Incidentally, my question to David wasn’t directly about Obama’s dishonesty regarding what he now claims he would have done, but that,too, is worth noting. I suppose, in a sense, Obama is lucky he has his dubious positions on infanticide to deflect from questions about his honesty.

I hope to make a more substantive reply latter, but I do want to say now that in the state of New York, at least, for the purposes of homicide laws, this is the definition of person:

“Person,” when referring to the victim of a homicide, means a human being who has been born and is alive.

It seems to me that covers every situation we have discussed so far, including the types of situations mentioned in Jill Stanek’s testimony. If Illinois did not define person in a similar way, then perhaps they should have worked on the definition rather than BAIPA.

Homicide is defined as follows:

Homicide means conduct which causes the death of a person or an unborn
child with which a female has been pregnant for more than twenty-four
weeks under circumstances constituting murder, manslaughter in the first
degree, manslaughter in the second degree, criminally negligent
homicide, abortion in the first degree or self-abortion in the first
degree.

I don’t see how anyone could argue any additional protection is needed for any human being, except, of course, if you believe abortion in the first trimester should be criminalized. But we have not been talking about the unborn. It looks to me like — in New York, at least — anyone who has been born alive is covered.

And as I have pointed out elsewhere, it is not the pro-choice side that is attempting to change centuries-old definitions of who is a person and who isn’t. A few academics making theoretical arguments about infants being considered non-persons for a certain time after birth does not constitute a movement to legalize infanticide. If it were necessary to pass federal and state laws every time a few professors expressed unconventional ideas, our elected representatives would have to work 24 hours a day, 7 days a week, 365 days a year churning out one new law after another.

As I have indicated repeatedly above, in my quotation of Prof. George, my references to the House Judiciary Committee report, there were many reasons to support legislation clearly establishing that all live-born humans have the same legal status. The testimony of the Illinois nurses was a catalyst and a case study in one context in which such clarity was important, but there are others.

I do not know what SPECIFIC allegations the IDPH spokesman was talking about in that quoe, and I do I know what laws he was talking about (although the Carole Doris letter speaks of the “Hospital Licensing Act” and the “Vital Records Act”). In fact, not much is known about this “investigation,” because, as the Doris letter explains, the IDPH counsel took the position that Illinois law “prohibited release of any investigative files.” I have not alleged that any existing laws were violated. I certainly think that lawmakers had ample justification for legislation to explicitly define every live-born infant as a protected person. Legislation to do so, for federal law purposes, passed the U.S. House 380-15 in 2000 and the U.S. Senate 98-0 in 2001, so not many of the pro-abortion members of Congress shared the concern that such a definition would be a step towards banning abortions.

I would again make the point that the original 2001 Illinois BAIPA (the one Obama was speaking against, in his “previable fetus” speech) contained a single sentence that was NOT part of the original (or final) federal BAIPA. We refer to it as the “immediate protection clause.” It read as follows: “A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.” In a document issued on August 19, 2008, the Obama campaign quoted this specific sentence as a major justification for Obama’s opposition, labeling it, “Language Clearly Threatening Roe.” I still await an explanation of why Obama finds that sentence especially objectionable. I respectfully suggest that under your theory of the case, his objection to that sentence is inexplicable. As we see it, however, it is perfectly consistent with his previously expressed view about the non-personhood of the “previable fetus” (his term), which we set forth in detail here: http://www.nrlc.org/ObamaBAIPA/WhitePaperAugust282008.html

douglasjohnson,

I have seen a number of attempts to use the Illinois Department of Public Health’s findings as evidence that Stanek’s allegations were true, and the laws were just not adequate to do anything about them, because the infants in question were not persons under the law. However, Eric Zorn, columnist for the Chicago Tribune, in an e-mail exchange with Jill Stanek, quotes an IDPH spokesperson as saying that if the alleged incidents happened, they would have been violations of existing law:

ZORN: As you well know, Jill, the Illinois Atty. General’s office, then under abortion foe Jim Ryan, was quite concerned about your allegations and directed the Illinois Dept. of Public Health to conduct a thorough investigation of the claims made by you and Allison Baker.

Why?

“Because what they were alleging were violations of existing law,” IDPH spokesman Tom Shafer told me yesterday. “We took (the allegations) very seriously.”

Shafer told me that the 1999 investigation reviewed logs, personnel files and medical records. It concluded, “The allegation that infants were allowed to expire in a utility room could not be substantiated (and) all staff interviewed denied that any infant was ever left alone.”

