Vol. 13, No. 3 July-August 2002
Inside this issue...
- Congress Delivers: Born=Alive Infants Protection Act
- Hopes Again Daschled for Cloning Vote in Senate
Possible item of interest to "Ripley's Believe It or Not": For the first time since becoming Senate Majority Leader in May 2001, Sen. Tom Daschle (D-SD) allowed a pro-life measure to reach the Senate floor for a vote!
A seemingly modest bill, the Born-Alive Infants Protection Act was first introduced in July 2000 and passed the House two months later on a lop-sided vote of 380-15, only to be killed in the Senate by an anonymous objection to a request for unanimous consent. Later, attached as a rider to the Patients' Bill of Rights, the pro-life bill passed the Senate 98-0, but it died with that legislation.
Reintroduced in the 107th Congress, the measure (now H.R. 2175) was again passed by voice vote. The Senate agreed to the bill by unanimous consent on July 18, 2002. The Born-Alive Infants Protection Act became law on August 5 at a signing ceremony in Pittsburgh, to which President Bush invited both nurse Jill Stanek, who shocked the country with her eye-witness account of live-birth abortions in a suburban Chicago hospital, and Gianna Jensen, who survived a saline abortion.
Put simply, the Act provides – for the purpose of federal law – that 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 measure also codifies the definition of "born alive" found in the laws of most states – evidence of heartbeat, respiration, and/or voluntary movements after the infant's complete expulsion from the mother.
From its simplicity and from the nearly unanimous votes in Congress one might conclude that no one could oppose it, but that assumption would be wrong. As Professor Hadley Arkes of Amherst anticipated when he conceived this bill over a decade ago, organized pro-abortion groups could not sit by silently while Congress recognized the full humanity of prematurely born children even outside the womb.
Why the Opposition?
Supporters of unrestricted abortion gave three reasons for opposing the Born-Alive Infants Protection Act: it was "unnecessary"; it contradicted Roe v. Wade; and it allegedly misled the public regarding current abortion law and practice.
The National Abortion and Reproductive Rights Action League (NARAL), for example, complained that the bill is "unnecessary because newborn infants already receive full legal protection." As we shall see, however, some doctors and judges have denied that legal rights from birth apply to newborns who survive attempted abortions.
NARAL and others also denounced the bill for "directly contradicting one of Roe's central tenets." Namely, "Roe v. Wade clearly states that women have the right to choose prior to fetal viability." Under their distorted reading of Roe, the privacy "right" to choose to terminate a pregnancy includes a "right" to make sure the child is dead. So if a baby survives an abortion attempt performed before the point of "viability" (or simply slips out alive), as far as NARAL is concerned, it should remain a nonentity, a nonperson. And no efforts need, or should, be taken to preserve the child's life, as would be taken for a "wanted" child born prematurely. Their view, stated plainly, is that the status of a pre-viable "fetus" should not change when she is born alive. It seems to follow that an abortionist is not going far wrong if he kills her by an overt act after her birth!
NARAL also objected to the Act for the following reason:
"This legislation ... seeks to further mischaracterize Roe v. Wade to the American public as a decision that has recently been "expanded" [by Stenberg v. Carhart] to the point that newborn infants are now at risk. Although the legislation was statutorily unnecessary ... it was openly used by its anti-choice sponsors to lure pro-choice lawmakers and advocates into the trap of defending against their preposterous mischaracterizations of the current state of abortion-rights law."
The discussion below should make it clear that supporters of the Act characterized the current state of abortion-rights law accurately.
The Act Is Necessary Due to Developments in Abortion Law and Practice
Nurse Jill Stanek, formerly employed by Christ Hospital in a Chicago suburb, testified to Congress about that hospital's practice of "live-birth abortion." Instead of performing a grisly, mid-trimester abortion, doctors at Christ Hospital simply induced labor, delivered premature infants, and allowed them to die from respiratory distress due to immature lungs. Inductions were scheduled in the weeks just prior to expected "viability"so that children could not survive very long without medical attention. These newborns were simply abandoned to die in a back room or, in one case, accidentally dumped in a hamper with soiled linens. Nurse Stanek was reprimanded for comforting one little victim until he died in her arms 45 minutes later.
