US Law Already Protects Infants Who Survive Abortion

News: Commentary
by Dr. Alan Keyes  •  •  February 28, 2019   

Why not take care that it be faithfully executed?

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Dr. Alan Keyes

This week, Democrats voted down an effort to make sure that abortionists who murder infants, born alive despite an attempted abortion, are held accountable for their crimes.

Senate Democrats on Monday blocked a Republican bill that would have threatened prison time for doctors who don't try saving the life of infants born alive during failed abortions, leading conservatives to wonder openly whether Democrats were embracing "infanticide" to appeal to left-wing voters. ("Dems block 'born alive' bill to provide medical care to infants who survive failed abortions")

When I first heard about the GOP effort to pass the bill, I immediately wondered why it was necessary. In 2002, large bipartisan majorities in both houses of Congress approved the Born Alive Infant Protection Act (BAIPA) which President George W. Bush then signed into law.

That act directs:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words "person," "human being," "child" and "individual," shall include every infant member of the species homo sapiens who is born alive at any stage of development.

Apparently, because the bill did not explicitly specify penalties for murdering such newborn infants, it has had little or no effect. A Heritage Foundation report explains:

While current law recognizes that all infants born alive are "persons," babies who survive an abortion attempt are left vulnerable because the law provides for no requirements that health care practitioners treat the infant with the same degree of care afforded to any other newborn. The Born-Alive Abortion Survivors Protection Act would remedy this problem by requiring that proper medical care be given to infants who survive an abortion and establishing criminal consequences for practitioners who fail to do so.

Now, the Constitution of the United States provides that no person shall be deprived of life without due process of law. The language of the 14th Amendment (Section 1) clarifies that this prohibition constrains the state governments, each of which is also forbidden to "deny any person within its jurisdiction the equal protection of the laws."

So if an 11-year-old child is murdered in any state, the state's government is required to apprehend and prosecute the perpetrator(s) in the same manner as it would if the victim were 30 years old. No special provision of federal law is required to enforce this requirement. The duty of prosecution is uniform for persons of all ages.


This means that states that have failed to investigate and prosecute the willfully purposeful or negligent homicide of newborn infants who survive an abortion attempt violate the supreme law of the land. In particular, they violate the Civil Rights Act — under which, for example, the federal government prosecuted the murders of civil rights workers Chaney, Schwerner and Goodman in Mississippi in 1967 — when that state's government refused to do so.

Now, GOP leaders and pro-life organizations attuned to their party line are calling the Democrats to account for defeating the Born-Alive Abortion Survivors Protection Act. But have Republican governments been prosecuting the staff and doctors at abortion clinics for their willful, murderous neglect of the children specifically targeted for protection by the law already on the books?

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Why have Republican presidents failed to invoke the civil rights laws to enforce that protection, if and when state chief executives from either party deny such children the equal protection of the laws against homicide? Why have they failed to bring pressure to bear against their dereliction? Why have they failed to see that the supreme law of the land is faithfully executed?

One has to suspect that the GOP's recent show of legislative action was mostly intended to score political points. People who don't pursue actions they are bound by oath to demand or undertake lack credibility when they call others to task for opposing new legislation to thwart crimes effectively permitted by their own dereliction.

What he is doing with the issue of border security, President Trump needs to do to ensure the faithful execution of the law passed to secure the life of infants born alive. The supreme law of the land says they are persons.

States that have failed to investigate and prosecute the willfully purposeful or negligent homicide of newborn infants who survive an abortion attempt violate the supreme law of the land.

The president should immediately assemble a task force at the Justice Department to see to it that the BAIPA is enforced. If state officials do not act, the task force should do so, as authorized by our federal civil rights laws.

The Democrat Party has apparently abandoned the modicum of respect for innocent, helpless, human life that led many Democrats in Congress to support the BAIPA in 2002. Anti-life Democrat ideologues, prevalent among them now, have surrendered that shred of decency. Despite their loud denunciations of that surrender, GOP members of Congress and Trump administration officials will be suspect if they do not ask President Trump to end the long, bipartisan failure to see that the BAIPA is faithfully executed.

If they fail to ask, or fail to back him when on his own he decides to do his duty, we may have to add fake pro-life posturing to the GOP's fake posturing on border security — which will be demonstrated if they do not solidly support his declaration of emergency and pursuant actions he undertakes effectively to assert sovereign control of our nation's now routinely violated territory.

Dr. Alan Keyes served as Assistant Secretary of State for International Organizations under President Ronald Reagan, and ran for president in 1996, 2000 and 2008. He holds a Ph.D. in government from Harvard, and writes at his website Loyal to Liberty.


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