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The Executive Order on Protecting
Vulnerable Newborn and Infant Children:
A Pro-Life Legal Analysis
Jennifer Popik, J.D. | 05 October 2020
On September 25, President Donald Trump issued an Executive Order on Protecting Vulnerable Newborn and Infant Children.[i] This Order is an important and much-needed step in ensuring that both babies born very early, born with disabilities, or born in an attempted abortion get the protection due to them through several already existing laws. While this is a big step forward, the Executive Order (EO) can only reach so far and can only enforce existing law.
President Trump issued the Executive Order in response to the concern that hospitals sometimes refuse to provide medical screening and stabilizing treatment to newborns based on some troubling criteria. When a baby could survive or at least be given a shot to survive with treatment, health care providers often take suspect considerations into account, like the quality of life of having a disability or needing ongoing support measures. Providers are often not screening the baby or they are giving the parents biased information to dissuade treatment.
Specifically, the EO addresses the denial of treatment issues in hospitals with emergency rooms under the Emergency Medical Treatment and Labor Act (EMTALA).[ii] The EO also prevents any recipient of federal funding from discriminating against individuals with disabilities per Section 504 of the Rehabilitation Act (29 U.S.C. 794).
Last year, Virginia Gov. Ralph Northam (D) sparked a firestorm of controversy in a radio interview during the Virginia legislature's debate over removing some scant requirements dealing with babies born alive in an attempted abortion. Northam, speaking broadly, said, "The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”[iii]
Unfortunately, Northam, a pediatric neurologist, is not only misunderstanding the fact that providers cannot discriminate against babies, but in many cases, they are ignoring the law by not providing treatment. Even worse, there is no reason to believe he is an outlier in the medical profession on this point of view.
The EO sends a strong signal to hospitals that they have a legal duty to screen and potentially treat newborns - that the screening, in particular, is not up for debate. Frequently, physicians and hospital staff simply tell the parents there is nothing that can be done. However, the EO emphasizes that denials of treatment cannot be "because they believe these infants may not survive, may have to live with long-term disabilities, or may have a quality-of-life deemed to be inadequate."[iv]
By way of background, this issue first came to a head in the 1980s, where there were several high-profile cases of denial of lifesaving medical treatment to children born with disabilities. The two that garnered the most attention were the Bloomington, Indiana, "Infant Doe" case—an infant with Down syndrome who was denied a basic procedure and as a result starved to death—and the Long Island, New York, "Baby Jane Doe" case—an infant with spina bifida who, despite the initial denial of treatment, survived.
After major efforts by the pro-life and disability rights movements, Congress passed the Child Abuse Amendments of 1984, which created a standard of care for infants born with disabilities. However, there is considerable evidence that today this standard is not enforced and largely ignored in neonatal intensive care units throughout the nation. This EO seeks to enforce those standards again.
In addition to the troubling cases of the denial of treatment to babies born prematurely or born with significant disability, it became increasingly brought to light that babies were being born alive in attempted abortions-- and left to die.
In 2002, Congress enacted the Born-Alive Infants Protection Act.[v] The legislation said that babies born alive, whether before or after "viability," are recognized as full legal persons for all federal law purposes.
The law was enacted in response to troubling indications that some abortion providers and pro-abortion activists did not regard infants born alive during abortion procedures as legal persons – especially if the infants were deemed to be “pre-viable.”
The Born-Alive Infants Protection Act became law without even one single dissenting vote. Unfortunately, in the time between 2002 and 2020, the landscape has entirely changed.
Pieces of evidence have multiplied that some abortion providers, despite the clear language of the statute, do not regard babies born alive during abortions as persons and do not provide them with the types of care provided to premature infants who are born spontaneously.
Even with incomplete information from both the Center for Disease Control and certain state reporting, we know that there are numerous instances of babies born alive during abortions.[vi]
While legislation aimed at laying out specific standards of care languishes in Congress (The Born-Alive Abortion Survivors Protection Act H.R. 962’),[vii] this Executive Order reminds providers that when a baby is born-alive at a hospital with an emergency department, they must receive appropriate medical screening and stabilization, and be transferred to a more equipped hospital, when necessary. Additionally, it would remind recipients of federal funding that denial of treatment of a baby solely due to a disability could put their funding at risk.
The EO requires Health and Human Services (HHS) to ensure that federal funding recipients (which is a wide net) 1. have an "obligation to provide an appropriate medical screening examination and stabilizing treatment or transfer when extremely premature infants are born alive, or infants are born with disabilities,"[viii] 2. may not “unlawfully discourage parents from seeking medical treatment for their infant child solely because of their infant child’s disability,”[ix] and 3. must “allow the infant patients to be transferred to a more suitable facility if appropriate treatment is not possible at the initial location.”[x]
Another key positive point of the order is that it prioritizes grant funding for research and develops treatments to improve survival and ensure medical personnel benefit from this research.
The strongest protection for babies born alive in attempted abortions would come from passage of the Born-Alive Abortion Survivors Act in Congress. It would apply to free-standing clinics that are not in hospitals and might not take federal funding. However, this EO is a strong step in the right direction. The EO acknowledges the right of parents to demand medical care for their vulnerable newborn children.
[i] You may view the executive order here: https://www.whitehouse.gov/presidential-actions/executive-order-protecting-vulnerable-newborn-infant-children/.
[ii] 42 U.S.C. § 1395dd.
[iv] See Section 1 of the Executive Order on Protecting Vulnerable Newborn and Infant Children.
[v] 1 U.S.C. § 8
[vi] The Center for Disease Control (CDC) estimates that between 2003 and 2014, at least 143 babies died after being born alive during abortions. The number is likely far higher due to the fact that the CDC relies on state health departments, which vary in their thoroughness. Additionally, California, the nation's most populous state, along with Maryland and New Hampshire, have not reported any abortion figures to the CDC since 1998. Only five states independently report cases of infants born alive (Arizona, Florida, Michigan, Minnesota, and Oklahoma). Even in that small sample, at least 25 children were born alive during attempted abortions in 2017.
[vii] View the text of the bill here: https://www.congress.gov/bill/116th-congress/house-bill/962/text.
[viii] See Section 3 of Executive Order on Protecting Vulnerable Newborn and Infant Children.
Jennifer Popik, J.D.
Federal Legislative Director, National Right to Life