Nurses at an Ohio hospital have described caring for babies born alive to patients of partial-birth abortion practitioner Dr. Martin Haskell. Their mothers unexpectedly gave birth outside clinic hours, in a motel or emergency room beyond the reach of Dr. Haskell's scissors. Although some of these children died in the arms of a nurse who took time to cuddle and rock them and sing to them for their few remaining hours, at least one survived and was later adopted.
The research demand for fresh fetal tissue and organs may also be driving abortionists to perform live-birth abortion. Organs are useless to researchers if degraded by poisons or harvested too long after death. Supply contracts sometimes stipulate that organs must be packed for shipping within 10 or 20 minutes after the cessation of blood circulation. A 1990 Redbook article reported that James Bardsley of Anatomic Gift Foundation: "advertises for doctors who use a technique called dilation and evacuation (D&E), in which the fetus is essentially pulled out of the anesthetized woman. Because the fetus is alive when the abortion begins, 'some doctors are squeamish about D&E's,' Bardsley says. But he cannot use fetuses aborted by the more common second-trimester method ... because 'we need tissue that is fairly fresh. We have to process the tissue within minutes of the time of death'" (G. Kolata, "Miracle or Menace?", Redbook, Sept. 1990).
The menace of live-birth abortion comes not only from the relatively small number of doctors willing to cross the line to infanticide. Professor Arkes gives examples of judges and even a U.S. Senator who would deny fundamental human rights to a newborn abortion-survivor and derisively persist in calling the live-born child a "fetus." For example, in 1977 Judge Clement Haynesworth ruled there was no obligation to preserve the life of a child who survived an abortion and surgery and died 20 days after delivery, explaining that, "The fetus in this case was not a person whose life state law could protect."
Arkes also points to a federal appeals court decision striking down New Jersey's law banning partial-birth abortion (Planned Parenthood v. Farmer). In her decision, Judge Maryanne Barry rejected a claim that a child delivered up to his head is "a fetus in the process of being born." Even if the child is alive when he's being removed from the birth canal, one must not speak of "birth" in her view, because a fetus marked for termination is radically different from a "wanted" child in the same physical location.
During Senate debate on the Partial-birth Abortion Ban Act, Senator Rick Santorum (R-PA) tried repeatedly to get supporters of the procedure to explain where they would draw the line on killing a child, if not when she is 4/5ths delivered. He asked Barbara Boxer (D-CA): Could the law not protect the child "once the child is born, separated from the mother"? She side-stepped the question by replying that the child has rights only "when you bring the baby home." When Senator Santorum asked her to clarify her evasive answer, she became irate and refused.
In his dissenting opinion in Stenberg v. Carhart, in which the Supreme Court invalidated a ban on partial-birth abortion in 2000, Justice Antonin Scalia warned that the majority's new application for its own health exception could implicate live-birth abortion. Prior abortion case law discussed the "health exception" in the context of keeping abortion available to serve the mother's mental, physical and emotional "well-being." The Court in Carhart, for the first time, applied the "health exception" to the choice of abortion methods. Because a single practitioner, Dr. Carhart, asserted that the partial-birth abortion procedure was safer for the mother than the widely used dismemberment method, Nebraska could not ban partial-birth abortion without a health exception. Tomorrow, another abortionist could claim that live-birth abortion is safer still (since no instrumentation is involved), and the Court could be bound to find any attempt to ban live-birth abortion unconstitutional without an all-encompassing "health" exception. It is even less invasive to the mother to kill the child completely outside the womb, after all.
Does the Act Contradict Roe v. Wade?
No. The Supreme Court's 1973 holding in Roe v. Wade was that the constitutional "right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The majority opinion went on to state that the scope of this privacy right is not unlimited:
"The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus. ... [It] is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly."
But nowhere does Roe state that her right to decide to terminate her pregnancy equals a right to a dead child, before or after the child's viability, during or after birth. If the goal is to "terminate her pregnancy," that has been accomplished by delivering a (live) child.
What Does the Born-Alive Infants Protection Act Accomplish?
First, the Act establishes a bright line at birth. From that point forward, a child born alive (irrespective of his being "pre-viable" or "unwanted") will be accorded the same rights and protections under federal law as any other "person," "human being," "child," or "individual."
Second, the Act establishes that a child who survives an abortion has an intrinsic worth and dignity as a human person irrespective or whether she is wanted by her mother. This may prove a disincentive to live-birth and partial-birth abortions.
