After the failure of the House to override Governor Cooper’s veto of SB 359 (“Born Alive Abortion Survivors Protection Act”), we discovered why some House Democrats voted “no.” These Democrats accepted faulty legal advice. There were three main legal errors.
- Some Democrats thought that Lily’s Law applied to children who survive lawful abortions. It does not.
The first error was propagated by Representative Queen. In a memo dated June 12th, 2019 to 14 Democratic Representatives, Representative Queen stated:
I voted against Senate Bill 359 because it is already law. Infanticide is not happening in North Carolina. We all agree that babies must be protected, however they are born. And, as Governor Cooper said when he vetoed this bill, our current law reflects that belief. In 2013, six years ago, I voted for Senate Bill 117, which codifies protections against murder for babies born alive. That bill passed the House unanimously, and it is law in our state today, General Statute 14-17. Senate Bill 117 was a clean bill to provide protections for born alive babies. Senate Bill 359 was politically motivated, and it goes a step too far, threatening and criminalizing doctors who are trying to help mothers through absolutely terrible situations.
As the bill’s title (“An Act to Codify the Common Law That It Is Murder Where a Child Who Is Born Alive Dies As the Result of Injuries Inflicted Prior to the Child’s Birth”) shows, Lily’s Law (G.S. § 14-17(c)) is not about the survivor of a failed abortion. 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. For example, an armed robber shoots a mother, with murderous intent, and also injures the unborn child. The unborn child survives long enough to be born but then dies. That is murder.
Murder of any degree is an “unlawful killing.” E.g. State v. Williams, 308 N.C. 47, 301 S.E.2d 335 (1983). If Lily’s law had been interpreted to apply to a lawful abortion followed by a live birth, after which the child died of injuries from the abortion (with no intention or overt act after the child was born alive) it would have been clearly unconstitutional under Roe v Wade and Planned Parenthood vs Casey et al. That it was unanimously passed in 2013 shows that no sentient legislator thought that it had anything to do with the care required by health care professionals after a failed abortion. Laws against unlawful killing do not apply to lawful abortions.
The Abortion Survivors Protection Act, Senate Bill 359, modified our murder statutes by setting out an alternative method of proving murder, that there was an intentional, overt act committed after the child was born alive. Lily’s law offers no protection to the surviving child of a failed abortion attempt. Representative Queen is not an attorney. Whoever suggested that line of defense to him was clearly mistaken.
The office of Representative Darren Jackson, the House Democratic leader, provided a memorandum on June 10th, 2019, that said:
Additionally here are current North Carolina criminal statutes that make SB 359 unnecessary:
It is a Class D felony under current law to unlawfully cause the death of an unborn child (G.S. 14-23.1). It is a Class F felony under current law to kill another human being by a culpably negligent act or omission (G.S. 14-18). It is a Class B2 felony, second degree murder, to kill a child born alive, with malice (G.S. 14-17). It is a Class A felony, first degree murder, to kill a child that is born alive, with malice and a specific intent to kill formed after premeditation and deliberation (G.S. 14-17)
Like Lily’s Law, G.S. §§ 14-23.1, et seq. protects unborn children from unlawful acts committed before birth. G.S. § 14-23.7 makes it clear that the entire article of which G.S. 14-23.1 is a part does not even apply to lawful abortions.
Voluntary manslaughter laws are almost certainly not applicable to a newborn child—which is why Representative Jackson’s office did not cite them (although others did). Involuntary manslaughter is “a culpably negligent act or omission” or an “unintentional killing” resulting from “an unlawful act not amounting to a felony nor naturally dangerous to human life.” State v. Wingard, 317 N.C. 590, 600, 346 S.E.2d 638, 645 (1986). Confusingly, “unintentional killing” requires some intentional act—just not one with the intent to kill. State v. Wilkerson, 295 N.C. 559, 582, 247 S.E.2d 905, 918 (1978). Under this definition, refusing to treat a child is not “unintentional killing” because it is an omission not an intentional act.
When a child survives a lawful abortion and dies because he or she does not receive treatment, that neglect of care is not a “culpably negligent act or omission.” The word “omission” is also modified by the term “culpably.” To be culpably negligent, the abortionist must have a legal duty to the child. The most relevant legal duty is a doctor-patient duty. Generally, a physician-patient relationship is only created when the physician consents to treat the patient. E.g., Prosser and Keeton on The Law of Torts § 56 (5th ed. 1984); Galloway v. Lawrence, 266 N.C. 245, 247, 145 S.E.2d 861, 864 (1966). A child born to a woman whom a physician is treating is not the physician’s patient, unless there are circumstances establishing that relationship (i.e. the doctor provides treatment to the child). Mozingo v. Pitt Cty. Mem’l Hosp., Inc., 101 N.C. App. 578, 585, 400 S.E.2d 747, 750 (1991), aff’d on other grounds, 331 N.C. 182, 415 S.E.2d 341 (1992). An abortionist could argue that his or her only duty to the child is to report the child to social services as neglected or dependent juvenile. By the time social services is able to investigate, the child would likely be dead. Without any duty to the child, an abortionist is not guilty of a “culpably negligent act or omission.”
Representative Jackson’s office cited class A and B felonies which are generally inapplicable. Most abortionists are not so foolish as to follow the Gosnell method and directly kill the child after it survives an abortion. Neglect will generally accomplish the abortionist goal – death of the child.
To clarify this, the “Born Alive Abortion Survivors Protection Act,” Senate Bill 359, requires doctors and other health care providers to provide medically reasonable care to children who survive an abortion and to report when a child survives an abortion. This would make it clear to both doctors and other providers what their legal duties and liabilities are.
While existing criminal law is inadequate, SB 359 would also have applied civil penalties to health care practitioners who refused to treat and report children who survive abortions.
In his 18 April 2019 veto message, Governor Roy Cooper said:
Laws already protect newborn babies and this bill is an unnecessary interference between doctors and their patients. This needless legislation would criminalize doctors and other healthcare providers for a practice that simply does not exist.
Governor Cooper and Democrats’ talking points ignore the effect of civil remedies.
In addition to the criminal penalties the “Born Alive Abortion Survivors Protection Act” provides effective civil remedies. Opponents of the bill completely ignore these. They may be as effective, if not more effective, than criminal penalties. A criminal penalty requires a unanimous verdict by 12 jurors based on proof beyond a reasonable doubt. In the current cultural environment, it is not hard to envision many counties where support for infanticide is so entrenched that a unanimous jury cannot be found to convict. Jury nullification is a real problem.
Civil remedies require proof by a preponderance of the evidence. A civil case may require a unanimous jury. But where there is no genuine issue of a material fact as to liability, many civil cases are resolved by summary judgment. Liability is decided solely by a judge.
What are those remedies 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.
The “Born Alive Abortion Survivors Protection Act” provides for statutory damages of three times the cost of the abortion. Since by definition these are all late term abortions, we estimate the cost at $3,000, which tripled is $9,000. The Act also provides for punitive damages. Punitive damages may be imposed for egregiously wrongful acts G.S. ID-1, such as willful or wanton conduct G.S. ID-(a)(3) and are limited to the greater of $250,000 and three times the compensatory damages G.S.ID-25(b). The “Born Alive Abortion Survivors Protection Act” also provides for attorney’s fees for the plaintiff if he or she prevails (or for the defendant if the suit is frivolous or brought in bad faith).
Paul Stam
Dan Gibson
