Scenario for a Horror Movie...

[capacitor]

Weird Al, several doctors have been convicted of murder after strangling or starving babies that were still alive after an abortion.

[Weird_AL_Einstein]

*Originally posted by capacitor *
**Weird Al, several doctors have been convicted of murder after strangling or starving babies that were still alive after an abortion. **

Cite?

*Originally posted by Otto *
**
I am unaware of any state or federal law or precedent which treats born humans differently on the basis of the circumstances under which the delivery was accomplished.
**

The article linked to in my last post provides an example of exactly that. I can dig up more if you like.

*Originally posted by Otto *
**
As for the Constitution, it does not define when someone is a “person,” it defines when a person is a citizen of the United States and of the state in which they reside.
**

True, it doesn’t explicitly define who is a person, it is this uncertainty that leads to the situation I posited in my “scenario”…the “children” simply weren’t defined as persons.

*Originally posted by Otto *
**
With all due respect, it matters not at all why some lower court judge or another may have invalidated a partial-birth abortion statute in light of the USSC decision in Nebraska v. Carhart. The Court held that Nebraska’s ban on partial-birth abortion (a term which, BTW, has no medical or legal meaning) was unconstitutional because it did not allow for an exception to preserve the health of the woman, it could potentially ban other abortion techniques than the one targeted by the law, and that it imposes an “undue burden” on a woman’s constitutional right to terminate her pregnancy.
**

I don’t follow your logic here. How does this relate to the issue of children born alive from botched “abortions”?

*Originally posted by Otto *
**
I’ve never heard of birthing a child and then abandoning it to die being called “abortion” before.
**

Children have been born alive from botched late term abortions and then killed. It is extremely rare but it does happen. Do you want cites?

*Originally posted by Otto *
**
Clearly, if the child is delivered alive and the mother abandons it to die, the child is “born” and a “person” and the mother has committed murder.
**

I agree, but as I said in a previous post, this is not necessarily what the law says.

*Originally posted by Otto *
**
I don’t think anyone in their right mind who supports a woman’s right to choose would condone actively or passively killing an actual live born child, and I don’t think anyone in their right mind would claim that a woman is entitled to kill a child born as the result of a botched abortion. **

I am having a debate with another poster who claims exactly that right now in this thread.

liebfels-Your cite proves quite effectively that this scenario could not occur in Texas. Not all state laws are the same though, so 1 down, 49 to go.

[Otto]

The article linked to in my last post provides an example of exactly that.

No, it doesn’t. It mentions a case in New Jersey in which a “partial-birth abortion” statute was invalidated. It does not appear to indicate that the court would sanction the killing of a child born alive after an attempted abortion. And again, since the USSC has spoken on this issue, whatever reason given by any other court prior to Nebraska v Carhart is irrelevant and not precedent. You have not provided an example of either law or precedent which allows for a born child to be treated differently on the basis of the methodology of its birth.

True, it doesn’t explicitly define who is a person, it is this uncertainty that leads to the situation I posited in my “scenario”…the “children” simply weren’t defined as persons.

One can’t be a citizen without first being a person, and again I have yet to see something defining a live born human as something other than a person.

I don’t follow your logic here. How does this relate to the issue of children born alive from botched “abortions”?

You seemed to be inferring from a federal appellate court decision that by invalidating a partial-birth abortion statute the court would allow for the killing of a born person as long as an abortion of that person had been attempted. I find your thinking flawed, but even were it not, since the USSC has ruled exactly why partial-birth abortion statutes are unconstitutional it doesn’t matter what reason a lower court may have given in another case.

I agree, but as I said in a previous post, this is not necessarily what the law says.

Please find me a cite for either a statute or binding case law which allows for the killing of a born person on the basis of that person’s having been the subject of an attempted abortion.

I am having a debate with another poster who claims exactly that right now in this thread.

Which would seem to indicate that person is not in his or her right mind.