Third, the Act does not establish that such rights are nonexistent before birth. Section 8 (c) reads:
"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." In other words, any current or future rights that the child may be acknowledged to have before birth are not foreclosed.
Fourth, as Professor Arkes explains, this bill "confirms the authority of Congress to bar some abortions." For federal purposes at least, Congress has established a precedent that it has authority to ban a method of "abortion," i.e., live-birth abortions. When it again takes up the question of partial-birth abortion, it will have a "firmer groundwork in place," Arkes argues.
In sum, Congress established the proposition that a child's rights and dignity are inherent (and will be upheld at least outside the womb), and rejected the widespread assumption among abortion supporters that a child's rights depend solely on whether he is wanted by his mother. Congress also established that the right to "terminate a pregnancy" does not imply a right to a dead child. And if this is true, doesn't it make sense to say that a child already 80% born should have a right to travel those last few inches to join the rest of us in the realm of fully recognized legal protection?
Hopes Again Daschled for Cloning Vote in Senate
A full year has passed since the House of Representatives approved the Human Cloning Prohibition Act of 2001 (H.R. 2505), on July 31, 2001, by an impressive vote of 265-162. The proposed Act would ban all cloning of human beings. Since the bill was placed on the Senate calendar on August 3, 2001, Senate Majority Leader Tom Daschle (D-S.D.) has promised repeatedly to schedule a debate and vote on the corresponding Senate bill (S.1899) sponsored by Senators Sam Brownback (R-KS) and Mary Landrieu (D-LA). But after eleven months, the only scheduling deal Sen. Daschle offered would have given a competing phony "ban" a significant strategic advantage over the genuine ban. Sen. Brownback had little choice but to reject the offer.
Sen. Daschle seems determined to run out the clock on this Congressional session without ever permitting floor action on human cloning. Little time remains: there's only one month between the Labor Day end of the Senate's August recess and the October 4 target date for pre-election adjournment. But Senator Brownback remains hopeful of securing a debate and vote by attaching S.1899 to other "must-pass" legislation or, at a minimum, winning approval of a temporary moratorium on all cloning, a stopgap solution recommended recently by the President's Council on Bioethics. (See Richard Doerflinger's July 19 column, "Two Cheers for the Bioethics Council" at /prolife/publicat/lifeissues/71902.shtml.)
By keeping cloning off the floor for the remainder of this session, pro-cloning forces could accomplish two objectives. The delay would guarantee scientists at least another six months to practice cloning humans "for research" (using the same technique – somatic cell nuclear transfer – used in attempting to create cloned infants).
Inaction also gives political "cover" to any Senate Democrat who supports cloning "for research" and is up for re-election in November. Cloning supporters will be spared the discomfiture of explaining to constituents why they voted to let scientists create and kill innocent human beings. Any Senator who has not publicly committed to one of the phony bans (some 53 at the latest count!) can respond with "I'm still studying the issue." Without being pinned down by a recorded vote, a pro-"research cloning only" Senator can still try to fool pro-life constituents by saying "I support the Human Cloning Prohibition Act," because that title is used by some of the phony bans as well.
The Phony Bills
Princeton professor Robert P. George, a member of the President's Council on Bioethics, has rightly observed: "Before any embryos were cloned and killed, truth was the first casualty" (emphasis added; interview in National Review On-Line, July 16, 2002). He was referring to the unfounded claims of all-but-certain cures from cloning/embryonic stem cell (ESC) research, which created false hopes among the suffering and their families. But he might just as well have been referring to the titles of the Senate bills offered as alternatives to S. 1899, the true cloning ban co-sponsored by Senators Brownback, Landrieu et al.
This situation provides a textbook example of why it is essential to refer to specific bill numbers when asking members of Congress to support or oppose legislation.
A pro-"research cloning" Senator can say he or she supports the "Human Cloning Prohibition Act" because there are currently five Senate bills by that name – four of which place no restraints on cloning human beings, but forbid the transfer of a cloned human to a uterus. In other words, researchers may clone all they want; they simply must make sure none of the clones are allowed to live. But even with that "restriction" researchers have little to fear from the phony bans because the Justice Department testified that it lacks any practical means of enforcing a law that only bans transferring a cloned human embryo to a woman's uterus. There is simply no reliable way to tell a cloned human embryo apart from an embryo conceived through in vitro fertilization. A viable cloned human embryo would develop in the same way all human embryos develop, although undetectable anomalies may doom a staggering percentage of cloned mammals in the long run.
