More on HB 2088

Here's the latest on the Kansas HB 2088 (.pdf), introduced by Rep. Peggy Mast (background here).

On January 31 I sent Rep. Mast an e-mail, and today I received a response from her.

My e-mail:

Greetings Representative Mast,

...

It would be most helpful for your constituents if you could clarify several outstanding issues raised by HB 2088.

According to the Department of Health and Human Services' (DHHS) estimate, nationwide in 1997 there were 105 discarded infants. [How many of these cases were in Kansas?] As you are probably aware, Kansas already has a "safe heaven" law (HB 2838) aimed at addressing the problem of discarded infants.

As tragic as each individual case is, given the small number of cases of discarded infants, and the fact that Kansas already has a law aimed at dealing with this problem, why is it necessary to introduce new legislation (HB 2088)?

Also, according to the DHHS, when it comes to strategies aimed at decreasing the number of discarded infants:

"At present, public education about resources available to pregnant women and alternatives to discarding an infant remains the primary method for addressing this issue."

Your proposed legislation (HB 2088) does not follow the DHHS' recommendations for addressing the issue of discarded infants. Why not? Moreover, on what do you base your assumption that HB 2088 will be effective in reducing the number of discarded infants?

Finally, a few specific questions related to the text of the bill:

1) Applicability limited to hospital births. If the intent is to reduce the number of discarder infants, why does HB 2088 only cover hospital births? [See the bill's definition of "[u]nlawfully giving birth without medical assistance".]

2) Criminalizing strangers. How intrusive are strangers permitted to be in order to comply with HB 2088? In order for them to determine the fetal estimated gestational age, will they be permitted unrestricted access to a woman's medical records on demand? Perhaps ad hoc bimanual pelvic exams?

3) Criminalizing unattended deliveries. Why is a woman giving birth (livebirth or stillbirth) without medical assistance presumed guilty?

4) Creating an obligation to seek medical assistance. Why is a woman giving birth obligated to seek medical assistance?

5) Infringement on personal/patient autonomy. Why isn't a woman giving birth allowed to refuse medical assistance?

6) Requirement to predict the future, and act based on that prediction. How is a woman to determine how long the newborn will survive for, immediately after giving birth?

7) Incorrect definition of "fetus". Why does the bill contain an incorrect definition of "fetus"?

8) Requirement to diagnose fetal age. How is a woman (or a stranger) expected to estimate fetal age?

Thank you for your time, and I shall look forward to your reply.

Rep. Mast's reply:

As you can see there has been a great deal of comment about the Baby Doe bill. I have received comment from several fronts. People have vilified me as uncaring. Some have been compassionate about the purpose of the bill and have realized that finding dogs dragging a 9 lb. baby boy around the neighborhood can have a tramatizing [sic] effect on some people. One person seems horrified about the death of whales, but seems to have little concern for the horrible death suffered by some newborns. One woman even went so far as to name the number that occurs in the nation on an annual basis and think that it cannot be such a big deal in the state of Kansas if you spread it out. My answer to that woman is four. Four deaths reported last year were the result of women who gave birth without medical assistance and discarded the baby (hope that you do not find that term offensive) in such a way as to have the body discovered later. That is four deaths in Kansas. I guess if you compare that number to all of the whales killed it may seem small to some, but to me and to other women who have lost their babies for some reason or another, it seems uncounsciousable [sic].

Well, I probably won't change any of your minds by telling you about the testimony of law enforcement who responded to 911 calls last year (4) in Kansas regarding the discovery of a little baby that its brothers and sisters were carrying around town after they found it buried in the back yard, or KBI having to retrieve one from a septic system that had been thrown in there. To some of you who wrote, there will be only dismay that an investigation had to take place to try to determine the cause of death.

But we all don't think alike do we. Some people think that a woman who has had an unattended birth may need support and help. Some people probably actually think that she can go on with the rest of her life without any haunting feeling about seeing the eyes blinking up at her or the muffled cry coming from that plastic garbage bag.

For those of you who think that I have any anger toward those women, let me tell you now that it is not true. I care deeply about those women and whatever circumstances took them to the place that made them try to hide that traumatic event in their lives. I care about society that seems to think that it is far better for that woman to continue to hide behind drug abuse, alcohol, or other desperate measures to cope.

The bill was not intended to have women implicated for not having hospital births. It did not require women to be interrogated by the police if their baby did not survive. The bill attempted to require that medical personal, including midwives, be allowed to determine the cause of death within a certain amount of time after the birth. For the woman who spoke of loosing twins; it is hard for me to understand that you would not want to know the cause of death, or that you would not confer with a physician after a loss like that.

The bill is in the Revisor's office and I am trying to address the valid concerns about the language. I agree with many that the language is flawed. But I do not agree with those of you who feel that it is ok to kill infants. Nor do I agree with you if you feel that is in the best interest of the mother - whether it be a mother whale or not.

The Representative seems unclear about the purpose of HB 2088:

Some have been compassionate about the purpose of the bill and have realized that finding dogs dragging a 9 lb. baby boy around the neighborhood can have a tramatizing [sic] effect on some people. One person seems horrified about the death of whales, but seems to have little concern for the horrible death suffered by some newborns.

