Primer on Legal Personhood Legal Recognition of Unborn Newly

Document Sample
Primer on Legal Personhood Legal Recognition of Unborn Newly Powered By Docstoc

Primer on Legal Personhood:
Legal Recognition of Unborn & Newly Born
By Denise M. Burke, Vice President of Legal Affairs, Americans United for Life
and Mary Novick, Paralegal, Americans United for Life

T       he unimaginable grief and suffering en- For example, in recent years, families of several
        dured by Laci and Conner Peterson’s victims in North Carolina became disheartened
family was, largely due to their own coura- when they discovered that there was no legal
geous advocacy, transformed into a blow for recourse for the deaths of unborn children pro-
justice on behalf of unborn victims of criminal vided by North Carolina law. Thankfully, in
violence. In April 2004, President Bush signed 2011, these families courageously offered their
the “Unborn Victims of Violence Act”, more tragic stories as justification for the passage of
commonly known as “Laci and Conner’s Law,” “Ethan’s Law”—North Carolina’s new “Unborn
and filled an impor-                                                           Victims of Violence
tant gap in federal         As for the remaining 13 states, Act.”
law. Federal pros-
ecutors may now             Laci Peterson’s mother, Sharon These victims in-
charge an assailant         Rocha, has said it best, they are in clude                        Jennifer
in the death of an                                                             Nielsen who was
unborn child when           effect telling grieving families that eight and a half
the death occurs on         “innocent victims [like Conner, months pregnant
federal      property,                                                         with baby Ethan
such as military in-        Ethan, Elijah, and others] are not when she was
stallations, or when        really victims - indeed that they stabbed to death
the death stems
from the commis-
                            never existed at all.”                             while        delivering
                                                                               newspapers in 2007.
sion of another fed-                                                           That same year, Ebo-
eral crime.                                         ny Robinson was two weeks away from her due
                                                    date to deliver baby Elijah when she was shot
However, given that homicide is most often to death and Leanna Newman was eight months
prosecuted as a state crime, unless each of the pregnant with her unborn child when she was
50 states enacts similar laws, many prosecu- killed by a drunk driver. In 2007, the families of
tors will be unable to pursue homicide charges these and other victims had no legal remedy for
in the deaths of the unborn victims of criminal the deaths of their unborn family members under
violence. The inability of prosecutors in some then-existing North Carolina law and their tragic
states to seek justice for unborn victims and their stories underscore the need for states to pass un-
families is a national tragedy – a tragedy that born victims of violence laws.
many of these families are actively confronting.

                                                                                     Defending Life 2012

Two-thirds of American states carry such provi-
sions in their criminal law, often referred to as     Under common law,1 the killing of an unborn
“fetal homicide” laws. As for the remaining 13        child was not considered a homicide unless
states, Laci Peterson’s mother, Sharon Rocha,         the child was first born alive and then died as
has said it best, they are in effect telling griev-   a result of a criminal prenatal act. This rule,
ing families that “innocent victims [like Conner,     called “the born-alive rule,” is still followed in
Ethan, Elijah, and others] are not really vic-        a majority of states that have not enacted legis-
tims—indeed that they never existed at all.”          lation to protect unborn children from criminal
                                                      violence. Thus, if someone shoots a pregnant
Unborn victims of violence laws are just one ex-      woman, killing her child, he or she is not sub-
ample of how states may establish the legal “per-     ject to criminal prosecution for the murder of
sonhood” of an unborn child, providing them           the child unless the child is first born alive and
with legal recognition and protection outside the     then dies as a result of the injuries which the
context of abortion. There are several more op-       child sustained before birth. The purpose of the
tions available under both criminal and civil law.    laws protecting unborn victims of homicide is
                                                      to overturn the common law born-alive rule
                                                      and criminalize conduct causing the death of
                                                      an unborn child. These laws are not directed
                                                      at abortion which, under current constitutional
                                                      doctrine, is protected.

