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The Moral Case for the Born Alive Infants Protection Act*
Joe Kral, M.A. 25 April 2019
On April 18, 2019 Governor Roy Cooper of North Carolina vetoed SB 359.[i] This bill sought protections for those children born from either an abortion or an attempted abortion. More states are seeking to push such legislation to ensure that these children do not become victims of a philosophy that deems them as non-persons. Much of this is a proper reaction to the contemporary New York law recently signed that not only allows for abortion up until birth, but allows for limited infanticide in the case where a child was meant to be aborted.[ii] Governor Ralph Northam of Virginia[iii] was most vocal about his support for limited infanticide in these situations and in many ways it reflects the ideology of abortion advocates--the so-called right to a dead child. Abortion, for them, has gone beyond the womb.
But an important question must be asked, why do states need a law that ensures the protection of the newly born child? Are they not already recognized as legal persons since they are born? In fact, many states passed legislation decades ago recognizing that the newly born from an abortion or an attempted abortion child do have rights as guaranteed by those particular states. However, even as these laws stand, there is a deficiency. It has become clear that there is little enforcement provision within the current laws that prevents abortionists from not providing care to a child. In essence, as it stands, an abortionist merely needs to say that the child is not his patient and he need do nothing to help the patient survive the harm caused by him. Basically, the abortionist ignores his moral duty in order to ensure that the child dies from lack of care.
It is clear that the moral principle that one who causes harm to another has a moral duty to help the harmed person needs to be enshrined within the civil law, especially in the cases mentioned above. And the various Born Alive Infant Protection Acts seek to accomplish this goal. Take for example the case of a two car crash where one party is injured because of the wrongful actions of another. Common sense dictates that the wrongful one should help the injured person. In the case where the injured party needs medical attention, that may mean calling 911 to ensure that the harmed person gets the medical attention he needs. Simply put, if the person who caused the accident leaves the scene not only is he acting immorally, but he could be charged with a crime. This same principle needs to be applied in the case of abortion as well. In this case, the abortionist has caused harm to the child and, as a result, has a moral responsibility to care for the injured party (the surviving child). Failure to recognize this duty under the law will only result in more children dying from a lack of care that could have been provided by the perpetrator who is also a physician. One must remember, when Roe v. Wade and Doe v. Bolton were decided, the majority of the United States Supreme Court never said that anyone has a right to a dead baby. That is the fallacy perpetrated by those who are in the business of advocating for or providing abortion. The Court only said that the woman has a right to terminate her pregnancy. So the question becomes what is the moral responsibility when the pregnancy is terminated and a child is born alive having survived an abortion or attempted abortion?
Typically, Born Alive Infant Protection Acts help to answer this question by establishing the aforementioned principle in law by doing three things: 1) that a physician-patient relationship is established between the child who is born alive after an attempted abortion and the abortionist who attempted the abortion, 2) that the abortionist must help preserve the life and health of the child born at that gestational age with the same degree of professional care as someone who is a degreed physician, and 3) take responsibility for failure to act upon, not only his moral, but legal duty. The abortionist has caused a clear harm in harming the child bodily and/or caused harm by having the child born prematurely. Since not only did the abortionist cause the harm, but also since he is a degreed physician he has a responsibility to care for the child. It is not sufficient for an abortionist to merely argue that they have no responsibility since only the mother was the patient. That argument denies the urgent responsibility that the doctor has to the living newborn child that is actually present. One must remember the abortionist has created the harm; as such he has a duty to care for the harmed patient in the most diligent fashion as afforded by his extensive training in medicine. Furthermore, this type of legislation also recognizes the consequence the abortionist must face for failing to act upon his responsibilities of causing harm to another. If a person who merely causes a “fender bender” and leaves the scene can be charged with a crime for not living up to his legal (and moral) duties for causing harm to another person’s property (such as failure to stay and give insurance information), then it is only consistent to ensure that a doctor who causes harm to another give medical assistance to the harmed.
To some extent, society must understand that the ancient practices of abortion and infanticide that were exercised in ancient times are not consistent with a proper understanding of human dignity. This is why the idea of human dignity progressed with the Judeo-Christian rejection of those barbaric practices. Unfortunately, it would seem that many have rejected this truth and have reverted to ancient beliefs regarding human dignity. It has become apparent to many that when abortion was legalized it was only going to be a matter of time before infanticide was going to be acceptable to those who advocate for abortion. And so it would appear that common sense has taken a back seat of sorts and, as a result, this has allowed for the hideous notion of a so-called right to a dead child to arise.
Sadly, today some politicians are advocating for the aforementioned doctrine. They insist that there is a so-called right to a dead child. This, of course, is due to the desensitization of human life in general through the practice of abortion. Born Alive Infant Protection Acts help stop that desensitization. This kind legislation is, indeed, a very necessary step to help establish a very clear line that infanticide will not be tolerated. Furthermore, it also helps establish another clear line that abortionists must live up to their responsibilities when it comes to a child that is born alive in their care; that their duty does not merely stop with the mother, it must extend to that born child. But finally these types of bills recognize the reality that there is no right to a dead child and that physical harm done to another must be properly addressed, especially when it is done by someone who has an advanced medical education.
*This article was modified from written testimony provided to Texas Senate Committee members by the author on SB 23.
[ii] Particularly where the Reproductive Health Act states that a licensed healthcare practitioner determines what that viability is and that no extraordinary treatment is required. The law does not define what is meant by extraordinary treatment. So, in theory, a 28 week old baby could be born from an abortion or abortion attempt and be considered not viable. As a result, no treatment would be given if it is considered legally (not morally) “extraordinary”. The term extraordinary is so vague within the law, it simply means whatever the practitioner wants it to mean.
Joe Kral, M.A., is the President of the Society of St. Sebastian and the Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.