those who opposed it were in favor of infanticide.

**********

In the end, you folks have been far more interested in making much of a lack of exactitude or accuracy in Obama's assessment of the legislation or explanation of his vote, than in applying any semblance of rigor to yourselves and in determining what is to serve as a sufficient basis for the kind of scurrilous claims you've made. You favor an anti- abotion candidate? Fine, nobody's surprised by that. This effort, however, to try and demonize someebody on a basis that doesn't even pass the smell test, you really ought to be ashamed of yourselves.

Roberta,

You're very kind, especially in not drawing attention to my typos and the instances where I changed wording, but without erasing the wording to be replaced.

I don't work for Obama or live in Illinois and,honestly,only started looking at this issue because of the extravagance of the claim; I'd have done the same thing, for example, if someone had claimed that John McCain is the missing Zodiac killer.

In looking at this, it seemed that what does the best job in unraveling all of this is the extremely long and detailed Tribune blog by Eric Zorn(which I only stumbled upon by way of a link from RH Reality Check); you can't find it on or get to it fom the Tribune web page, but it's worth tracking down and reading. It's funny, because your perspective, with which I also agree, is sort of confirmed in the various accounts by the "insiders" in the Zorn blog,as to what went on.

While I saw no benefit in introducing all of this into the conversation with Douglas Johnson, what really jumped out of the article at me were 4 things.

First, it appears that in actuality, there were as many as 16 measures packaged into these several "born alive" efforts, which may well partly explain any confusion as to the details.

Second, insofar as Obama was, perhaps, a bit paranoid as to what these bills were intended for, he wasn't alone. Rightly or wrongly, the involvement of right-to-life groups helped raise these doubts, rampant throughout the state Senate majority.

Along these same lines, what happened after Obama moved on to Washington (as described in the blog by Representative John Fritchey) is extremely revealing. After introducing still another bill essentially to the same effect, but this time in the Illinois House, the sponsors were bluntly informed by Fritchey(who chaired the relevant committee) that the bill was going nowhere unless wording was added to make sure that it wasn't some sort of anti-abortion Trojan Horse. The bill eventually passed, but only after new wording, specifically to the effect that it's provisions were to make no change in existing abortion rights, was added.[Interestingly, this new wording was added only after strenuous resistence from the sponsors, which I guess makes you wonder if maybe Obama wasn't so paranoid after all.]

Third, the docments that Johnson and his pals have described as newly found bombshell items(as if marked "top secret" and pulled from Al Capone's safe) and evidencing the amended version of one of the bills,is something less than that.

Finally, there's Richard Winkel's own account; unhappy with the difficulty he encountered in getting the measure passed, but honest enough to reject this "infanticide" slander.

In the end, I think what Zorn describes is consistent with your observation. There was, justified or not, a shared distrust which probably gave rise to an array of unconfirmed suspicions as to what the true objective was. If Obama has failed to provide a cogent, perfectly logical account of those events, perfectly dovetailing with documents available, I suspect that it's due to a variety of factors, none sinister. This swift boating(and that's what it is) is just another example of the "win at all costs" brand of politics.

This is why lawyers shouldn't be allowed in the legislature. They come up with the most convoluted argruements. The facts are simple, the baby is alive and if you feed it, it stays alive, if you refuse nutrients and water, you killed him/her. Now I want all lawyers to hold their breath until we vote on it.