                                                      Nonfatal Assaults on the Unborn

                                                      On occasion, the assailant’s attack does not
                                                      result in the death of the unborn child, but in-
                                                      stead injures the child in utero (perhaps also
                                                      resulting in a premature delivery). In such in-
                                                      stances, 21 states permit the prosecution of the
Issues                                                assailant for assault.

Fetal Homicide                                        One-Victim Laws

In recent years, several high-profile cases from      A minority of jurisdictions—13 states—have
across the nation have highlighted the need for       enacted one-victim laws that permit prosecu-
laws protecting unborn victims from criminal          tions and enhanced penalties in cases where a
violence. Currently, 37 states provide some           woman is assaulted and suffers a miscarriage,
degree of protection for unborn victims of ho-        stillbirth, or “damage to [her] pregnancy.”2
micide. Twenty-eight of these states protect          Notably, of these states, seven do not have an-
an unborn child from conception to birth, as          other law (such as a fetal homicide law) that
does AUL’s “Crimes Against the Unborn Child           recognizes the unborn child as a second victim
Act.”                                                 of the attack.

Americans United for Life

Use of Force to Protect the Unborn                  AUL’s “Pregnant Woman’s Protection Act” or
                                                    similar language. Unfortunately, some of the
All 50 states permit the use of force (including,   proposed language strayed from AUL’s model
when appropriate, deadly force) in specified        and thereby generated significant and unnec-
circumstances: for self defense, in the defense     essary controversy. Specifically, allegations
of others, or when a person reasonably believes     were made that some of the language would
force is being used or imminently will be used      sanction the use of force or violence against
against him/her or someone else. In 2002, a         abortion providers. These claims were largely
Michigan court examined the applicability of        specious and obviously politically-motivated.
these affirmative defenses (to criminal liabil-     AUL’s model affirmatively confines the use of
ity) to the use of force to protect the unborn.     this affirmative defense to a pregnant woman
                                                    and requires that the woman reasonably be-
In 1999, Jaclyn Kurr suffered a miscarriage af-     lieve that her use of force is immediately nec-
ter being physically attacked by her boyfriend,     essary to protect her child from unlawful force
Antonio Pena. Jaclyn was more than 16 weeks         or criminal violence. Clearly, the provision
pregnant with quadruplets when Pena punched         of abortion is not, under current law, unlawful
her stomach multiple times during an argu-          and does not qualify as a criminal act.
ment. Jaclyn stabbed Pena in defense of her
unborn children. Pena subsequently died, and        Born-Alive Infant Protection
Jaclyn was charged with and found guilty of
manslaughter. On appeal, the Michigan Court         Jill Stanek, a nurse at Christ Hospital in Oak
of Appeals held that Jaclyn, as a pregnant          Lawn, Illinois, held a tiny, 21-week-old baby
woman, was justified in using force—in this         boy in her hands. He weighed about half a
case, deadly force—to protect the lives of her      pound and was around ten inches long. “He
unborn children.3                                   was too weak to move very much, expend-
                                                    ing any energy he had trying to breathe,” Jill
This ruling brought attention to an area of law     recalled. The baby had survived an abortion
that had long been neglected. Applying the          and was going to be left alone in a filthy utility
affirmative defense of “defense of others” to       room because his parents did not want to hold
protect the unborn is a victory for women and       him as he died, and the attending nurse was
children, and opens a new chapter in the fight      too busy to bother with him. Jill intervened.
to protect the lives of the unborn.                 “I could not stand the thought of this suffering
                                                    child dying alone in the soiled utility room, so I
In April 2009, Oklahoma became the first state      cradled and rocked him for the 45 minutes that
to enact AUL’s “Pregnant Woman’s Protection         he lived,” she testified before the U.S. House
Act,” specifically providing that women may         of Representatives. “Toward the end, he was
use force to protect their unborn children from     so quiet, I couldn’t tell if he was alive unless I
criminal assaults. In 2010, Missouri also en-       held him up to the light to see if I could see his
acted this innovative law.                          heart beating through his chest wall.”4

In 2011, a number of states also considered         To her horror, Jill discovered that babies who

