Born-Alive Infants Protection Act of 2002

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Born-Alive Infants Protection Act of 2002

Alberto B. Lopez

Abortion and its regulation has long sparked heated debate in the United States. During the nineteenth century, many states authored laws making the performance of abortions illegal, but state governments enforced those laws only sporadically. By the mid-twentieth century, however, states began to enforce their anti-abortion laws more rigorously, which led some women to seek abortions outside the medical profession to avoid detection. Because of the dangers associated with illegal abortions, public demand for safe abortions increased during the 1960s; therefore many states responded by legalizing abortion under certain circumstancessuch as where a threat to the mother's health existed or when the unborn child faced physical or mental impairment. Nonetheless, abortion regulations remained on the books and largely eliminated the procedure from the consideration of a pregnant woman whose own health or that of her unborn child was not at risk. As a result, society continued to be passionately divided between abortion prohibitions that protected an unborn child's life and permitting a woman's choice to have an abortion.

The Supreme Court examined the impact of abortion regulations on a woman's right to choose to have an abortion in its landmark decision of Roe v. Wade (1973). In Roe, the Court deemed a Texas statute that criminalized abortion unless necessary to save the life of the mother to be an unconstitutional infringement on a woman's right to privacy. Although the Court determined that a woman had a right to terminate her pregnancy rooted in her right to privacy, the Court balanced this right against the need to protect both the mother's health and the life of the unborn child. Implementing a trimester framework to guide states in their regulation of abortion, the Court ruled that the state is barred from prohibiting abortion during the first three months of pregnancy, but it may regulate abortions to the extent necessary to protect the health of the mother during the second trimester. During the final three months of pregnancy, the Court decided that the fetus could live independently of the mother and deserved constitutional protection at that point. As a result, the Court ruled that the state may ban abortions during the third trimester unless the life or health of the mother is threatened.

Despite the court's decision in Roe, the battle over abortion and its regulation continued in subsequent cases. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the court upheld Pennsylvania's ability to enact certain abortion regulations, such as a parental consent requirement for minors seeking abortions. However, the court reiterated that the state may not only prohibit abortions after viability of the fetus unless the mother's life or health is in jeopardy. Later, the Court struck down a Nebraska law in Stenberg v. Carhart (2000) that criminalized partial-birth abortions, a late term abortion technique involving the live delivery of an infant, while the head of that infant remains inside the woman's womb. Following Carhart, the United States Court of Appeals for the Third Circuit overruled New Jersey's partial-birth abortion ban in Planned Parenthood of New Jersey v. Farmer (2000) and held that an infant's legal rights depended upon the intention of the mother regardless of the physical position of the infant. If a mother intended to abort her pregnancy and the child survived the abortion attempt, then the Farmer decision suggested that the child had no right to medical care because the mother was not seeking to give birth in the first place. As a result, these controversial decisions brought another issue to the forefront of the abortion debatethe need for the legal protection of infants who survive abortion procedures and are born alive.


Congress placed the rights of infants who survive attempted abortions on its legislative agenda in the form of the Born-Alive Infants Protection Act of 2000, which sought to extend the protection of federal law to all born-alive infants. During legislative hearings, witnesses confirmed the implication of the Farmer decision by presenting evidence that infants born alive after failed abortions went without medical care and subsequently died. Nevertheless, opponents of the legislation questioned whether it interfered with a woman's right to choose in contravention of Roe and the jurisprudence arising from that decision. Although the proposal passed out of the House of Representatives, the bill failed to gain sufficient support in the Senate. However, the proposal made its way back to Congress one year later in the form of the Born-Alive Infants Protection Act of 2001. Citing the Necessary and Proper Clause of the Constitution as the legal basis to enact the statute, the House of Representativespassed the bill by voice vote and the Senate unanimously agreed in mid-2002. President George W. Bush signed the Born-Alive Infants Protection Act (P.L. 107-207, 116 Stat. 926) into law on August 5, 2002.

The stated goal of this statute is to extend legal rights to infants who are born alive; therefore, the law does not create new legal rights, but rather specifies to whom those legal rights attach. To that end, the primary effect of the law is to redefine words like "person, human being, child, or individual" in the United States Code to include "every infant member of the species homo sapiens who is born alive at any stage of development." As defined by the statute, the phrase "born alive" means "the complete expulsion or extraction (of an infant) from his or her mother ... at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion."

According to the Congressional Budget Office, the practical effect of this legislation is to amend approximately 15,000 provisions of the United States Code and some 57,000 provisions of the Code of Federal Regulations. Given its definitional purpose, the lack of controversy surrounding its enactment, and its similarity to existing provisions in thirty states, the Born-Alive Infants Protection Act of 2002 has yet to spur a flurry of litigation and its impact is largely symbolic. Moreover, the statute has done nothing to quell the deep-seated disagreement in society over abortion despite the support for its enactment. Indeed, history itself counsels that the tenuous balance between a woman's right to make choices in private and the right to life of an unborn child will be weighed and reweighed as medicine advances and as society changes.


Arkes, Hadley. Natural Rights and the Right to Choose. Cambridge, MA: Cambridge University Press, 2002.

Friedman, Lawrence M. American Law in the 20th Century. New Haven, CT: Yale University Press, 2002.

House Report No. 835. Born-Alive Infants Protection Act of 2000: Hearings on H.R. 4292 Before the Committee of the Judiciary of the House of Representatives, 106th Cong., 2d Sess. (2000). <>

National Right to Life Committee. "Born-Alive Infants Protection Act." <>

White House Press Release. "President Signs Born-Alive Infants Protection Act." <>.