The Bush administration issued guidelines yesterday advising physicians and hospitals that under a 2002 law they are obligated to care for fetuses "born alive" naturally or in the process of an abortion, and medical providers could face penalties for withholding treatment.
The law, signed by President Bush nearly three years ago, conferred legal rights on fetuses "at any stage of development." It specifies that a fetus that is breathing, has a beating heart, a pulsating umbilical cord or muscle movement should be considered alive and entitled to protection under federal emergency medical laws and child abuse statutes.
Several physicians interviewed yesterday said that definition appeared overly broad, as muscle twitching can occur after death.
Initially, the Department of Health and Human Services did not see the need to issue guidance on the Born-Alive Infants Protection Act. But shortly after his confirmation in January, Health and Human Services Secretary Mike Leavitt said he "received several inquiries on whether" the department was planning to develop regulations.
"As a matter of law and policy, the U.S. Department of Health and Human Services will investigate all circumstances where individuals and entities are reported to be withholding medical care from an infant born alive in potential violation of federal statutes for which we are responsible," Leavitt said in yesterday's press release.
Leavitt's aides refused to say who made the inquiries or whether the government had received any complaints of abuse or neglect involving a just-born or aborted fetus.
"I don't think I'm going to comment on whether we've had any," said Dennis Smith, director of the Center for Medicaid and State Operations at the Centers for Medicare and Medicaid Services. The agency has jurisdiction over the Emergency Medical Treatment and Labor Act, which guarantees medical screening and stabilization for any patient regardless of their ability to pay.
In a telephone briefing with reporters, Smith refused to elaborate on the definition of "alive" or to describe specific cases in which doctors would be legally required to treat a "baby," in his words.
He said the memos sent to state and local officials overseeing hospital regulation and child protection laws were "reminders of the responsibilities of hospitals to protect the rights of all individuals."
David Grimes, a licensed obstetrician/gynecologist who previously worked for the abortion surveillance division at the Centers for Disease Control and Prevention, said the act and yesterday's instructions were medically unnecessary.
"I don't see this as a big issue; physicians are going to do what's appropriate," said Grimes, who now practices in North Carolina. "It's all rhetoric from persons with political views they want to advance."
He said the act's definition of alive is "silly," given that it implies a fetus miscarried at 14 or 16 weeks "with no chance of survival" would be legally identified as a living person. Most medical experts agree that a fetus delivered before 23 weeks has little chance of survival, he said.
Some anti-abortion leaders, however, said yesterday's clarification is important.
"The 2002 law and today's actions by the agency were both badly needed, because there are those in our society who have convinced themselves that some newborn infants -- particularly those born alive during abortions, or with handicaps -- are not really legal persons," said Douglas Johnson of the National Right to Life Committee.
HHS officials distributed news of its decision to advocacy groups before the media briefing.
The most significant impact of the 2002 law, Grimes said, was a record-keeping change. Previously, a miscarriage before viability was classified as a spontaneous abortion. Under the new provision, it is recorded as a live birth followed by a neonatal death, and parents can claim the child as a tax deduction for that year, he said.