                                                                                    Defending Life 2012

were born alive as a result of failed abortions     requires that infants who are born alive as a re-
were routinely left alone to die on the cold        sult of a failed abortion must be given immedi-
metal countertop in the hospital’s utility room.5   ate and complete medical care and attention.
Distraught and filled with disbelief, Jill spoke
out against the practice and was subsequently       On March 12, 2002, the federal BAIPA passed
fired.                                              the House of Representatives by a resounding
                                                    voice vote. Later, on June 19, 2002, it was ap-
Jill sought to have the hospital prosecuted for     proved by a 98-0 vote in the U.S. Senate. All
violating “Illinois Abortion Law of 1975,”          Democrats were present for that vote, and all of
which required physicians to provide medical        them—including abortion supporters, Senators
care for born-alive infants. However, then-         Hillary Clinton, Ted Kennedy, Barbara Boxer,
Illinois Attorney General Jim Ryan found that       and John Kerry—voted in favor of the bill. On
there was “no basis for                                                    the Senate floor, Sen.
legal action.”6 Similar-                                                   Boxer voiced her strong
ly, the Office for Civil                                                   support for the bill, ex-
Rights at the U.S. De-                                                     claiming, “Who would
partment of Health and                                                     be more vulnerable than
Human Services wrote                                                       a newborn baby?” She
a letter to Jill stating                                                   continued, stating that
that federal “civil rights                                                 “all of our people de-
laws do not cover abor-                                                    serve protection, from
tions or the rights of                                                     the very tiniest infant to
newborns.”7                                                                the most elderly among
Undeterred, Jill took
her story all the way to the U.S. House of Rep-     State Born-Alive Infant Protection Acts
resentatives in 2001, where she testified in sup-   Since its enactment, the federal BAIPA has
port of the “Federal Born-Alive Infants Protec-     been used as a model for similar state legisla-
tion Act” (BAIPA).                                  tion. Currently, the majority of the states have
                                                    some form of a BAIPA. At least twenty-four
The Federal Born-Alive Infants Protection Act       states have laws creating a specific affirma-
(BAIPA) of 2002                                     tive duty of physicians to provide medical
The federal BAIPA clarifies that, for the pur-      care and treatment to born-alive infants at any
poses of “any Act of Congress, or any ruling,       stage of development, and at least three states
regulation, or interpretation of the various        require such care and treatment only after vi-
administrative bureaus and agencies of the          ability. One state protects born-alive infants
United States,” the legal terms “person,” “hu-      at any stage of development from “deliberate
man being,” “child” and “individual” include        acts” undertaken by a physician that result in
infants who are born alive at any stage of de-      the death of the infant, but does not create a
velopment, including those born as a result of a    specific affirmative duty to provide care and
failed abortion. Through this definition, the Act   treatment.

Americans United for Life

Like their federal counterpart, state BAIPAs       Prevention and Treatment of Maternal Drug
specifically declare they do not implicate or      and Alcohol Abuse
infringe on the right to abortion. For example,
the Illinois BAIPA contains two “neutrality        In recent years, a number of states have passed
clauses”—one of which is identical to that in      laws providing protection for women and their
the federal BAIPA, and a second one which          children from the ravages of drug and alcohol
reinforces the point that Roe v. Wade and the      abuse. The intent of these laws is not to crimi-
right to abortion are not implicated or altered    nalize the mother’s use of drugs and/or alcohol,
by the BAIPA. This second clause specifically      but to provide, encourage, and, in some cases,
states: “Nothing in this Section shall be con-     mandate reporting and treatment. Similarly, 20
strued to affect existing federal or State law     states fund special drug and alcohol treatment
regarding abortions.”9                             programs for pregnant women and newborns.

