By L.A. Williams
Christian Action League
October 4, 2019
While Monday morning quarterbacking can’t change the outcome of Sunday’s game, when lawmakers land on the wrong side of a life-and-death decision, it’s wise to find out what misinformation may have influenced their actions, especially when the issue will likely come up again. That’s the case with the failure of the North Carolina House to override Governor Roy Cooper’s veto of Senate Bill 359, the Born Alive Abortion Survivors Protection Act.
“Looking back at this vote — 67 in support and 53 opposed, five votes short of the needed supermajority — it’s hard to believe that it was even close when you consider that the bill is about saving babies who are living, breathing, alive,” said the Rev. Mark Creech, executive director of the Christian Action League. “What’s now becoming clear is that many of those who opposed the bill and voted for the Governor’s veto were under the false impression that North Carolina law already protects these infants. That is simply not the case.”
Filed partly in response to efforts in New York and Virginia to legalize infanticide, SB 359 would have made it a felony for doctors to deny appropriate medical care to babies born alive after a failed abortion and would have required nurses and other staff to report the incidents. It passed both chambers before being nixed by Cooper. Only two Democrats supported the override.
Paul Stam, an attorney from Wake County and the former House Speaker pro-tem, said some House Democrats based their opposition to the bill on faulty legal advice, including the misperception that Lily’s Law, which was passed in 2013, already protects abortion survivors.
“Lily’s Law (G.S. § 14-17(c)) is not about the survivor of a failed abortion,” Stam wrote in his analysis of the July vote. “Rather, it codified the common law rule that if an unborn child was injured by an unlawful act prior to birth, then survived until birth, but then died after live birth, that would be murder.”
The law was named for Lillian Grace Broom of Mebane, who died as a result of complications from premature birth after her mother was shot. It does not apply to babies born alive during abortion because, unlike the attack on Broom’s mother, abortion is not an unlawful act.
Stam said some Democrats may have based their faith in this law as a protection for abortion survivors on an early-June email from Rep. Joe Sam Queen (D-Haywood) who assured his colleagues that the 6-year-old law (Senate Bill 117 which became art of General Statute 14-17) “was a clean bill to provide protections for born alive babies.”
Queen wasn’t the only lawmaker pointing to laws that don’t apply. House Democratic leader Darren Jackson (Wake) issued a similar memo referencing General Statutes 14-17, 14-18 and 14-23.1.
Jackson rightly noted that G.S. 14-23.1 makes it a Class D felony to unlawfully cause the death of an unborn child. But obviously born-alive abortion survivors are not “unborn,” so this law does not apply to them. The other statutes mentioned deal with murder and address involuntary manslaughter, which is defined as “a culpably negligent act or omission” or a an “unintentional killing” resulting from “an unlawful act not amounting to a felony nor naturally dangerous to human life.”
“’Unintentional killing’ requires some intentional act — just not one with the intent to kill,” Stam explains. “Under this definition, refusing to treat a child is not ‘unintentional killing’ because it is an omission not an intentional act.”
Neither does refusing to treat a child meet the legal standard of a “culpably negligent act or omission.”
“To be culpably negligent, the abortionist must have a legal duty to the child,” Stam clarifies. “The most relevant legal duty is a doctor-patient duty. A child born to a woman whom a physician is treating is not the physician’s patient, unless there are circumstances establishing that relationship.”
This law doesn’t protect the baby born during an abortion, because the abortionist could argue that his only duty to the newborn, which is not one of his patients, is to report the child to social services as a neglected or dependent juvenile. By the time social services is able to investigate, the child would likely be dead.
Stam further points out that laws against first- and second-degree murder, as referenced by Jackson as reasons that SB 359 was not needed, do not compel doctors to administer appropriate medical care to babies born alive after a failed abortion.
“Most abortionists are not so foolish as to follow the Gosnell method and directly kill the child after it survives an abortion,” Stam says. “Neglect will generally accomplish the abortionist’s goal – death of the child.”
In addition to their false belief that North Carolina already has laws to protect born-alive abortion survivors, those who voted against SB 359 overlooked the importance of the civil penalties the bill includes for health care practitioners who refused to treat and report children who survive abortions.
These may be as effective, if not more effective, than criminal penalties, Stam says. Under the Born Alive Abortion Survivors Protection Act, the woman may sue for money damages for all injuries, psychological and physical.
“Since these all arise, by definition, from late-term abortions there are obvious physical injuries, not the least of which is the increased risk of preterm birth in subsequent pregnancies with the possibility of the child’s death and the long-term sequelae of brain injury, culminating in cerebral palsy. Psychological injuries from a failed abortion so late in pregnancy that the child survives will create in most women psychological trauma,” Stam says.
The Rev. Creech says both civil and criminal consequences should await those who refuse to acknowledge that a baby — wanted or unwanted — once born, has every right to be protected by North Carolina law. That is why he is hopeful the Born Alive Abortion Survivors Protection Act will be taken up again in a future session of the Legislature — one in which lawmakers fully understand the need for the measure and aren’t led a stray by legal errors.
“This issue needs to be revisited with a new governor, like Dan Forest,” Creech said.
Currently the state’s Lt. Governor, Forest has been clear on his stance regarding abortion and the growing disregard for life in the United States.
“Two thousand years ago, Christians fought to end infanticide. It was a standard practice back then and it was because of Christianity that practice went away and we added the idea of human dignity to babies. Here we have seen in Western Civilization, as of late, when we are literally living in a post-Christian culture in Western Civilization that we see this issue of human dignity before us again…We see it on social media, the way that people talk to one another, the way that people flame one another, the way that people hate one another, the lack of human dignity in conversations…the lack of human dignity in politics, the lack of human dignity in just about every aspect of life,” Forest said during a rally for the measure back in May. “So there should really be no surprise that there is a lack of human dignity about unborn babies or even about babies that are born laying on a table…We are going to look back on this time in American history and say this was the worst atrocity we have ever committed in America.”