Capsule descriptions of the various cloning bills follow:
"Human Cloning Prohibition Act of 2001" (S.1899). Sponsored by Senators Sam Brownback (R-KS), Mary Landrieu (D-LA) et al., it is the counterpart of H.R. 2505 which passed the House over a year ago, and is the only genuine and comprehensive ban on cloning human beings. A total of thirty-one Senators have signed on to this bill. A list of co-sponsors is available from the National Committee for a Human Life Amendment (NCHLA) at http://nchla.org/campaign.shtml or by calling 202/ 393-0703.
Sixteen Senators have signed on to one or more of the following phony bans, leaving a whopping 53 officially "uncommitted."
"Human Cloning Prohibition Act of 2001" (S.1758) is sponsored by Senators Dianne Feinstein (D-CA), Edward Kennedy (D-MA), Barbara Boxer (D-CA), Zell Miller (D-GA), Jon Corzine (D-NJ), Richard Durbin (D-IL), and Hillary Rodham Clinton (D-NY). The "Feinstein bill" abandons the commonly understood definition of "cloning," i.e., "the production" of "an organism that has the same nuclear genome as another organism" (National Academy of Sciences, Scientific and Medical Aspects of Human Reproductive Cloning; National Academy Press 2002, p. E-4). Instead the bill defines cloning as "asexual reproduction by implanting or attempting to implant the product of nuclear transplantation into a uterus" [Sec. 301 (a) (1)].
Note that there is no scientific or legislative precedent for this revisionist definition. The National Bioethics Advisory Commission (NBAC) recognized that cloning, i.e. somatic cell nuclear transfer using a human somatic cell, creates a human embryo: "The Commission began its discussions fully recognizing that any efforts in humans to transfer a somatic cell nucleus into an enucleated egg involves the creation of an embryo, with the apparent potential to be implanted in utero and developed to term." (NBAC, Cloning Human Beings, Rockville, MD: June 1997, Vol. I, p. 3.)
As this passage shows, cloning is synonymous with "somatic cell nuclear transfer," sometimes called nuclear transplantation. Cloning is not the act of implanting a cloned embryo in a uterus. The embryo implantation procedure has been performed routinely for several decades as part of the in vitro fertilization (IVF) process.
Despite all its strong language about banning cloning, by using deceptive definitions S. 1758 prohibits only "implanting or attempting to implant" the cloned human embryo, otherwise allowing human cloning to continue unrestricted.
"Human Cloning Prohibition Act" (S.2076), sponsored by Senator Byron Dorgan (D-ND) similarly bans only the implantation of cloned humans, and even then only if such implantation was done in order to produce a cloned "human being" (by which the sponsors seem to mean a born human being). This bill may open the door to developing cloned embryos even into late pregnancy and then destroying them for their cells and organs. Note that Sens. Mark Dayton (D-MN) and Tim Johnson (D-SD) recently withdrew their name as cosponsors.
"Human Cloning Prohibition Act" (S.704), sponsored by Senator Ben Campbell (R-CO), does not ban human cloning, but forbids one "to initiate or attempt to initiate a pregnancy."
The "Human Cloning Prohibition Act of 2002" (S. 2439) is sponsored by Senators Arlen Specter (R-PA), Dianne Feinstein (D-CA), Orrin Hatch (R-UT), Edward Kennedy (D-MA), Barbara Boxer (D-CA), Richard Durbin (D-IL), Zell Miller (D-GA), Jon Corzine (D-NJ), Barbara Mikulski (D-MD), Hillary Rodham Clinton (D-NY), Strom Thurmond (R-SC) and Daniel K. Inouye (D-HI). Guess what it doesn't do. If you answered "prohibit human cloning," you're right. Like S.1758, it redefines "cloning." In this version, it means "implanting or attempting to implant the product of nuclear transplantation in a uterus," adding "or the functional equivalent of a uterus."
Lastly, the "Human Cloning Ban and Stem Cell Research Protection Act" (S. 1893) is sponsored by Senators Tom Harkin (D-IA ), Arlen Specter (R-PA), Barbara Boxer (D-CA) and Harry Reid (D-NV). The "Harkin/Specter bill" erroneously defines cloning as "asexual human reproduction by implanting or attempting to implant the product of nuclear transplantation into a woman's uterus or a substitute for a woman's uterus" [Sec. 498C (c) (1)].
With Senators home on recess this month and in October, there should be many opportunities to meet your Senators and ask them to support S.1899 to ban human cloning. But even if you cannot personally attend a local event, be sure to contact your Senators' local offices to learn where they stand on human cloning. Get the word out to others through Letters to the Editor, parish bulletins, e-mail lists and phone trees.
A Gallup poll taken May 6-9, 2002 shows 90% of Americans disapprove of cloning humans. It's crucial that Senators who favor "research cloning" and those who are undecided learn how broad and strong is their constituents' opposition.
Evidence Continues to Mount: Cures Far More Likely to Come from Adult Stem Cells and Alternative Therapies
Space doesn't allow even a cursory discussion of all the recent discoveries and advances in adult stem cell research and therapies now being employed to cure debilitating diseases. We recommend that readers regularly check www.stemcellresearch.org for the latest developments. There you can read about the latest discovery to rock the biotechnology field: respected University of Minnesota researcher Catherine Verfaillie demonstrated the extraordinary versatility of certain adult bone marrow stem cells in a paper she published in Nature (June 20, 2002; available on-line at http://www.nature.com/nature/links/020704/020704-2.html, then click on "Pluripotency of mesenchymal stem cells derived from adult marrow").
The cells were extracted from an adult mouse, dyed blue, and injected into mouse embryos. The cells' descendants turned up in almost every tissue including blood, brain, muscle, lung and liver. Some of the animals' bodies are 40% derived from the bone marrow stem cell. Verfaillie calls the cells "multipotent adult progenitor cells" and has found them about 80% of the time she has looked for them in the bone marrow of adult humans aged 2 through 55. Her research should foreclose any further claims that adult stem cells lack the versatility of embryonic stem cells.
And, as we've reported in almost every discussion of embryonic stem cell research/cloning over the past two years, there's more bad news for that avenue of research. Australian Professor Alan Trounson, a "leading scientist on stem cell research," has joined the ranks of experts (such as Drs. John Gearhart and James Thomson) who have publicly stated that cloning human embryos to obtain embryonic stem cells, so-called "therapeutic cloning," is not feasible.
Professor Trounson told The Age that the pace of change is so rapid in stem-cell technology that therapeutic cloning was now unnecessary. "My view is there are at least three or four other alternatives that are more attractive already," he said. ...
Professor Trounson said therapeutic cloning faced logistical problems, including the difficulty of obtaining large numbers of donor eggs and the fact that stem cells would be useful only to the donor, making the process time-consuming and expensive. ...
"I can't see why, then, you would argue for therapeutic cloning in the long term because it is so difficult to get eggs and you've got this issue of (destroying) embryos as well" (Tom Noble, "Stem-cell cloning not needed, says scientist," The Age on-line, July 29, 2002, available at http://www.theage.com.au/text/articles/2002/07/28/1027818485322.htm).
In fact, "Do No Harm" did the math on how many human eggs would be required to cure the total U.S. patient population afflicted with conditions like cardiovascular disease, autoimmune diseases, diabetes, Alzheimer's, Parkinson's, etc. if cures were ever developed through so-called "therapeutic cloning": "In order to provide genetically matched embryonic stem cells derived from cloning to treat the potential patient pool, scientists would have to obtain at least 670 million eggs, donated by at least 67 million women" (www.stemellresearch.org/info/dothemath.shtml). It makes no sense to pursue an avenue of research which, apart from being grossly immoral and unethical, is also utterly impractical.
Coming soon: New and Improved Partial-Birth Abortion Ban Act of 2002, Senate Action Expected on CEDAW and Important RU-486 Update.
is a publication of the NCCB Secretariat for Pro-Life Activities
3211 Fourth Street, N.E.Washington, DC 20017-1194
Phone (202) 541-3070; Facsimile (202) 541-3054
Made possible through the generosity of
the Knights of Columbus
*The materials contained within are intended for use by the Catholic dioceses and organizations, and permission is not required for reproduction or use by them. All other uses must be authorized. For reprints, questions, or comments contact Susan E. Wills, at the above address.