State BAIPAs are necessary for a several rea-      Treatment programs specifically designed to
sons. First, as a federal law, the federal BAIPA   treat prenatal substance abuse can have a signif-
only applies in limited circumstances. For ex-     icant impact in reducing instances of stillbirth,
ample, the federal BAIPA would only extend         placental abruption, preterm labor, preterm
to those hospitals and employees operated by       delivery, low birth weight, neonatal-assisted
the federal government or which receive fed-       ventilation, neonatal intensive care unit admis-
eral funding. It would not prohibit private or     sion, and other negative pregnancy outcomes
state-operated clinics and hospitals from de-      associated with prenatal substance abuse. A
nying care or medical attention to born-alive      study10 conducted in California and including
infants. Second, states can enact versions of      almost 50,000 women over the course of 4.5
BAIPA that are more comprehensive and pro-         years found that a prenatal substance abuse
tective than the federal version. Lastly, state    program that integrates drug treatment with
versions of federal laws function as reinforce-    prenatal care had positive outcomes for both
ment mechanisms for their federal counterpart.     the mothers and the unborn children.
The federal government has limited resources
for law enforcement and prosecution, so state      For example, this study found that a group of
BAIPAs help ensure the intent and require-         pregnant women who screened positive for drug
ments of BAIPAs are enforced and violators         use and who were subsequently treated had the
are prosecuted.                                    same .9 percent rate for placental abruption as
                                                   the control group (originally screened negative
AUL has developed the “Born-Alive Infant           for drug use), while 6.5 percent of women who
Protection Act,” providing states with model       tested positive for drug use but never received
legislation protecting an unborn child from        drug treatment had a placental abruption. 11 A
conception.                                        similar dichotomy between those that received
                                                   treatment and those that did not can be seen
                                                   in the rates for stillbirths. Women who went
                                                   through the treatment program had stillbirths
                                                   at a rate very similar to the control group, at

                                                                                   Defending Life 2012

Americans United for Life

.5 percent and .6 percent respectively. While       sonhood of the unborn child under civil law.
7.1 percent of women who screened positive
for drug use but never received treatment had       Similarly, 39 states allow a wrongful death
stillbirths. 12                                     (civil) cause of action for the death of an un-
                                                    born child, either through court decision or by
The stark contrast between the health outcomes      statute.14 Of these, 27 states allow a wrongful
for pregnant woman who receive treatment and        death suit if the child is viable; 12 states al-
those that do not points to the positive impact     low suits for a pre-viable unborn child; and 11
of prenatal substance abuse treatment pro-          states still require a live birth, barring a cause
grams on the health of mothers and their un-        of action for the death of the unborn child un-
born children.                                      less the child is born alive and dies thereafter.

Civil Causes of Action for the Wrongful Death       AUL’s model, the “Unborn Wrongful Death
of an Unborn Child                                  Act,” permits a cause of action for the wrong-
                                                    ful death of an unborn child at any stage of de-
April Mack was 12 weeks pregnant with Baby          velopment or gestation.
Mack, when she and her fiancé were in a car
accident that later resulted in a miscarriage.      Refusal to Recognize Wrongful Life or
April Mack sued the negligent driver for the        Wrongful Birth Lawsuits
injuries she incurred and also for the wrongful
death of her unborn child. A Jefferson County       A number of states also refuse to recognize
judge dismissed Mack’s case, finding that the       wrongful life or wrongful birth causes of ac-
unborn child did not enjoy the legal protection     tion. Wrongful life is an “action…brought by
of the Alabama wrongful death statute because       or on behalf of the child…[who] alleges, be-
he or she could not survive independently out-      cause of the defendant’s negligence, his parents
side of the womb.                                   either decided to conceive him ignorant of the
                                                    risk of an impairment or birth defect, or were
The case made its way to the Alabama Su-            deprived of information during gestation that
preme Court where, in September 2011, the           would have prompted them to terminate the
justices unanimously overturned the lower           pregnancy.”15 Simply put, in a wrongful life
court decision, 13 finding that the Alabama         action, a child is arguing that (1) the pregnancy
wrongful death law applies to the unborn child      should have been terminated; (2) that “but for
at any stage of development. Notably, the rul-      the defendant’s negligence” the plaintiff would
ing makes Alabama civil law consistent with         not have been born; and (3) the plaintiff’s life
its criminal law which permits criminal pros-       would have been better not lived.
ecutions in the death of an unborn child from
the moment of conception.                           Meanwhile, wrongful birth is an “action
                                                    brought by the parent of a child born with an
This decision is a great victory for April Mack     impairment or birth defect.” The basic argu-
and for the legal recognition of the unborn         ment made by the parent is that he/she would
child, because it effectively recognizes the per-   have aborted the child if he/she had known that

