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Communique – May. 14, 2001

special issue

ACTION ALERT: Immediate response requested. A very dangerous federal regulation is scheduled to take effect within days. With that in mind, we pass along information provided by the Republican National Coalition for Life. This material appears in the coalition’s “FaxNotes.”

When does a fetus become a newborn baby?
HHS regulation says not until he is viable

Every now and then over the past 28 years since Roe v. Wade, a story emerges about tiny newborn babies being left to die in hospitals, abandoned by parents unwilling to deal with their physical problems, and uncared for by medical personnel caught between their own consciences and hospital rules.

The famous Baby Doe case comes to mind. In that case, which took place in Bloomington, Indiana, a baby was born on April 9, 1982 with Down syndrome and his parents refused to allow a doctor to correct a defect in the esophagus that prevented eating. He died of starvation on April 15, 1982. Baby Doe was left to die, unattended and deprived of even water to moisten his little eyes.

Protests from pro-life groups, Congressman Henry Hyde and others led to an executive order, issued by President Reagan, notifying hospitals receiving federal aid that they may lose their funding if they withheld food and medical treatment from handicapped babies. Despite efforts by the Reagan Administration to prevent more abuses of this type, the U.S. Supreme Court, in a 5-3 decision, struck down a protective regulation that had been issued by HHS.

The extent of protection for the children was left undefined.

Jill Stanek, a labor and delivery nurse at Christ Hospital in Oak Lawn, Illinois, briefed Capitol Hill staffers and others on her experience with her hospital’s policy of performing live birth abortions in which labor is induced, the baby is delivered prematurely, sometimes alive, and then left to die.

The reaction of most people when they hear stories like these is to say, “Wait a minute! Once a baby is born, he’s a citizen of the United States, right? He’s protected under the Constitution, right?” Wrong.

How are we wrong? Why is the practice of infanticide legitimized in America? The answer may lie, at least in part, with a quarter-century-old regulation established by the Department of Health and Human Services (then known as the Department of Health, Education and Welfare) in 1975. It came to light during the review by the new Bush administration of thousands of Clinton-imposed federal regulations issued in the final days of his presidency.

The regulation in question, a final rule of the Department of HHS number 45 CFR Part 46, RIN 0925-AA14 is found in the January 17, 2001 issue of the Federal Register, Volume 66, Number 11. Initially adopted in 1975, it was revised and, if not for the Bush 60-day-hold, would have become effective on March 19, 2001.

HHS regulates research involving human subjects through regulations like the one in question, which pertains to research involving fetuses, pregnant women, and human in vitro fertilization. It was revised to allow pregnant women to participate in research, particularly with respect to treatment of HIV infection. It also sets forth the rules under which fetuses can be experimented upon. Our alarm bells went off when we saw the term “fetus” applied to a baby after delivery!

As we all know, the term fetus is used to describe one stage in the development of a human being. While still in the womb, he is called a fetus, but once born (delivered) he is no longer called a fetus but a neonate, a newborn, or the more familiar term, BABY!

In the Clinton regulation, HHS has used definitions substantially the same as those established in 1975. A fetus is defined as . . . the product of conception from implantation until a determination is made after delivery that it is viable. Let’s repeat that. Until a determination is made after delivery that it is viable. So, according to this agency of our government, a mother does not give birth to a baby. She gives birth to a fetus whose status as a human child has to be determined by somebody saying he is viable.

A nonviable fetus is defined as a fetus after delivery that, although living, is not viable. He is born, he is alive, but he is not viable so he’s still a fetus even though his mother, who isn’t familiar with HHS regulations, thinks she just gave birth to a baby.

HHS defines viable in the regulation in this way: Viable as it pertains to the fetus means being able, after delivery, to survive (given the benefit of available medical therapy) to the point of independently maintaining heartbeat and respiration. If a fetus after delivery is viable then it is a child as defined by Sec. 46.402 (a). Evidently this means that babies confined to neonatal intensive care units, who cannot breathe on their own and who need extraordinary care to maintain other bodily functions, are not officially recognized as babies or children by the United States government, but remain fetuses until designated viable by somebody whose status the regulation does not make clear.

We all know that the life of a fetus is not protected under the law in our country because, as the Supreme Court said in Roe v. Wade, he is not a person born or naturalized and therefore does not come under the protection of the Fourteenth Amendment. We now have discovered that for 26 years, babies who are delivered alive but considered not viable according to HHS are designated as fetuses, not children.

Is that the answer to how unwanted little babies at Christ Hospital can be legally abandoned and left to die? While millions of loving parents have and will pay any price for the finest medical care for their precious premature babies, what about those who are poor, frightened, alone and without insurance? Are their babies being allowed to die?

In a letter dated March 14th to Secretary Tommy Thompson from Reps. Joe Pitts (R-PA), Chris Smith (R-NJ), James Barcia (D-MI), and John Shadegg (R-AZ), the Congressmen said, “If this rule is allowed to proceed, the position of the federal Department of Health and Human Services with regard to human research subjects will be that babies born alive are not necessarily children. This cannot and should not be the position of an agency tasked with defending children and protecting life.”

It is right that the Bush administration has suspended the revision of HHS Regulation 45 CFR Part 46. It should be abolished along with the original regulation that has been in force since 1975. We expect nothing less of the Bush administration than to completely revise the federal approach to babies born alive so that they are respected and protected as members of the human family and persons born under the United States Constitution.

The temporarily suspended regulation can be found online.

To contact President Bush:

The Honorable George W. Bush
The White House
1600 Pennsylvania Avenue
Washington, D.C. 20500
White House Operator: 202-456-1414
White House Comment Line: 202-456-1111
White House Fax: 202/-56-2461

To contact Secretary Thompson:

The Honorable Tommy G. Thompson
Secretary of Health and Human Services
200 Independence Avenue SW
Room 615-F
Washington, D.C. 20201
Fax 202-690-7203