[liebfels]

Weird Al, I think that the quote from the Planned Parenthood case used in the artilve you link to is taken out of context in the linked article. The judge in Planned Parenthood is trying to decipher the phrase “partial-birth abortion.” As part of her analysis, she mentions that it isn’t a birth at all, but an abortion. I’ll quote the original passage:

The Legislature’s argument that Roe and Casey are inapplicable to “partial-birth” abortion procedures because such procedures are infanticide rather than abortion is based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence. Positing an “unborn” versus “partially born” distinction, the Legislature would have us accept, and the public believe, that during a “partial-birth abortion” the fetus is in the process of being"born" at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth.

Moreover, that the life of the fetus is terminated when a “substantial portion” has passed through the cervix and is in the vaginal canal, does not without more transform an abortion procedure into infanticide. Again, the medical evidence clearly indicates that in many conventional abortion procedures the fetus may be killed, i.e. the heart ceases beating, when a substantial portion of the fetus (whether it be disarticulated limbs or part of the body of the fetus) is in the vagina and a portion remains in the uterus. In what can only be described as a desperate attempt to circumvent over twenty-five years of abortion
26
jurisprudence, the Legislature would draw a line based upon the location in the woman’s body where the fetus expires. Establishing the cervix as the demarcation line between abortion and infanticide is nonsensical on its face as well as inaccurate because that line may be crossed in any number of abortion procedures which the Legislature concedes are constitutionally protected. While there are unquestionably numerous ethical, philosophical, and moral issues surrounding abortion, we are unpersuaded that these issues – or our legal analysis – should turn on where in the woman’s body the fetus expires during an abortion.

from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=3rd&navby=case&no=995272

So, this was used in the context of determining what a legislature meant by a particular phrase that has no medical meaning. It doesn’t shed any light on whether a child who actually survives an abortion is a person. What the passage does stand for, is that if a fetus is moved from the uterus to the vagina during an abortion, the fetus isn’t being delivered.

Also, in the context of federal legislation covering this point, as covered in your linked article, although there might not be federal legislation on this point, my bet would be that a federal judge confronted with this issue would decide that a survivor of a botched abortion is indeed a person. I only checked Texas law because that’s the easiest for me to check. My bet would be, any court in the country confronted with a living, breathing survivor of abortion would decide it is a person.

[Weird_AL_Einstein]

*Originally posted by Otto *
**

The article linked to in my last post provides an example of exactly that.

No, it doesn’t. It mentions a case in New Jersey in which a “partial-birth abortion” statute was invalidated. It does not appear to indicate that the court would sanction the killing of a child born alive after an attempted abortion.
**

Yes it does, because the court seems to be implying that the resolution of the factual question of whether a birth has taken place depends on the intent of the mother. Remember, the life of a fetus may be terminated under the law; that is what happens in an abortion procedure. A fetus gains the protection of the law after it is born. If a child is born alive after a botched abortion, it could be said, using this decision as precedent, that the child was not as a matter of law “born”, and thus has only the legal rights of a fetus.

*Originally posted by Otto *
**
And again, since the USSC has spoken on this issue, whatever reason given by any other court prior to Nebraska v Carhart is irrelevant and not precedent.
**

That’s not how it works. Nothing the SC said in the Nebraska decision specifically contradicts the lower court decision. Only when the SC specifically strikes down a lower court decision does it cease to be precedent. As a practical matter, it now simply represents an additional reason why laws outlawing partial birth abortion are not allowed in NJ.

*Originally posted by Otto *
**

I don’t follow your logic here. How does this relate to the issue of children born alive from botched “abortions”?

You seemed to be inferring from a federal appellate court decision that by invalidating a partial-birth abortion statute the court would allow for the killing of a born person as long as an abortion of that person had been attempted. I find your thinking flawed, but even were it not, since the USSC has ruled exactly why partial-birth abortion statutes are unconstitutional it doesn’t matter what reason a lower court may have given in another case.
**

Not true. See my answer above, that starts “That’s not how it works.”

*Originally posted by Otto *
**

I am having a debate with another poster who claims exactly that right now in this thread.

Which would seem to indicate that person is not in his or her right mind.
**

Perhaps. If so, he or she is not the only one.

**
[/QUOTE]

*Originally posted by liebfels *
**Weird Al, I think that the quote from the Planned Parenthood case used in the artilve you link to is taken out of context in the linked article.