Shafer was quick to add that neither he nor the IDPH report concluded that your testimony was untruthful or exaggerated to help advance your anti-abortion views–simply that their investigation did not substantiate the allegations.

http://blogs.chicagotribune.com/news_columnists_ezorn/2008/08/early-warning-h.html

Now, no one would deny that Jill Stanek’s testimony is very disturbing. One would hate to believe that even previable infants, who had no chance of living no matter what, would be treated inhumanely. But we are talking about the legislative process here. Should unsubstantiated allegations be use by legislators as a reason to pass laws? And laws, apparently, that were not needed, since if Christ Hospital had done what Stanek alleges, they would have been breaking existing laws?

In any case, setting all this aside, if infants in Illinois hospitals were being mistreated, and legal actions was necessary, why in the world not pass laws that specified appropriate care for newborns? Why pass a law that changes the definition of what a person is in every Illinois law and regulation? It was called the Born Alive Infant Protection Act, but nobody has yet argued that it actually protected any infants. It just redefined them as persons. It seems to me it was clearly another attempt to make one more step forward in the effort to ban abortions.

Some things clearly don’t change. I went to one NRLC event in the mid-1990s. I got a great meal at the Waldorf Astoria. But when I saw Phyllis Schlafly given pride of place, I almost threw my meal back up. After all, this woman is a public supporter of the use of nuclear weapons, something as intrinsically evil and as opposed to the culture of life as abortion– and yet there she was hanging out with the NRLC. I never went back.

I think you came pretty close earlier to suggesting that I was purposely telling falsehoods because of my “zeal,” when in fact I made a careless but honest error in confusing two different officials, which I regret but which had no bearing on the substantive issues we are discussing. I do not, however, think I have said anything “calling [your] character into question.”

In one of your postings above, you wrote, “I believe the very disturbing allegations you describe in your message are basically from the testimony of Jill Stanek. It is my understanding that Stanek’s accusations were reported to legal authorities in Illinois, investigated, and could not be substantiated.” You repeated the “were not substantiated” again just above. Your choice of words makes it sound like an official investigation concluded that the allegations were not factual. If you personally made allegations about a matter, and someone later said that they “were not substantiated,” I suspect you would believe that your character was being called into question.

But I see in the documents no such conclusion regarding matters of fact. Rather, the officials carefully said that nothing was found “to support any statutory violation” or to justify pursuing as a violation of the applicable laws. However, you now have added the helpful clarification that neither you nor the Iillinois Department of Public Health was accusing the nurses of fabricating their testimony (and, again, Stanek was not the only nurse to testify).

I was present at the 2000 congressional hearing and heard Stanek and Allison Baker. They certainly struck me as credible, and apparently most of the House Judiciary Committee members thought so, too.

If there is general agreement that what the nurses reported cannot simply be dismissed, then it seems that what they reported should be the focal point of the discussion, not official letters that, if anything, add weight to the view that the existing laws were inadequate (which is why the legislators subsequently proposed new laws, which Obama opposed). Both the federal and state BAIPAs were intended to establish the principle that any human enjoys full legal protection from the point of birth, “at any staga of development,” and — as already discussed above — this is a principle that has implications not only with respect to induced-labor abortions, such as those discussed by the Illinois nurses, but in other contexts as well.

douglasjohnson,

Why would you characterize as “slurs” my pointing out that the allegations of Jill Stanek and Allison Baker were investigated by the Illinois Department of Public Health (IDPH) and were not substantiated? It’s just a fact — a matter of public record. I have not accused them of fabricating the incidents in their testimony, nor did the IDPH.
http://judiciary.house.gov/Legacy/73696.pdf#page=46

If I can’t mention relevant facts, supported by actual documents, without having my character called into question, I don’t see any point in continuing this discussion.

But I think you see that Prof. George made the case that the concept of full legal status attaching to all human infants at birth was being (as is being) challenged in some quarters.

The House Judiciary Committee itself cited Singer in its official report accompanying the bill, so I hardly think it can be a “distortion” for me to cite Singer’s position in a paragraph illustrating reasons why such a bill was deemed necessary.

That said, I believe that my characterization of the content of the letter — which is what is relevant and what I should have stuck to — was perfectly accurate. And I think that repeatedly slurs on the credibility of the whistleblower nurses do Mr. Nichol no credit — but again, everyone can read their testimony and draw their own conclusions.

I am frankly baffled by Mr. Nickol’s statement that I engage in “distortion” by “implying Peter Singer’s views about infanticide are somehow relevant to this discussion.” Mr. Nickol himself had taken to
discussing the BAIPA as if it was only a response to the testimony about events at one hospital in Illinois. I pointed out that this was a misconception, and that the House Judiciary Committee report had laid out a number of justifications for the bill, among these, the writings of Prof. Singer.

