Henry Hyde, the dauntless Tory from Illinois, is not highly regarded as a constitutional scholar by the American Civil Liberties Union or by his liberal colleagues in Congress. During a recent historic debate in the House, however, on the civil liberties of handicapped infants about to be denied life-saving treatment by their parents and doctors, Hyde made the fundamental constitutional point:
"We have got a human being here . . . . A question of life or death for a born person ought to belong to nobody, whether they are parents or not. The Constitution ought to protect that child."
The immediate cause of the debate was certain proposed amendments to the Child Abuse Prevention and Treatment Act. They expand the definition of child abuse to include the withholding from "infants at risk" of medical treatment or nutrition solely because of these babies' handicaps. Also, for the first time in the history of the republic, the legislation mandates that each state set up procedures for reporting and investigating cases in which infants are about to be "let go," as they say in some hospitals. Any state failing to set up such procedures could lose its federal funds for the prevention and treatment of child abuse.
There is no language in the bill insisting that all infants be treated. Much reliance is placed on the judgment of hospital review committees that the bill urges be set up. The legislative history of this statute makes clear that its intent is not for ravening state bureaucrats to raid neonatal intensive-care units in order to "rescue" babies born dying or without a brain.
This bill came into being because there is not much documentation of infants with far less devastating defects having been killed in the nursery--the preferred term is "allowed to die." They are killed because parents and doctors do not believe the future "quality of life" of these babies is worth the cost, emotional and otherwise, of saving them. And for years, these decisions were customarily made without the infant's having its own independent advocate, without court review, without the intervention of any state agency.
It wasn't until the 1982 case of the Bloomington baby--an infant who was starved to death only because he had Down's syndrome-- that some public alarm began to be raised about whether parents and doctors are in fact entitled to have the very last word on these matters.
This year, in the Feb. 2 House debate on the child-abuse bill, the opposition claimed that what happened in Bloomington, admittedly horrifying, was an aberration. But Down's syndrome babies have been starved to death in Maryland and in Connecticut; and spina bifida babies have been sentenced to death in Oklahoma based on highly speculative projections of their future "quality of life." And there are a good many other questionable infant deaths, exactly how many we'll never know because the hospital records are not always too clear on precisely how the Baby Doe's left us.
But it is true that because of the very short life of the Bloomington baby, the Department of Health and Human Services has issued regulations encouraging the formation of hospital review boards and other protections for infants at risk. Isn't this House statute, then, redundant? No, because the HHS regulations are only administrative interpretations of another federal law, section 504 of the Rehabilitation Act, that forbids discrimination against the handicapped. A new administration could very well dilute those regulations in its zeal to protect the privacy of parents and physicians in these cases. (The awful privacy of the infant is overlooked.) But statutory language cannot be so easily weakened.
These protections of the rights of infants--finally being recognized as persons under the constitution--passed the House. (This part of the House bill appears to have a reasonable chance of acceptance by the Senate, at least in conference.)
Voting against the Baby Doe section of the Child Abuse Prevention and Treatment Act were most of the more reknowned liberals in the House: Conyers, Dellums, Downey, Edwards of California, Kastenmeier, Obey, Markey, Schroeder, Weiss, and even Peter Rodino, guardian of the Constitution all these years as chairman of the House Judiciary Committee. Unlike Henry Hyde, when these liberals go to the Constitution for sustenance at the end of a long day of compassion striving to prevent anyone from falling through any safety net, they do not see infants at play among the hedges of the Bill of Rights.
The liberals see, as the House debate revealed, only the anguish of parents and the specter of mechanical bureaucrats. But what of the very real infants at risk? Why, they belong to the parents. For better or for worse. And the ACLU? In not a single Baby Doe case anywhere in the country has the American Civil Liberties Union fought for the constitutional liberties of the infant. It's as if all these handicapped babies were still mere fetuses.