                                                                                    Defending Life 2012

the child would be disabled.16 Since the birth       Myths & Facts
defect is naturally occurring, “[t]he parent al-
leges that the negligence of those charged with      Fetal Homicide and Wrongful Death
prenatal testing or genetic counseling deprived      Myth: Laws extending legal recognition and
them of the right to make a timely decision          protection to unborn children are unconstitu-
regarding whether to terminate a pregnancy           tional because they give legal status to an un-
because of the likelihood their child would be       born child and/or contradict the established te-
born physically or                                                              nets of Roe v. Wade.
mentally impaired.”17                                                           Fact: Despite nu-
                                                                                merous challenges,
Wrongful life and                                                               no law protecting un-
wrongful birth claims                                                           born children outside
raise significant is-                                                           the context of abor-
sues because the core                                                           tion has been struck
argument attacks the                                                            down as unconsti-
sanctity of life of ev-                                                         tutional. Moreover,
ery human person—                                                               these laws do not
these claims assert                                                             directly     implicate
that some lives are                                                             the “right to choose”
better off not lived                                                            an abortion. For ex-
and that the disabled are better off dead.18 To      ample, unborn victims of violence laws, also
term children with disabilities “defective” and      known as fetal homicide laws, specifically ex-
advocate for their elimination prior to birth is     clude the performance of a legal abortion from
to dangerously re-classify the disabled as less      potential criminal liability. They also do not
human, to grant these citizens fewer rights, and     apply to conduct to which the mother of the
to attribute a lower value to their lives and con-   unborn child (or her legal guardian) consents,
tributions to humanity. ”19                          such as medical treatment (including an abor-
Currently, 31 states have either refused to rec-
ognize or limited a wrongful life action, while      Myth: Crimes that result in the death of or
3 states expressly permit this controversial         injury to an unborn child are merely offenses
cause of action.                                     against the pregnant woman, with death or
                                                     harm to the unborn child being an incidental or
Unfortunately, wrongful birth causes of action       accidental consequence.
have found significantly greater acceptance by       Fact: The failed effort by Senator Dianne
state courts, legislatures, and the public. Thir-    Feinstein (D-CA) to gut “Laci and Conner’s
ty-two states permit wrongful birth causes of        Law” (by making assault on a pregnant woman
action, while only eleven states expressly pro-      an “enhanced offense” if her unborn child also
hibit such causes of action.                         dies) sought to perpetuate this view. Noth-
                                                     ing, in fact, could be further from the truth. In
                                                     many cases involving violence against preg-

