The existing bill had shortcomings that the BAIPA type laws intended to remedy:
Assertion: The BAIPA was unnecessary, because "Illinois law already stated that in the unlikely case that an abortion would cause a live birth, a doctor should ‘provide immediate medical care for any child born alive as a result of the abortion.’" (August 19, 2008, Obama campaign document)
Response: Obama explained in 2001, and has never recanted, that he opposed the Illinois BAIPA because it declared a "previable fetus" to be a legal person – even though the bill only did so if the baby had achieved "complete expulsion or extraction from its mother." (Obama’s statements are quoted verbatim further on in this white paper.) The old Illinois law in question (720 ILCS 510.6) covered only situations where an abortionist declares before the abortion that there was "a reasonable likelihood of sustained survival of the fetus outside the womb." 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"). The old Illinois law has no bearing on many of the induced-labor abortions about which the nurses testified before the committees in Congress and the Illinois state legislature, because many of them were performed on unborn humans who were capable of being born alive, and who often were born alive, but who were not old enough to have a "reasonable likelihood of sustained survival . . . outside the womb."
Even with respect to "viable" infants, the old law 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."
The September 2000 committee report of the U.S. House of Representatives' Judiciary Committee on the federal BAIPA (H. Rept. 106-835) summarized some of the testimony that indicated why such legislation (federal and state) was necessary:
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." (Id. at 10).
In testimony by Stanek before the Illinois Senate Judiciary Committee, on March 27, 2001, she 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 House Judiciary Committee members of both parties apparently found the nurses’ testimony in 2000 to be compelling (although it should be noted that the committee’s report also provides ample additional justifications for enactment of the BAIPA); the bill was approved by the committee 22-1, and by the full House of Representatives 380-15, notwithstanding the vehement objection of the National Abortion Rights Action League. This was the original, two-sentence version of the legislation, and did not contain the "neutrality clause" that Obama later said was so important.
The BAIPAs recognize pre-viable (as well as viable) live-born babies as persons under the law, which is intended to ensure that they are treated humanely and given whatever care (e.g., comfort care of warmth and nutrition, and medical assessment if appropriate) that a similar baby who had not been marked for abortion would have received. Moreover, under the BAIPAs, any overt act of violence against one of these babies would be a crime against a legal "person," not merely the inappropriate handling of medical waste products.
Here is a hypothetical scenario that illustrates the need for the Born-Alive Infants Protection Act and the troubling implications of the rationale that state Senator Obama gave for opposing it. (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.
Question: Has this hypothetical abortionist violated the Illinois abortion-survivor law (720 ILCS 510.6), the law that Obama is now trying to hide behind? Answer:He certainly has not violated that law. That law comes into play only when the abortionist declares that the entity being aborted enjoys "a reasonable likelihood of sustained survival . . . outside the womb." No physician -- pro-life or pro-abortion -- would affirm that a 21-week fetus has "a reasonable likelihood of sustained survival" outside the womb -- the lungs are insufficiently developed.
Question: In such a scenario, what are the implications of state 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? Answer: Under Obama's legal theory, the hypothetical doctor would not be committing a crime against a person, because there is no "person" under that 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.
Most people, however, and most lawmakers, would have no trouble affirming that the baby in the hypothetical scenario is indeed a human child and that the hammer blow was a crime against a person. When Congress passed the federal Born-Alive Infants Protection Act in 2002, without a dissenting vote, it clearly affirmed the concept that all live-born humans enjoy legal protection, and implicitly repudiated the notion that anything in the Constitution or U.S. Supreme Court rulings dictates a different policy. Yet, in 2003, Obama killed a virtually identical bill in the committee that he chaired.
Moreover, they said the proposed legislation would have undermined the landmark Supreme Court case on abortion, Roe v. Wade, in ways the federal law would not.
This is really nonsense. There are about two dozen federal laws that regulate abortion in various programs and contexts. Moreover, the Supreme Court’s abortion-related constitutional doctrines, on which Obama based his opposition to the BAIPA, apply with equal force to both federal and state laws. Thus, for anyone who thought that it was wrong to define a live-born human as a "person" prior to the point of "viability," the federal bill would have been just as unacceptable as the Illinois state bills, because they did exactly the same thing.
The original two-sentence federal bill, the enacted three-sentence federal bill, the original 2001-2002 Illinois bills, and the amended 2003 Illinois bill, all have this in common: None of them spoke in any way to the legal status or legal rights of a human entity prior to being "born alive," which was defined in every version as requiring "complete expulsion or extraction" from the mother. Thus, no version of the Born-Alive Infants Protection Act ever limited "abortion" in any way – except in the eyes of those who believe that the "right to abortion" can be extended outside the mother, in certain cases.