Today in 2002: The Born-Alive Infants Protection Act is signed into law

August 5, 2011

Today in Legal HistoryNine years ago today, the Born-Alive Infants Protection Act (BAIPA) was signed into law by President George W. Bush.

The Act is very short, but its implications are far-reaching: it expands the legal definitions of “person,” “human being,” “child,” and “individual” in United States Code to include “born-alive” infants.

A “born-alive” infant is, as defined by the Act, a human that has been completely expelled or extracted “from his or her mother…at any stage of development… regardless of whether the umbilical cord has been cut, and regardless of” how the infant was expelled or extracted.

The infant must also exhibit at least one of these characteristics: “breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.”

BAIPA was passed in response to the 2000 Supreme Court ruling Stenberg v. Carhart, which voided a Kansas law that banned a controversial and relatively rare abortion procedure called “dilation and extraction” – more commonly referred to as a “partial-birth abortion.”

The ruling upset many members of Congress, who then developed BAIPA.

While the Act itself doesn’t ban the procedure, it may have been an attempt to erode the distinction between a later-term fetus that may be legally aborted and the same fetus that emerges alive from the womb and must then be protected under federal law.

To this end, Congress held hearings on the issue.

Jill Stanek, nurse and noted pro-life activist, testified at one such hearing about the differences in care given to infants that survived abortion and “wanted” infants with medical complications.

Specifically, Stanek stated that “wanted” babies were given intensive medical treatment to preserve their lives, while abortion survivors were only given “comfort care” – that is, kept warm and well-fed until they died naturally.

Bush signing BAIPAUnder BAIPA, hospitals and physicians now have a legal duty to do everything medically possible to try to save an infant’s life, no matter how low the chances of survival, and against any objections of the parents and even the medical providers’ best medical and ethical judgments.

Any failure to do so may result in civil and criminal sanctions.

However, the effects of the Act aren’t limited only to medical situations.

Actually, the impact of BAIPA hasn’t been fully ascertained.

It amended tens of thousands of federal provisions without regard to the consequences, and probably affects unintended areas of law (for example, a case about a life insurance policy analyzes the effects of the Act).

Ultimately, though, a partial-birth abortion ban was still passed by Congress in 2003, and upheld by the Supreme Court in 2007’s Gonzales v. Carhart.

The shift in the Supreme Court’s opinion is probably due in large part to the ideological replacement of Sandra Day O’Connor (who was in Stenberg’s majority) with Samuel Alito.

The ban doesn’t limit BAIPA in any way, though.

So while the Act’s impact in medical situations is mostly understood, we’ll probably see the Act appear in a wide variety of legal scenarios well into the future.

Interested in President Bush’s remarks at the signing ceremony?  Click here.