The 10th Circuit Aborts the Born-Alive Infants Protection Act

Even after Roe, there's law... and then there's abortion law. This time, Kansas pays the price.

Justice is supposed to be blind to the litigants, not to the law itself.

In 2017, Briar Clayton Eugene Adams, a resident of Kansas, was convicted of aggravated battery under Kansas law. In March 2020, he was once again convicted, this time under federal law, for illegally possessing a firearm. Adams pled guilty.

At sentencing, the federal court imposed extra prison time on Mr. Adams, because his earlier conviction for aggravated battery was a “crime of violence.” Adams appealed. His lawyers argued that aggravated battery is not a “crime of violence” in the state of Kansas, and therefore he was not subject to the increased sentence.

You have not heard of this case. I have not seen it reported anywhere. That’s right: today, De Civitate is breaking news!

Adams’ argument that he had not committed a “crime of violence” under federal law was a little convoluted, but let me walk you through it:

1. A “crime of violence” involves a violent act against a person.

2. Kansas’s aggravated battery statute (a state law) punishes battery against both born persons and unborn persons.

3. Unborn people are not “persons” under federal law.

4. Therefore, Kansas’s aggravated battery law punishes conduct against both persons and non-persons, at least as far as federal law is concerned.

5. Since conduct against a non-person is not violence, Kansas’s aggravated battery statute forbids at least some conduct that is not a “crime of violence.”

6. Therefore, violating Kansas’s aggravated battery statute is not a “crime of violence.”

7. Therefore, Adams cannot be sentenced to extra prison time because of a “crime of violence.” For federal law purposes, Adams has never been convicted of a “crime of violence” (even though Kansas state law disagrees).

This is a clever little argument with lots of moving parts, but you can see what a wild conclusion it reaches. Let me reiterate: Adams’ original conviction had nothing to do with an unborn child. He didn’t batter his pregnant girlfriend or anything. His argument is that, because hypothetically committing battery against a fetus wouldn’t count as a crime of violence under federal law, therefore the actual battery Adams actually committed against a born person doesn’t count as a crime of violence, either.

Nevertheless, Adams won his case last week. In United States v. Adams (case #21−3043), a three-judge panel consisting of Judge Bacharach (an Obama appointee), Judge Ebel (a Reagan appointee), and Judge Carson (a Trump appointee) unanimously overturned a lower court ruling and found Adams not guilty of a “crime of violence.” Their opinion is here.

For various complicated legal reasons that all sound sensible enough when you hear them in isolation, Adams may very well be right about items #4 through #7. I’m not a criminal lawyer, and I didn’t delve into those details.¹

I didn’t need to, because Adams’ whole argument falls apart at #3. The burden of proof rests upon Adams to show that an unborn child is not a “person” under federal law (and therefore cannot be the victim of a “crime of violence”). The fact that there’s a law on the books called the Unborn Victims of Violence Act might tip you off that this is a tough boulder to push!²

I recently discussed the status of unborn persons under federal law through the lens of the tax code. It’s complicated, but federal statutes have remained studiously neutral on the matter. Roe v. Wade decreed unilaterally that unborn persons are not to be recognized as such, which bound the judicial branch, but Congress never followed suit—and now Roe has fallen, its decrees annulled. In the post-Roe world, the 10th Circuit had no excuse for reaching the conclusion that unborn persons are not persons. They cited Montgomery v. United States (8th Circuit, 2011), but failed to recognize that Montgomery’s logic is entirely dependent upon Roe.³ No Roe means no Montgomery. No Montgomery means no excuse.

They didn’t just get this wrong. They got it wildly, obviously wrong in a way that shocked me, apparently pushed in that direction by a failure of the prosecution (Bryan C. Clark for the District of Kansas) to even raise the dispositive point.⁴

Adams’ argument hinged on the Born-Alive Infants Protection Act of 2002 (aka BAIPA). In 1999, it emerged that a number of hospitals were performing “live-birth abortions.” In this procedure, the abortionist induces labor for a premature child. Then, rather than giving the (now-born) child medical care, the abortionist either abandons the child to die in a utility closet, or deliberately kills the already-born baby (whether by stabbing or by poisoning). This would appear to be infanticide. However, pro-choicers argued that a pre-viable baby was actually legally not a person and could be neglected and killed without consequence, even if that baby had been born. Worse, several hospitals were following that advice. Congress therefore passed BAIPA to reaffirm the long-held rule that, in fact, yes, at the very least, all children born alive are “persons,” and killing one of them is murder.⁵

Here are sections (a) and (b) of the Born-Alive Infants Protection Act (1 USC 8), which is itself part of a larger and much older law called the Dictionary Act (1 USC):

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.

