1. If the Born Alive Infants Protection Act was signed into law on the federal level, why is it needed in individual states?
In general, it is best to think of federal law and state law as two separate realms and to independently evaluate the adequacy of each.
To begin, most crimes of violence are governed exclusively by state law, not federal law.
Furthermore, the federal BAIPA only establishes that when the terms "person," "human being," "child," or "individual" appear in a federal law or regulation, they must be construed to include a "born-alive infant," and BAIPA provides an explicit definition of what it means to be a "born-alive infant."
The federal BAIPA applies everywhere in the U.S. But it applies only to the interpretation of federal laws and regulations. Thus, if a federal prosecutor had at hand some federal law or regulation that would be violated by putting live aborted babies in biohazard bags to suffocate, then BAIPA ensures offenders can't get off by arguing they weren't really persons/humans he was putting in the bag. But first there must be a federal law or regulation that applies to the act at all.
The same question could arise under the laws of a state: Is this entity who is outside the mother a "person" for purposes of this or that law?
Suppose a baby is born alive during an abortion, and the abortionist smothers the baby with a blanket. The district attorney charges him under the state murder or manslaughter statute, but he offers the defense that what he killed was not a "human being" but a "fetus ex utero" (or whatever). The state court would look to the state law to determine whether or not there was indeed a legal victim.
There is a recent case demonstrating that current Illinois state law regarding “born-alive infants” is inadequate and archaic.
Palatine, Illinois, resident Elizabeth Ehlert was twice convicted of murdering her newborn daughter in 1990 at delivery, alone in her bedroom. But in 2002, an Illinois appeals court determined, “[T]he single, short cry the witness [boyfriend] thought he heard, if it occurred, may have occurred before complete separation from the mother, and therefore it is not sufficient to prove live birth. Because the evidence cannot support a finding beyond a reasonable doubt of live birth, we must reverse the conviction.”
According to Legal Affairs magazine, reporting on the Ehlert case in its September/October 2004 issue:
“Illinois common law holds that a baby is not a person until it has established a life independent of its mother. The separation doctrine… according to the Illinois Supreme Court, holds that "a fetus must be totally expelled from the mother and show a clear sign of independent vitality" before it can be considered to have been born.”
Added the Daily Herald on September 17, 2003, “Attorneys for Cook Co. State’s Attorney Richard Devine… said given current forensic and medical technology, the 183-year-old law no longer makes sense and should be overturned. ’What you have here is the horrific scenario in which a mother who doesn’t want her baby delivers the baby, the baby is out and still connected by the cord, and under the complete separation doctrine… she can kill that baby,’ said Peter D. Fischer, an assistant Cook Co. state’s attorney. ‘She can stab it, she can strangle it, do anything and it’s not murder. This killing of a full-term, 6-pound, 19-inch long baby is nothing, and we believe that rule cannot stand in the modern age.’”
In closing, a given act might simultaneously violate both federal and state laws. Then, both offenses could be prosecuted separately by the respective sovereigns. For example, shooting a federal judge would violate the state murder law but also a federal law against killing federal judges. If a federal statute is at issue, it could be a statute containing criminal penalties, civil penalties, or no penalties at all.
Responses to Born Alive Act Frequently Asked Questions