WTE: Executive Order on Protecting Vulnerable Newborn and Infant Children

Last Friday, President Trump signed an “Executive Order on Protecting Vulnerable Newborn and Infant Children.” Having a direct connection to recent events in Wyoming and to the column I published only hours earlier, it merits further comment.

The September 25, EO directs the Secretary of Health and Human Services 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.” This 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 September 25, Executive Order applies this law to two specific acts of congress.

The Emergency Medical Treatment and Labor Act (EMTALA) of 1986 requires hospitals to offer the full range of life-saving care that they have available to every individual regardless of circumstances. Since BAIPA obviously applies, the Order instructs the HHS to make sure that health care facilities know this. 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.

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.”

The Order further 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.” Readers should recall that these are the exact concerns that were raised in debate on SF 97, “Born alive infant-means of care,” and were named in Governor Gordon’s veto letter.

Until now, hospitals have been allowed to ignore BAIPA, in part, because the 2002 law did not include any criminal penalties. As a remedy, H.R. 962, the Born-Alive Abortion Survivors Protection Act was introduced almost two years ago to add penalties and definitions. Since then, it has been blocked from receiving a vote in the House of Representatives on 80 separate occasions, and twice in the Senate.

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.”

Also published in the Wyoming Tribune Eagle on October 2, 2020.