The bill's purpose is to decrease the number of discarded infants by criminalizing unattended deliveries. Its purpose is not to protect the psyche of some of the neighborhood people, or to address the concerns of one person.

The Representative's comprehension also seems to be impaired:

One woman [I assume that would be me] even went so far as to name the number that occurs in the nation on an annual basis and think that it cannot be such a big deal in the state of Kansas if you spread it out.

Two points:

1) The impertinence of me nam[ing] the number! [In my defense, I hadn't realized this statistic was some sort of national secret, to be known, and interpreted only by exalted politicians.]

Seriously now, here's how legislation is supposed to work. You identify a problem [newborns are being abandoned], study the data [how many, where, why, what works, what doesn't, what's been done so far, what are the results, etc.], and then, and only then--after you have a firm grasp of the facts--do you propose legislation aimed at correcting the problem [reducing the number of discarded infants].

The reason I went so far as to name numbers is because, before I'm able evaluate if a solution to a problem works, I need to understand what the problem is. I cannot speak for Rep. Mast, but as far as I'm concerned, I need to know the number of discarded infants, before I can figure out how to reduce it. [The number also comes in handy when it's time to evaluate if my solution is/isn't working.]

2) Rep. Mast claims that because I state the national number of cases of discarder infants, I think that it [the number of cases] cannot be such a big deal in the state of Kansas if you spread it out.

This is what I said:

According to the Department of Health and Human Services' (DHHS) estimate, nationwide in 1997 there were 105 discarded infants. [How many of these cases were in Kansas?] As you are probably aware, Kansas already has a "safe heaven" law (HB 2838) aimed at addressing the problem of discarded infants.

As tragic as each individual case is, given the small number of cases of discarded infants, and the fact that Kansas already has a law aimed at dealing with this problem, why is it necessary to introduce new legislation (HB 2088)?

I've already addressed the reason I mentioned the number of national cases.

I offered no comment about the number of cases in Kansas, since I didn't know what that number was. [How many of these cases were in Kansas?]

I specifically offer my opinion that each and every case where a newborn is discarded is a big deal. [As tragic as each individual case is....]

I stated the fact that 105 cases nationwide = a small number of cases. Based on the available* data, I stand by my statement.

*In 1997 there were 3,880,894 (.pdf) live births and 105 cases of discarded newborns. Interestingly, of the 3,880,894 births, 92.4% were attended by a physician, 7% were attended by a midwife, for a total of 99.4% of births occurring under medical supervision. Of the remaining .07%, or 24,207, 1,800 had an "unspecified" birth attendant.

I questioned the need to introduce new legislation, when legislation is already in place to deal with however many cases, out of the small, 105 nationwide total number of cases, occur in Kansas.

Rep. Mast continues:

My answer to that woman is four. Four deaths reported last year were the result of women who gave birth without medical assistance and discarded the baby (hope that you do not find that term offensive) in such a way as to have the body discovered later. That is four deaths in Kansas. I guess if you compare that number to all of the whales killed it may seem small to some, but to me and to other women who have lost their babies for some reason or another, it seems uncounsciousable [sic].

I would like to thank Rep. Mast for providing the information about the number of cases in Kansas--four. So, now we have a better understanding of the problem. If we use the available data (2003) for the total number of births in Kansas, we have 39,353 live births, and 4 cases of discarded infants (~0.01%).

I would also like to caution Rep. Mast that this comment (emphasis mine) ...and discarded the baby (hope that you do not find that term offensive)..., leads one to believe she is not familiar with the most basic terms one needs to know in order to draft a bill like HB 2088. If true, this is a serious dereliction of duty.

According to the Department of Health and Human Services (DHHS, 2001) the following terms are used (emphasis mine):

Boarder babies are infants under the age of 12 months who remain in the hospital past the date of medical discharge. Boarder babies may eventually be claimed by their parents and/or be placed in alternative care.

Abandoned infants are newborn children who are not medically cleared for hospital discharge, but who are unlikely to leave the hospital in the custody of their biological parents.

Discarded infants are newborns who have been abandoned in public places, other than hospitals, without care or supervision.

The prevalence, characteristics, financial and social implications, as well as the best way to combat the problems of each group are distinct. If a bill intended to decrease the number of discarded infants (those abandoned in public places) only covers hospital births, that bill is ineffective.

One more thing. With all due respect to Rep. Mast, enough with the whales! We are discussing discarded infants and criminalizing unattended deliveries, not whales. When it comes to public policy, the magnitude of the number of discarded infants in Kansas shouldn't be based on a guess (that number [4]...to me...it seems unconscio[nably high]), or an interspecies comparison. It should be based on facts, e.g., the number of births in Kansas.

Moving on, we have this:

Well, I probably won't change any of your minds by telling you about the testimony of law enforcement who responded to 911 calls last year (4) in Kansas regarding the discovery of a little baby that its brothers and sisters were carrying around town after they found it buried in the back yard, or KBI having to retrieve one from a septic system that had been thrown in there. To some of you who wrote, there will be only dismay that an investigation had to take place to try to determine the cause of death.