(b) As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

Adams argued that this law right here provides the federal definition of “person,” and, since unborn children have not been born alive, they are therefore not persons. Therefore they cannot be victims of a “crime of violence,” and so on and so forth and the bottom line is Adams is exempt from an increased prison sentence for his aggravated battery, even though the person he battered was already born. QED.

The prosecution rebutted that “the term ‘include’ does not limit what the term ‘person’ means.” Thus, the term “person” could include unborn children, even though they aren’t expressly mentioned here. This is grammatically true, but needs more supporting evidence to become substantive, and the prosecution only mentioned it in a drive-by sentence in a footnote on page 23 of their Respondent’s Brief.

Looking strictly at 1 USC 8(a) and 1 USC(b), then, the Tenth Circuit Court of Appeals concluded that, under federal law, any member of the species homo sapiens that has not been “born alive” is also not a “person,” at least not for purposes of federal law. That’s… a pretty reasonable reading of the those two paragraphs, isn’t it? So why am I so mad about this?

Well, this would probably blow the minds of Judges Bacharach, Ebel, and Carson, who are apparently totally unaware of it, but BAIPA is not just those two paragraphs.

That’s right, kids: there’s a third paragraph, and it blows the Tenth Circuit’s theory to kingdom come!

(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.

This paragraph is known as the “neutrality clause.” It was included in the law in order to prevent activists (whether pro-life or pro-choice) from using BAIPA to affect the legal status of unborn children in any way. Its text could not be clearer: BAIPA exists to clarify that born-alive infants are persons, and has absolutely no bearing whatsoever on the question of children who have not yet been born! As I noted in my article on the unborn and taxes, you cannot use BAIPA in a court of law to advance an argument for or against unborn personhood, because it expressly says you can’t!

But that’s exactly—exactly—what the court in United States v. Adams did. They concluded that federal law does not include unborn children within the definition of “person,” and their sole evidence for this was BAIPA. They used BAIPA to “deny” a “legal status” applicable to the members “of the species homo sapiens at any point prior to being born alive”: that is, the status of legal personhood.

This directly violates federal law. The text itself could not be clearer on this point. Neither could Congress’s legislative will and purpose. Neither could a strict or loose construction change any of this. There is no interpretive theory that allows you to get around BAIPA’s express instruction that courts are not allowed to use BAIPA to do the very thing the Adams court just used BAIPA to do.

How, then, do you think the Adams court justified aborting paragraph (c) of the Born-Alive Infants Protection Act anyway?

They didn’t.

There is no mention of 1 USC 8(c) in the court’s opinion.

There is also no mention of it in the oral argument.

There is no mention of it in any of the briefs.

There is no mention of it in the cases cited.

The Adams Court appears, to all intents and purposes, to be totally unaware that 1 USC 8(c) even exists.⁶

I want to blame the Court for this, but, really, this failure lies with the prosecution, which could have (and should have) swatted away the defense’s entire Dictionary Act argument in one sentence. They didn’t have to dwell on it. They could have still done it in a footnote, if they wanted. The defense brought up 1 USC 8, and very intelligently omitted the third paragraph that devastates their argument—and, hey, good for them, that’s zealous advocacy for their client, which is their job. It was the prosecution’s job to look up the statute and notice that, hey, they can’t actually do that.

This simple citation would have caused the defense’s federal-law argument on personhood to collapse. Their fallback argument was hilarious. (Read it starting on page 30/printed page 15 of this combo PDF.)

First, the defense argued (correctly) that, in the absence of a clear federal definition of “personhood,” the courts should fall back on ordinary usage, as exemplified by English dictionaries.

Then, they listed a whole bunch of dictionary definitions. Every single definition they cited included unborn children unambiguously. We discussed most of those definitions in my piece on fetuses and tax law, so I won’t repeat my entire analysis. Suffice to say that the very first argument the defense made was that an unborn human is not a “person” because, according to the Oxford English Dictionary, an unborn human would first have to qualify as a “child.” So, wanna guess the Oxford English Dictionary’s first definition for “child”? “An unborn or newly born human being.” The defense wisely didn’t mention that.

It goes on in this vein for several pages.

The best bit was when the defense argued that the definition of “person” must not include unborn children, because unborn children are incapable of (inter alia) “unlawful activity” or “exchanging” or “deriv[ing] funds”. This is true, but the defense apparently did not realize that their argument would also strip one-year-old infants of legal personhood!

In short, it was five pages of desperate poppycock that any decent lawyer could have torn through in a few billable hours.⁷

The prosecution declined to do that. The prosecution didn’t even bother to force the question of common English usage, because they did not confront the defense’s abuse of BAIPA. They focused, instead, on other, more technical issues about how the crime was charged. They thus lost the case. This not only allowed Adams to walk free much sooner, but it harmed the cause of unborn children nationwide, and it harmed the rights of all Kansans to have battery against their own bodies recognized as a “crime of violence”—because a federal court failing to follow clear federal law, ordinary English meaning, and even, failing all that, the superior conscience of the state of Kansas, which is at least trying to protect all lives.

