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The Born-Alive Act and the Undoing of Obama Print E-mail
By Hadley Arkes   
Monday, 18 August 2008

In an interview with the Rev. Rick Warren, Barack Obama was asked about abortion, and he remarked that it was a serious, vexing “moral” question. On the matter of when human life began, he said, that “whether you’re looking at it from a theological perspective or a scientific perspective, answering that question with specificity … is above my pay grade.” In the hands of Obama the meaning of “moral” is recast: What does it mean to say that this is a “moral” question and yet it must depend on judgments that are wholly subjective and personal, and which cannot be judged as true or false? For Obama, a “moral” question is one for which reason can supply no judgment, and the judgment may turn finally turn on nothing more than self-interest.

The question of global warming is a tangled, scientific question, generating serious controversy, and yet Obama has never confessed any disability that prevents him from consulting the testimony, the presentations of evidence, and trying to form a judgment. What prevents him then from consulting the textbooks of embryology or obstetric gynecology, or asking anyone who knows, in an effort to inform his judgment? The textbooks will tell him of course that human life begins with the merger of male and female gametes to form a zygote, a unique being with a genetic definition quite different from that of either parent. If that is too much to absorb, he may retreat to the point readily understood even by people without a college education: A pregnancy test is a sufficient and telling sign that new life is present and growing. We know now that this life does not undergo any change of species from its beginning to its end. Conceived by humans, it cannot be anything other than a human life. And if there was nothing there alive and growing, an abortion would no more be indicated or relevant than a tonsillectomy.

Now if that is truly above Mr. Obama’s “pay grade,” then the presidency must surely be beyond his competence and his pay grade.

As I have mentioned already in these columns, not a single Democrat in Congress voted against our Born-Alive Infants’ Protection Act (2002), a bill that sought simply to protect the life of a child who survived an abortion. But Barack Obama actually led the opposition to the same bill as it was offered in the legislature in Illinois. Obama has claimed now that he voted against the bill in Illinois because it lacked a clarifying amendment that had been voted for the federal bill: “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’ … “

But as it turns out, this amendment had indeed been added to the bill in Illinois in March 2003, in a Senate committee chaired by Obama. Nevertheless, Obama voted finally to kill that bill in committee. And yet why should this be a surprise? Doug Johnson, the legislative director of the National Right to Life Committee rightly observed that the amendment had never made a difference to the substance of the bill. For the very point of the bill was to confer protection on the child when it was no longer in the womb, when the child could no longer encumber any “interests” of the mother. The bill sought to establish the point that even a child marked for abortion has, at some time, a claim to the protection of the law. And if that is the case, what was the difference between the child out of the womb and the child several minutes, several weeks, several months earlier?

The National Abortion Rights Action League saw at once the principle that lay at the heart of the bill, which is why they opposed it when it was introduced in July 2000. Barack Obama saw precisely what those activists saw. He voted against the Born-Alive Act, as he said, because he thought it would threaten, down the line, the right to abortion. But there lies the depth of his radicalism. For the sake of protecting that right to abortion, for any reason, he was willing to withdraw even the protection usually offered by the law for children born alive. The one exception would be: the children marked for abortion. For Obama, the right to abortion is nothing less than the right to an “effective abortion” or a dead child. For all of his nimbleness and his Ivy League bearing, that is the unlovely truth of his position; the truth that the media cannot quite grasp or report.

The Born-Alive Act was truly “the most modest first step” of all in legislating on abortion. Its purpose was to plant premises in the law and to break out news that the public would find jolting. A new group has formed now under the banner of Bornalivetruth.org with the purpose of bringing out to the public what Barack Obama has revealed about himself as he has confronted that bill. There is something to be savored in the notion that this measure, so modest, meant simply to teach, may turn out to be a critical force this year in the unraveling of Obama.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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written by Mindy Minkus, November 05, 2008
Hurrah for this paper!

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