The way to change people's minds is to show how HB 2088 will be effective in reducing the number of discarded infants. It is troubling that an elected official isn't aware that personal testimony, even if it's from law enforcement, and even if it's about an extraordinary case, cannot substitute for hard data. Law enforcement testimony will *not* cause an ineffective law to reduce the number of discarded infants. Neither will gratuitous digs about what the reaction of some people might be when finding out that an investigation had to take place to try to determine the cause of death.

And this:

But we all don't think alike do we. Some people think that a woman who has had an unattended birth may need support and help. Some people probably actually think that she can go on with the rest of her life without any haunting feeling about seeing the eyes blinking up at her or the muffled cry coming from that plastic garbage bag.

Rep. Mast's suppositions in this paragraph may, or may not be correct. After all, some people think that we've been visited by extraterrestrials. The question is: what is the relevance of her speculation to the topic at hand? The intent of HB 2088 is to decrease the number of discarded infants, not to offer support and help to women who have an unattended birth, and/or to force these women to undergo psychiatric counseling.

Next, we have:

For those of you who think that I have any anger toward those women, let me tell you now that it is not true. I care deeply about those women and whatever circumstances took them to the place that made them try to hide that traumatic event in their lives. I care about society that seems to think that it is far better for that woman to continue to hide behind drug abuse, alcohol, or other desperate measures to cope.

I mentioned earlier that it is crucial to be familiar with the basic facts in order to be able to propose an effective bill. In this paragraph Rep. Mast provides us with a clear example why:

I care about society that seems to think that it is far better for that woman to continue to hide behind drug abuse, alcohol, or other desperate measures to cope.

Except, according to the Department of Health and Human Services [under Characteristics]:

Substance abuse continues to be the most common factor in cases of abandoned infants and babies boarding in hospitals.

...

Available literature indicates that individuals who commit acts of neonaticide and public abandonment are predominantly young, unmarried, physically healthy women who are pregnant for the first time and not addicted to substances (Kaye, Borenstein, & Donnelly, 1990; Oberman, 1996).

Once again, abandoned infants and boarder babies, and discarded infants are not one and the same thing.

If you care deeply about those women and whatever circumstances took them to th[at] place, you ought to, at a minimum, make an effort to have a basic understanding of what those circumstances might be.

Moving on, we have Rep. Mast making a direct statement about the intent of HB 2088. Not about what the text of the proposed bill actually says, mind you, but what Rep. Mast intended it to [not] say:

The bill was not intended to have women implicated for not having hospital births. It did not require women to be interrogated by the police if their baby did not survive. The bill attempted to require that medical personal, including midwives, be allowed to determine the cause of death within a certain amount of time after the birth. For the woman who spoke of loosing twins; it is hard for me to understand that you would not want to know the cause of death, or that you would not confer with a physician after a loss like that.

Again with divining intent! Here's a suggestion: When discussing a bill's intent, always use the bill's actual text. If you are a politician, know that it makes no difference what you say the intent was. The only thing that matters, especially when the affected citizens are hauled into court and charged with a felony, is what the text of the bill says.

We've already dissected the bill, so briefly: HB 2088 specifically mandates contacting law enforcement.

Unless a legal requirement to call the police can be construed as placing a call to have law enforcement act as a doula or pizza delivery service, the assertion that the bill did not require women to be interrogated by the police is disingenuous. And so is [t]he bill attempted to require that medical personal, including midwives, be allowed to determine the cause of death within a certain amount of time after the birth. Among other things, the bill specifically, and repeatedly demands action immediately after ... birth....

Apropos the woman who spoke of loosing twins; it is hard to understand that Rep. Mast would be so presumptuous as to assume that a woman, who just moments before lost her pregnancy, would not want to know the cause of death, or that the Representative would want to force the woman, under threat of becoming a felon for noncompliance, to confer with a physician immediately after a loss like that.

Finally:

The bill is in the Revisor's office and I am trying to address the valid concerns about the language. I agree with many that the language is flawed. But I do not agree with those of you who feel that it is ok to kill infants. Nor do I agree with you if you feel that is in the best interest of the mother - whether it be a mother whale or not.

After such a lengthy reply, heavy on speculation, dubious accusations [who says infanticide is ok?], and mentions of whales, and light on data, facts, and bill particulars, we have a nonspecific admission that the bill's language is flawed.

Unfortunately, Rep. Mast does not deem it necessary to share with us what the valid concerns about the language might be. So, after reading Rep. Mast's reply I'm still not edified. Actually, more than that; I'm even more troubled now than I was before I read her muddled e-mail.

Rep. Mast doesn't appear to have a grasp of the fundamentals: how to establish, as opposed to guess, the magnitude of the number of cases of discarded infants in Kansas; the difference between abandoned infants, boarder babies, and discarded infants; the concept of anecdotal evidence; the characteristics of women who discard their infants; and last, but not least, the actual text of the HB 2088.