Incidentally, Kansas is voting next week on whether to overturn a state-court decision that created a right to second-trimester dismemberment abortions. If the amendment fails, Kansans will be forced to choose between giving up their personal protections for unborn victims of violence (leaving kids like Conner Peterson less protected), or conceding that a crime of violence against anyone in Kansas doesn’t count for federal law, all because Kansas is too generous in recognizing and protecting fetal victims. Remember: Adams’ crime had nothing to do with abortion or unborn children, but his fate was nevertheless decided by an absurd distortion of an abortion-related law that was only passed in the first place because abortionists were killing born-alive infants in hospitals.

Kansas should resist that obscene choice. Kansans should Vote Yes on August 2nd.

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POSTSCRIPT: My criticism in this piece was particularly unsparing, and characters like Bryan C. Clark, AUSA, are not exactly household names who are routinely subjected to online screeds. As always in such cases, I invite anyone involved in this one to respond to my critique. I promise to publish such responses without revision.

Whenever I see this many smart people with actual professional credentials doing something incredibly embarrassingly stupid, I do pause to think through whether maybe I’m the one doing something incredibly embarrassingly stupid. I publish anyway only once I’m pretty sure that’s not the case. The tell is that no one even addressed 8(c).

PHOTO: by Mitalivshanbhag1810338 and used under a Creative Commons Attribution-Share Alike 4.0 International License.

1. I’m not a lawyer at all! But there are some parts of the law I know something about, and criminal law isn’t one of them.

2. To be perfectly fair, as the 8th Circuit explained in Montgomery v. United States in 2011, the UVVA does not expressly define an “unborn child” as a “person.” This fight was deliberately and wisely avoided in order to win bipartisan supermajority support for the law.

On the other hand, the Unborn Victims of Violence Act does use the phrase “unborn child” and does nothing to preclude the fetus’s recognition as a person based on other provisions of law or the ordinary English meaning of “person.” (Also, not legally binding and Montgomery was right to ignore it… but, c’mon, look at the title! You can’t have a victim without a person!)

3. Montgomery considered and correctly rejected arguments that the Unborn Victims of Violence Act and/or the Born-Alive Infants Protection Act had positively and definitively expanded the federal definition of personhood beyond what Roe allowed. The Montgomery court did not consider the personhood of the unborn child as a matter of first impression, correctly considering itself bound by the sweeping decree of Roe in the absence of definitive guidance to the contrary. Roe, of course, had decreed that the unborn have no personal rights that the Court is bound to respect. But that decree is gone.

In this new situation, Montgomery provides no precedent or even persuasive argument on the question of fetal personhood. Since Roe had settled the matter, Montgomery’s analysis of the underlying question was not even perfunctory; it simply didn’t exist.

In perfect fairness, the 10th Circuit doesn’t only cite Montgomery. It also cites Gomez Fernandez v Barr (9th Circuit, 2020). However, Gomez Fernandez largely depends on Montgomery. To the extent that it offers precedent or persuasive argument independent of Roe and Montgomery, it makes the same mistake the 10th Circuit does in Adams. However, as a case decided during the Roe era, this was more forgivable. (Also, most of the docket in Gomez Fernandez is restricted to the public, so it’s hard to figure out exactly what the argument was there.)

4. The prosecution all but conceded the non-personhood of the fetus off the bat and spent almost the entirety of both its reply briefs and its oral argument spinning an elaborate tale wherein the Kansas law against aggravated battery should actually count as two laws, one for battery of a born person and a separate law for battery of an unborn child. The prosecution argued that Adams was convicted under only the first law, which is a crime of violence.

Basically, instead of confronting the issue of the unborn child’s personhood under federal law, they attempted to avoid it. Perhaps they calculated that conceding the point gave them the best chance of winning the case against Adams, which, in fairness, is the prosecution’s sworn duty and must always be its highest priority.

5. It bears mentioning that BAIPA did not solve all our problems in this department. We know that some abortionists still sometimes murder children after they are born. Some, rarely, are caught and prosecuted, usually after they kill a mother as well. Others routinely get away with it. Having a law is not enough; it must also be enforced.

6. Ditto the court in Gomez Fernandez. Yeah, don’t think I’m letting you off the hook just because I have such low expectations of the 9th Circuit! You, too, did bad!

7. Well, you know, actually the rule of lenity argument was not terrible. So four and a half pages of poppycock and a solid paragraph of something at least worth thinking through.