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updated 8:45 AM ET Jul 29
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Sunday July 29 08:45 AM EDT

Surviving fetuses would get rights under pending federal legislation

By Eric Krol Daily Herald Political Writer

It's a rare outcome in one of the rarest and most controversial abortion
procedures.

Detecting midway through a pregnancy that a baby will be born without a
heart, lungs, brain or other organs vital to survival, a doctor induces labor
hoping the fetus is expelled from the mother's womb already dead. In a very
few cases, the baby lives, if only for an hour.

That scenario has abortion rights foes building political momentum for a
federal measure that could open up a new wrinkle in the complex debate: At
which stage is a fetus, by definition, considered an individual?

The Born Alive Infants Protection Act pending in Congress would for the first
time extend federal legal protection to fetuses that survive abortions,
labor-induced or otherwise.

The measure, which is co-sponsored by Republican Sen. Peter Fitzgerald (news
- bio - voting record) of Inverness, effectively would require hospitals to
provide medical care to babies who survive abortion. The care could be as
simple as holding the baby and keeping it warm until it dies, or as complex
as trying to save the premature baby's life if somehow he is born without
life-ending birth defects.

"It is dismaying that, in this country, we need legislation to reaffirm our
cherished and longstanding ideal that all living babies, regardless of
circumstance, are human beings entitled to protection of the law," said
Fitzgerald, an abortion opponent.  "There's a consensus: You draw the line
when the baby is born."

Induced-labor abortions are rare. In the 41 states that break down abortions
by type, 2,614 women had induced-labor abortions in 1997, the last year for
which data is available, according to the federal Centers for Disease Control
and Prevention (news - web sites) in Atlanta. That translates to 0.4 percent
of all abortions.

The Illinois Department of Public Health (news - web sites), citing privacy
laws, reports the two types of existing induced-birth abortions in a range of
zero to 50, meaning that there could have been none of this type of abortion
or as many as 100. If there were 100, that amounts to 0.2 percent of the
45,924 Illinois abortions in 1999.

The proposal sailed through the Senate 98-0 last month - Illinois senators
Fitzgerald and Dick Durbin, a Springfield Democrat, both voted in favor - as
an amendment to the patients' bill of rights, much to the delight of suburban
abortion opponents.

"This is not the ultimate answer, but it's a start," said Jim Finnegan, a
Barrington resident who has been fighting abortion for 28 years. "And here's
why: It calls to the people's attention some of the atrocities and the
extremes involved with abortion.

"Somewhat surprisingly, national abortion rights groups did not pressure
senators to oppose the measure, even though they fought against a similar
House version last year.Leaders at the National Abortion Rights Action League
and the National Abortion Federation (news - web sites) say the measure is
not about abortion and does not mandate a new standard of medical care for
babies born during abortions. They attributed their opposition last year to
not fully understanding the House version of the legislation.

Mary Anne Hackett, president of the Illinois Right to Life Committee, offers
a different view: Abortion rights foes are afraid of the negative publicity
that would have resulted from voting no.

"It's being called infanticide. I think that's why they're embarrassed to
defend it," Hackett said.

The two sides of the abortion issue differ on the long-term philosophical and
practical implications of the Senate measure.

If the measure ends up being signed into law by President Bush (news - web
sites), it could provide abortion foes with another argument to bolster their
legal efforts to make abortion illegal.

Hadley Arkes, a political scientist at Amherst College in Massachusetts who
helped come up with the legislation, argued in the magazine National Review
that the measure is "momentous" because abortion rights supporters in the
Senate will have admitted that Congress has the power, practically speaking,
to bar some abortions.

The Supreme Court may have ruled in 1973's Roe vs. Wade that abortion is
legal, but Congress would be reasserting its right to impose limits on what
types of abortions are available, Arkes asserted. That could boost future
court arguments over partial-birth abortions, which Congress twice tried to
outlaw only to see President Clinton (news - web sites) use his veto
power.Abortion rights supporters are not sounding any alarm bells yet,
however.

"They (abortion foes) probably will (use it), but they do that all the time,"
said Elizabeth Cavendish, NARAL's legal director. "I'm not sure this bill
would add to their efforts to undermine Roe."

Abortion foes such as Hackett acknowledge approval of the measure could
result in hospitals afraid to perform induced-labor abortions. Instead,
doctors could turn to a procedure in which the fetus is killed via a chemical
injection while still inside the womb, eliminating the possibility of a live
birth during abortion.

Cavendish said that's not the intent of the Senate measure."If this bill
doesn't relate to abortion, it shouldn't trim her abortion options,"
Cavendish said.

While the federal effort gathers steam, a similar effort in Illinois failed
in May.

State Sen. Patrick O'Malley, a Palos Park Republican and candidate for
governor, shepherded his version through the Senate, only to see it fail in a
House committee. The American Civil Liberties Union (news - web sites) said
the measure would violate a woman's right to an abortion and the doctors'
lobby said it would interfere with a doctor-patient relationship.

The state version largely was spurred by the testimony of Jill Stanek, a
former nurse at Christ Hospital in South suburban Oak Lawn. Stanek has
testified on numerous occasions that a few live babies born during an
induced-labor abortion were ignored until they died.

A spokesman for Advocate Health Care, which owns both Christ Hospital and
Lutheran General Hospital in Park Ridge, said Stanek's claims are untrue and
that she has not provided documentation to support her claims. Advocate
officials estimate they perform five to 10 induced-labor abortions per year
on mothers whose babies will die after birth from serious defects. All are
done at Christ Hospital.

Meanwhile, supporters of the federal measure wait to see whether it will fall
victim to procedural tussles involving the patients' bill of rights. The
House almost surely will pass a different version than the Senate. If the
born-alive amendment isn't included in the ultimate compromise between the
two chambers, sponsors like Sen. Fitzgerald will have a tough time getting a
separate vote called on the born-alive legislation.