<snip>

So, this was used in the context of determining what a legislature meant by a particular phrase that has no medical meaning. It doesn’t shed any light on whether a child who actually survives an abortion is a person.
**

Yes it does…see my response to Otto above.

*Originally posted by liebfels *
**
My bet would be, any court in the country confronted with a living, breathing survivor of abortion would decide it is a person. **

*Originally posted by Otto *
**
You have not provided an example of either law or precedent which allows for a born child to be treated differently on the basis of the methodology of its birth.
**

*Originally posted by Otto *
**

True, it doesn’t explicitly define who is a person, it is this uncertainty that leads to the situation I posited in my “scenario”…the “children” simply weren’t defined as persons.

One can’t be a citizen without first being a person, and again I have yet to see something defining a live born human as something other than a person.
**

*Originally posted by Otto *
**
Please find me a cite for either a statute or binding case law which allows for the killing of a born person on the basis of that person’s having been the subject of an attempted abortion.
**

[sub]Grumble grumble. Make me work, will you? Ask me for cites…I’ll give ya cites…[/sub]
First, an overview of the issue, by John Leo in USN&WR:

http://www.usnews.com/usnews/issue/000925/25john.htm

The sworn testimony of two nurses at congressional hearings for the Born-Alive Infants Protection Act:

http://www.house.gov/judiciary/bake0720.htm

http://www.house.gov/judiciary/stan0720.htm

The sworn testimony of law professor at the same hearing:

http://www.house.gov/judiciary/arke0720.htm

From that statement, I take the following quotes:

**
In a case called Floyd v. Anders, in 1977, a child of about 25 weeks of gestation had survived an abortion, had undergone one surgery, and lived for 20 days before he died. The question had been posed as to whether there had been an obligation to preserve the life of that child. And the answer, tendered by (Judge) Haynsworth, was no. After all, the mother had decided on an abortion, and therefore, as Haynsworth said, “the fetus in this case was not a person whose life state law could protect.” To put it another way, the right exercised by the mother should not be frustrated, or negated, by the accident that the child happened to live. Or to put it more baldly, the right to an abortion must entail nothing less than the right to an “effective abortion,” or a dead child.

…the Supreme Court actually reversed the holding in Floyd v. Anders, or rather sent the case back for a reconsideration. But in an opinion per curiam the Supreme Court sent the case back on the ground that “the District Court may have reached [its] conclusion on the basis of an erroenous concept of ‘viability,’ which refers to potential, rather than actual, survival of the fetus outside the womb.” In all strictness, none of these comments, or moves, marks an explicit rejection of the claim that the right to abortion entails the right to an “effective abortion.”
**

An article about the abortion issue in Salon.com:

http://www.salon.com/politics/feature/2000/10/10/abortion/index1.html

From which I take this quote:

**
Furthermore, the president’s (Clinton) Office for Civil Rights wrote that protections against discrimination on the basis of age and disability don’t require doctors to treat seriously ill newborns as long as the parents consider them aborted.
**

Michigan and Hew Hampshire have proposed their own versions of the Born-Alive Infants Protection Act:
3 proposed Michigan laws:

http://www.legis.state.il.us/scripts/imstran.exe?LIBSINCWSB1093

http://www.legis.state.il.us/scripts/imstran.exe?LIBSINCWSB1094

http://www.legis.state.il.us/scripts/imstran.exe?LIBSINCWSB1095
NH “Live-Birth Infants Protection Act”:

http://gencourt.state.nh.us/legislation/2001/HB0390.html

From the fact that the lawmakers there felt compelled to introduce them, we can infer at least that there is some ambiguity in the laws at present concerning the status of children born alive from botched abortions.
Finally, an update on Illinois, from an Ilinois pro life site:

http://www.illinoisrighttolife.org/newpage36.htm

From which I take this quote:

**
It is wrong that current Illinois law mandates a doctor to pronounce a born-alive aborted baby dead but does not mandate the doctor to assess that baby for life and chances of survival. It is wrong that Illinois law mandates both birth and death certificates be issued – admitting that these aborted babies are indeed human – but does not give these babies any rights whatsoever to medical care
**

Itallics added by me