Executive Order on Protecting Vulnerable Newborn and Infant Children

President Trump recently signed an “Executive Order on Protecting Vulnerable Newborn and Infant Children.” The September 25 Order directs the Secretary of Health and Human Services, Alex Azar, to implement “the policy of the United States to recognize the human dignity and inherent worth of every newborn or other infant child, regardless of prematurity or disability, and to ensure for each child due protection under the law.” The policy is not new, but the ramifications of its enforcement are far reaching.

In 1999, Christ Hospital in Oak Lawn, Illinois, became the epicenter of a scandal that rocked the nation. The hospital, operated jointly by the United Church of Christ and the Evangelical Lutheran Church in America, was placed under formal investigation by the Illinois Department of Health after nurse, Jill Stanek, testified before congress that babies who survived abortions there were left to die unattended in a “utility room.”

As the scandal grew to implicate other hospitals, the Born-Alive Infant Protection Act (BAIPA) was passed by voice vote in the U.S. House of Representatives and by unanimous consent in the Senate. It was signed into law by President George W. Bush, on August 5, 2002.

BAIPA simply says that “In determining the meaning of any Act of Congress [etc.], 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.” The President’s Executive Order applies this law to two specific acts of congress.

For 34 years, the Emergency Medical Treatment and Labor Act (EMTALA) has required health care facilities to offer the full range of life-saving care that they have available to every individual regardless of circumstances. The Executive Order instructs the HHS to make sure that these facilities apply this 1986 law to “every infant member of the species homo sapiens who is born alive at any stage of development.”

Emergency medical treatment should apply this same standard of care to children born-alive regardless of how premature, or whether the birth was spontaneous or induced. In the same way, babies with disabilities should receive equal treatment. The Rehabilitation Act of 1973 prohibits discriminating against disabled people “in any program or activity receiving Federal financial assistance.” The Executive Order specifies that children born with disabilities like spina bifida and Trisomy—even if premature—are equally protected under the Act.

These directives became necessary, according to the Order, because “some hospitals refuse the required medical screening examination and stabilizing treatment or otherwise do not provide potentially lifesaving medical treatment to extremely premature or disabled infants, even when parents plead for such treatment.” This is not a hypothetical statement.

HHS secretary Azar reported that “in May 2020, HHS determined that an Ohio hospital had failed in 2017 to ensure medical screening examinations required by EMTALA were performed for twins born prematurely (at 22 weeks gestation) who were not sent to the hospital’s neonatal intensive care unit and died within several hours after delivery.”

Emery, the first-born, lived unattended for 45 minutes after he was born.  On a video which has been deleted by YouTube his mother, Amanda Finnefrock, can be heard crying and pleading with the hospital staff to give emergency care to her dying son.

Elliot, the second-born and larger twin, survived for over two hours breathing on his own. Despite Amanda’s pleading, the hospital did nothing. After he died, she can be heard crying, “Mommy tried. Mommy tried.” The HHS Office of Civil Rights is also investigating this incident for civil rights violations.

In addition to specific violations, the Order also found that: “Hospitals might refuse to provide treatment to extremely premature infants — born alive before 24 weeks of gestation — because they believe these infants may not survive, may have to live with long-term disabilities, or may have a quality-of-life deemed to be inadequate.”

This excuse, cited by President Trump’s Executive Order as a clear violation of EMTALA and the Rehabilitation Act, echoes the justification that Governor Gordon gave for his veto of SF 97 “Born alive infant-means of care.” In his veto letter, Gordon wrote, “This bill would eliminate the opportunity for a child to pass away in the loving arms of its parents, rather it would require that a child be removed from those loving parents and placed in a situation where the child might still pass away...” Just because a child “may not survive,” is no reason to deny emergency medical care.

Until now, hospitals have been allowed to ignore BAIPA, in part, because the 2002 law did not include any criminal penalties. SF 97 sought to address that omission in Wyoming law. Meanwhile, Wyoming’s own Representative, Liz Cheney, has been a cosponsor and tireless proponent of H.R. 962, the Born-Alive Abortion Survivors Protection Act, to close the loophole in Federal law.

Introduced almost two years ago, H.R. 962 adds penalties and definitions to BAIPA. Since then, 205 members of the U.S. House of Representatives have petitioned Speaker Pelosi to bring it up for a vote. They have brought the “discharge petition” on 80 separate occasions, and on 80 occasions the bill has been blocked from receiving a vote.

Unlike SF 97 and H.R. 962, the Executive Order does not rely on criminal penalties, but on monetary incentives. By instructing the HHS to follow the law and withhold federal funding from institutions that do not comply with BAIPA, it gives a greater incentive for health-care institutions to offer medically appropriate care to premature babies, including those with birth defects and genetic anomalies.

In addition, the Executive Order also prioritizes discretionary grant funding, available from the National Institutes of Health, to direct “research dollars for programs and activities conducting research to develop treatments that may improve survival—especially survival without impairment—of infants born alive, including premature infants or infants with disabilities, who have an emergency medical condition in need of stabilizing treatment.“ These grants are to be made available both to research programs and to training hospitals.

The Order protecting vulnerable newborns is little more than 900 words long, and it makes no policies or regulations not already contained in federal law. Nevertheless, it could have a major impact on the lives and well-being of countless tiny people. It powerfully applies America’s principle that, “Every infant born alive, no matter the circumstances of his or her birth, has the same dignity and the same rights as every other individual and is entitled to the same protections under Federal law.”