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Alive: Wanted or not

National | Responding to judicial decisions that approved infanticide, the House moves to protect abortion survivors

Issue: "Who'll be king of the Hill?," Oct. 7, 2000

Jerrold Nadler's momma didn't raise a fool.

The New York congressman, who has built a reputation as the National Abortion Rights Action League's go-to guy, wasn't about to "step into this trap"-legislation in Congress granting full personhood and legal protection to babies who survive abortions.

"The purpose of this bill is only to get the pro-choice members to vote against it so they can slander us and say we are for infanticide," said Mr. Nadler last week as the House passed the measure virtually without opposition. "That's why I voted for it in committee, and that's why we will vote for it on the floor."

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Still, 15 members of Congress-including two of the most fanatical pro-abortion Republicans, Nancy Johnson of Connecticut and Benjamin Gilman of New York-stood up for infanticide. So did NARAL, though even that organization grew uncharacteristically sheepish in its opposition: The abortion industry's voice in Washington, which typically cranks out press releases nanoseconds after Congress acts, placed no statements on the PR Newswire. The one media statement NARAL produced on the subject is no longer even archived on its website. (In July, NARAL condemned the anti-infanticide measure as "yet another anti-choice assault," which could "interfere with the sound practice of medicine.")

Pro-life congressmen used riveting testimony to shed embarrassing light on that "sound practice." They called before a subcommittee hearing two nurses from Christ Hospital in Oak Lawn, Ill., where abortionists employed the "induced labor abortion" method, in which babies are delivered prematurely and left to die. Registered Nurse Jill L. Stanek, who worked in Christ Hospital's delivery ward, testified of a Down syndrome child abandoned to the "soiled utility room because his parents did not want to hold him" (see sidebar, next page).

Nurse Stanek told Congress she cradled the child and rocked him for the last 45 minutes of his life: "He was about 22 weeks old, weighed about a half a pound, and was about 10 inches long, about the size of my hand. He was too weak to move very much, expending any energy that he had trying to breathe. Toward the end of his life, 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 little heart was still beating through his chest wall. After he was pronounced dead, we folded his little arms across his chest, tied his hands together with a string, wrapped him in a tiny shroud, and carried him to the hospital morgue where all of our dead patients go."

Another nurse told of similar horrors at the Illinois hospital, which prompted lawmakers to seize the opportunity to grant personhood rights to abortion survivors. The legislation, the Born-Alive Infants Protection Act, establishes that an infant who is completely expelled or extracted from his mother, and who is alive, is a "person" under federal law. The legislation would apply regardless of such considerations as lung development, chances of long-term survival, whether the baby survived an abortion-and whether or not the child's parents want him.

Lawmakers cited legal developments that obligated them to act: A congressional aide involved in drafting the bill explained that the measure remedies the consequences of a pair of recent judicial rulings that threaten to undo the legal principle that born-alive infants are persons entitled to legal protections. In June, the U.S. Supreme Court struck down a Nebraska law banning partial-birth abortion in Stenberg vs. Carhart. In its ruling, the court majority considered the location of an infant's body at the moment of death-in partial-birth abortion the baby is fully delivered except for the head-to be of no legal significance in ruling on the constitutionality of the Nebraska law. Instead, the aide said, Carhart left open the implicit 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."

The notion didn't stay implicit for long. In July, the 3rd Circuit Court of Appeals made it explicit in Planned Parenthood of Central New Jersey vs. Farmer. In striking down New Jersey's partial-birth abortion ban, the court cited Carhart and Roe vs. Wade, and ruled it "nonsensical" and "based on semantic machinations" and "irrational line-drawing" for a legislature to conclude that a baby's location in relation to its mother's body should bear on whether or not that infant may be killed. The Farmer court further held that a partially born baby is not entitled to legal protection because a "woman seeking an abortion is plainly not seeking to give birth."

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