Prepared by Concerned Women for America of Illinois
January 2005

1.      If the Born Alive Infants Protection Act was signed into law on the federal level, why is it needed in individual states?

In general, it is best to think of federal law and state law as two separate realms and to independently evaluate the adequacy of each.

To begin, most crimes of violence are governed exclusively by state law, not federal law. 

Furthermore, the federal BAIPA only establishes that when the terms "person," "human being," "child," or "individual" appear in a federal law or regulation, they must be construed to include a "born-alive infant," and BAIPA provides an explicit definition of what it means to be a "born-alive infant."

The federal BAIPA applies everywhere in the U.S. But it applies only to the interpretation of federal laws and regulations.   Thus, if a federal prosecutor had at hand some federal law or regulation that would be violated by putting live aborted babies in biohazard bags to suffocate, then BAIPA ensures offenders can't get off by arguing they weren't really persons/humans he was putting in the bag.  But first there must be a federal law or regulation that applies to the act at all.

The same question could arise under the laws of a state:  Is this entity who is outside the mother a "person" for purposes of this or that law? 

Suppose a baby is born alive during an abortion, and the abortionist smothers the baby with a blanket.  The district attorney charges him under the state murder or manslaughter statute, but he offers the defense that what he killed was not a "human being" but a "fetus ex utero" (or whatever).   The state court would look to the state law to determine whether or not there was indeed a legal victim.

There is a recent case demonstrating that current Illinois state law regarding “born-alive infants” is inadequate and archaic.

Palatine, Illinois, resident Elizabeth Ehlert was twice convicted of murdering her newborn daughter in 1990 at delivery, alone in her bedroom.  But in 2002, an Illinois appeals court determined, “[T]he single, short cry the witness [boyfriend] thought he heard, if it occurred, may have occurred before complete separation from the mother, and therefore it is not sufficient to prove live birth.  Because the evidence cannot support a finding beyond a reasonable doubt of live birth, we must reverse the conviction.”

According to Legal Affairs magazine, reporting on the Ehlert case in its September/October 2004 issue:

“Illinois common law holds that a baby is not a person until it has established a life independent of its mother. The separation doctrine… according to the Illinois Supreme Court, holds that "a fetus must be totally expelled from the mother and show a clear sign of independent vitality" before it can be considered to have been born.”

Added the Daily Herald on September 17, 2003, “Attorneys for Cook Co. State’s Attorney Richard Devine… said given current forensic and medical technology, the 183-year-old law no longer makes sense and should be overturned. ’What you have here is the horrific scenario in which a mother who doesn’t want her baby delivers the baby, the baby is out and still connected by the cord, and under the complete separation doctrine… she can kill that baby,’ said Peter D. Fischer, an assistant Cook Co. state’s attorney.  ‘She can stab it, she can strangle it, do anything and it’s not murder.  This killing of a full-term, 6-pound, 19-inch long baby is nothing, and we believe that rule cannot stand in the modern age.’”

In closing, a given act might simultaneously violate both federal and state laws.  Then, both offenses could be prosecuted separately by the respective sovereigns.  For example, shooting a federal judge would violate the state murder law but also a federal law against killing federal judges.  If a federal statute is at issue, it could be a statute containing criminal penalties, civil penalties, or no penalties at all.

2.      Some say an Illinois law already exists to protect live-born infants.  Is this true?

410 ILCS 535/1(5) has been cited by opponents to an Illinois Born Alive Infants Protection Act as the state’s legal definition of “born alive”.  But this is a provision of vital records – for census – and has nothing to do with criminal law.

3.      Will passage of the Born Alive Infants Protection Act force physicians to save nonviable babies?

To quote pro-choice Congressman Jerry Nadler (D-NY) during U.S. House floor debate regarding passage of the federal Born Alive Infants Protection Act:

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 nonviable 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.

4.       There is a 13-year-old Illinois law that states a second doctor must be present in the event an abortionist thinks s/he might abort a potentially viable baby alive.  Doesn’t that protect live aborted babies?

Note that the decision to call the second doctor is up to the abortionist.

The Illinois House sponsor of that bill, former state Rep. Penny Pullen, explains the loophole:

The two-doctor rule depends on a pre-delivery assessment by the abortionist that the baby may be viable.

The purpose of BAIPA is to require a post-delivery assessment, which is needed because viability is such a tricky question, and because abortionists will likely err on the side of being able to commit the abortion without inviting a second doctor to assist for the sake of the baby. It subjects the abortionist  to second-guessing by a second doctor.