Americans United for Life

nant women, the assailant attacks a pregnant         daughter, resulted in manslaughter charges
woman with the intent of killing the unborn          only because Ohio, where he was stationed,
child by causing a miscarriage or stillbirth. In     had a fetal homicide law on its books. Had
some, the woman refused to have an abortion          Roberts been stationed in Colorado —another
and the child’s father, rather than respecting       state with a significant military presence, but
her choice, reacts violently to end the preg-        no fetal homicide law—he could not have been
nancy. In these situations, women have been          charged with his daughter’s death and would
savagely beaten, pushed down flights of stairs,      have faced prosecution only for the assault on
and suffered blows, stab wounds, and gunshots        his wife.
targeted to the abdomen. Sometimes, this vio-
lence takes a less savage, but no less deadly        Born Alive Infant Protection Act
turn. For example, in 2002, an Ohio physician        Myth: There are no adult abortion survivors.
whose pregnant girlfriend had refused to have        Fact: There are many adult abortion survivors.
an abortion spiked her drink with a prescrip-        For example, Gianna Jessen of California, born
tion drug known to cause miscarriage.                April 6, 1977, is a saline abortion survivor. Gi-
                                                     anna’s biological mother had a third-trimester
Myth: Now that we have the federal “Unborn           saline abortion at the age of 17. After being
Victims of Violence Act,” there is no need to        burned alive for 18 hours in the womb from
pass similar state protections.                      the saline solution, Gianna was born alive in
Fact: Murder and assaults, except in limited         a Los Angeles County abortion clinic. The
circumstances, are typically state crimes. The       procedure left her with cerebral palsy, which
vast majority of the criminal prosecutions for       led doctors to assert that she would never be
homicide and assault take place in state courts,     able to hold up her head, sit up, crawl, or walk.
not in federal courts, so it is critical that each   However, Gianna began to walk with the assis-
state protect the unborn from criminal vio-          tance of braces and a walker by the age of three
lence. Conversely, “Laci and Conner’s law”           and now runs marathons across the world. 20
only applies to federal crimes and federal juris-
dictions, such as military installations.            Myth: Abortion advocates strongly oppose
Thus, the biggest impact of Laci and Conner’s        Fact: Not all pro-abortion advocates oppose
law may be in its revisions to the Uniform           BAIPAs. For example, the National Abortion
Code of Military Justice (UCMJ). Military            Rights Action League (NARAL) publicly sup-
prosecutors can now pursue charges against           ported the federal BAIPA, stating in a July 20,
military personnel stationed anywhere in the         2000 press release that “NARAL does not op-
world if their actions cause the death of an un-     pose passage of the Born Alive Infants Protec-
born child; previously, they were limited to fil-    tion Act” because the Act “is not targeted at
ing such charges only in those states with laws      Roe v. Wade or a woman’s right to choose.” 21
protecting unborn victims of violence. A case
such as that of Airman Gregory L. Roberts,           Myth: The requirements of BAIPAs may put
who in 1996 savagely beat his pregnant wife,         the mother’s life at risk in some circumstanc-
rupturing her uterus and killing their unborn        es.

                                                                                     Defending Life 2012

Fact: Physicians are not liable for denying a        Myth: Drug treatment programs stigmatize the
born-alive infant medical care and treatment if,     women who participate.
in the physician’s reasonable judgment, such         Fact: Prenatal substance abuse programs em-
denial was necessary to protect the life of the      power women to have a healthy pregnancy,
mother.                                              they don’t shame them. When these programs
                                                     incorporate drug treatment with prenatal care,
Prenatal Substance Abuse                             they are especially effective because women
Myth: Laws targeting prenatal substance abuse        will have access to the support that they need
are intended to criminalize their behavior and       in order to address the substance abuse, while
incarcerate them until they deliver.                 at the same time getting the tools and support
Fact: The purpose of prenatal substance abuse        needed to improve the health of both the moth-
treatment programs (and laws mandating pre-          er and the unborn child.
natal drug screening and encouraging partici-
pation in treatment programs) is to give women       Myth: Prenatal substance abuse treatment is
access to the tools they need to have a healthy      ineffective.
pregnancy, not only for the sake of their un-        Fact: Prenatal substance abuse treatment pro-
born children but also for the women’s health        grams are extremely effective in reducing the
and wellbeing. Moreover, the vast majority           instances of negative pregnancy outcomes
of state laws dealing with prenatal substance        including low birth weight, neonatal-assisted
abuse are not criminal in nature and do not per-     ventilation, preterm delivery, preterm labor,
mit incarceration of pregnant women.                 placental abruption, and stillbirth. In fact,
                                                     women who test positive for prenatal sub-
Myth: Substance abuse does not affect mater-         stance abuse and who subsequently go through
nal outcomes, only those of the baby.                treatment, have outcomes that are similar or
Fact: Substance abuse during pregnancy can           slightly worse than women who tested nega-
result in negative outcomes for both the mother      tive for substance abuse. These women also
and the unborn child. For example, pregnant          have significantly lower instances of negative
women that use controlled and other danger-          outcomes than substance abusing women that
ous substances—specifically cocaine, meth-           received no treatment. 23
amphetamine, and cigarettes—have signifi-
cantly higher rates of placental abruption and
stillbirth than women who went through pre-          1
                                                       As distinguished from laws created by the enactments of legis-
natal substance abuse treatment and women            latures, the common law comprises the body of those principles
                                                     and rules of action, relating the government and security of per-
who tested negative for substance abuse during       sons and property, that derive their authority solely from usages
pregnancy. 22                                        and customs of immemorial antiquity, or from the judgments and
                                                     decrees of courts recognizing, affirming, and enforcing such us-
                                                     ages and customs. The most common source of American com-
Placental abruption has a serious impact on          mon law is English common law.
maternal health, potentially causing significant     2
                                                       These states are Colorado, Indiana, Iowa, Kansas, Maine,
blood loss, hemorrhage, and maternal morbid-         Michigan, Mississippi, Nebraska, New Hampshire, New Mex-
                                                     ico, North Carolina, Tennessee, and Wyoming. Of these states,
ity. Further, the emotional impact of a stillbirth   Colorado, Iowa, Maine, New Hampshire, New Mexico, North
on a mother is often substantial.                    Carolina, and Wyoming do not have a fetal homicide law.