Indeed, at the very first congressional haring on the federal BAIPA, Prof. Robert P. George, McCormick Professor of Jurisprudence in the Department of Politics at Princeton University, in his testimony in favor of the legislation, testified as follows”

“If my philosophy of civil rights were uncontroversial, there would be no need for me and the other witnesses to be here today or for you to trouble yourselves with this hearing. Infanticide would be unthinkable. Even those who believe in abortion, as I do not, would draw the line at birth, if not before, on the ground that the physical separation of mother and child eliminates any concern that protecting the life of the child would violate the rights of her mother. But today the philosophy of civil rights I hold is far from undisputed. Infanticide is openly defended and even put forward as itself a right. Indeed, in the academy the intellectual groundwork is already in place to extend the right to abortion into the post-natal phase.

“In an article entitled ”Killing Babies Isn’t Always Wrong” (The Spectator, 16 September 1995, pp. 20–22), Professor Peter Singer, who has since become my colleague at Princeton where he is DeCamp Professor of Bioethics in the University Center for Human Values, made the following proposal: ‘Perhaps, like the ancient Greeks, we should have a ceremony a month after birth, at which the infant is admitted to the community. Before that time, infants would not be recognized as having the same right to life as older people.’

Now, I understand that Professor Singer has since backed away from the proposed ceremony, but he has not altered his view that we should do away in law and ethics with the principle at the core of traditional concepts of human rights and equality, namely, that it is always wrong intentionally to kill innocent human beings; nor has he abandoned his claim that newborn human beings are not ”persons” with a right to life that must be respected and protected by law. He continues to insist that human beings only become ”persons,” and acquire a right to life, sometime well after birth. He denies that we are ”created equal” and affirms a concept which, frankly, makes me shudder: that of a class of human beings, including newborn infants, who are, in effect, nonpersons.

Is Professor Singer alone in these beliefs or in their public advocacy? Far from it. In fact, his position isn’t even new. Something very much like it was articulated in a mainstream philosophical journal as early as 1972 by philosopher Michael Tooley. (”Abortion and Infanticide,” Philosophy and Public Affairs, Vol. 2.) Writing even before legal prohibitions of abortion were swept away by the Supreme Court’s decisions in Roe v. Wade and Doe v. Bolton, Professor Tooley bluntly declared that human fetuses and infants ”do not have a right to life.” Only ”persons” have a right to life, and fetuses and infants are not, he insisted, ”persons.” Like Singer, Tooley expressed no doubt that infants (or, for that matter, fetuses) are human beings. He acknowledged, as does Singer, the plain fact that from the beginning of our lives—well before birth—we are distinct, whole, living members of the species Homo sapiens. But, he insisted, we do not become ”persons”—we do not acquire the right to life—until well after we are born. According to Professor Tooley, a human being (or other organism) ”possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity.” Infants do not qualify.

Here in Washington, D.C., American University philosophy professor Jeffrey Reiman, while expressly declining ”to settle the issue about the moral status of infanticide,” also claims that infants are not ”persons” with a right to life. (Critical Moral Liberalism: Theory and Practice (Lanham, Md: Rowman and Littlefield, 1997), ch. 8, ”Abortion and Infanticide.”) While he offers some reasons why people might nevertheless think it generally wrong to kill newborn babies, he promoted the view that infants, unlike more mature human beings, do not ”possess in their own right a property that makes it wrong to kill them.” He denies that infants are members of the community who share equal worth, dignity, and rights, and explicitly holds that ”there will be permissible exceptions to the rule against killing infants that will not apply to the rule against killing adults and children.”

I could go on with examples. For now, though, suffice it to say that people who wish to destroy an ”unwanted” child have today in the academy—here in the United States—influential scholars who are willing to say that the baby they seek to have killed is not, in fact, a ”person” with an equal right to life. Some of these scholars promote the idea that killing an infant at the request of its parent—presumably a father as well as a mother in view of the fact that the physical separation of the child from the mother seems to confer on a father an equal right to command the death of the child—is morally acceptable and ought to be legally permitted.

The legitimization of infanticide constitutes a grave threat to the principle of human equality at the heart of American civil rights ideals. If weak and vulnerable members of the human family—and infants are surely among the weakest and most vulnerable—can be defined out of the community of ”persons” whose fundamental rights must be respected and protected by law, the constitutional principle of equal protection becomes a sham. We must begin now putting into place bulwarks against this threat. I therefore respectfully urge passage of H.R. 4292, the Born Alive Infants Protection Act.

http://commdocs.house.gov/committees/judiciary/hju67226.000/hju67226_0.htm#34