Americans United for Life

   See State v. Kurr, 654 N.W.2d 651, 657 (Mich. Ct. App.
  Testimony of Jill Stanek during the hearing before the Subcom-
mittee on the Constitution on the Committee on the Judiciary,
U.S. House of Representatives, 107th Congress, on H.R. 2175
(Born Alive Infant Protection Act), July 12, 2001, Serial No. 32,
at 19.
   Id. One instance involved the failed abortion of a baby boy
who was supposed to have spina bifida. What appeared on the
ultrasound to be a mass on the baby’s back was actually an in-
completely formed twin. The healthy baby was born alive with
an intact spine after the failed abortion procedure, and was left to
die on the cold countertop of the utility room.
  Id. at 25, 42
  Id. at 25, 41.
   Congressional Record, S7062-S7064, June 28, 2001. In addi-
tion, Sen. Kennedy stated, “Madam President, I am going to urge
the Senate to accept the amendment tomorrow. I think we had a
good discussion about it. I hope that we will move ahead and
accept it.”
  5 ILCS 70 § 1.36 (d).
    10 N.C. Goler et al., Substance abuse treatment linked with
prenatal visits improves perinatal outcomes: a new standard, 28
J. PerinaTology, 597-603 (2008).
    Id. at 601.
    Mack v. Carmack, 2011 Ala. LEXIS 141 (Ala. Sept. 9, 2011).
    See D.M. Marks, Person v. Potential: Judicial Struggles to
Decide Claims Arising from the Death of an Embryo or Fetus
and Michigan’s Struggle to Settle the Question, 37 Akron L. Rev.
41 (2004). See also Amber Dina, Wrongful Death and the Le-
gal Status of the Previable Embryo, 19 Regent U. L. Rev. 251
(2006/2007). (Nebraska and Texas have changed their law by
statute since 2004).
   See, e.g., Willis v. Wu, 607 S.E.2d 63, 66 (S.C. Dist. Ct. 1980).
   D.M. Sheth, Better Off Unborn? An Analysis of Wrongful Birth
and Wrongful Life Claims Under the Americans with Disabilities
Act, 73 Tenn. L. Rev. 641, n.23 (2006) (arguing that wrongful
birth and wrongful life claims violate the Americans with Dis-
abilities Act).
   Gianna Jessen’s Biography, available at http://www.giannajes- (last visited Oct. 5, 2011), and Gianna
Jessen’s Story, available at
aspx (last visited Oct. 5, 2011).
   Timeline on the Federal Born-Alive Infants Protection Act, Na-
tional Right to Life Committee, available at
ObamaBAIPA/TimelineFederalBAIPA.html (last visited Oct. 5,
    N.C. Goler et al., supra, at 600-602.
   Id. at 599-601.

                                                                       Defending Life 2012

Shared By: