An Anniversary with Lingering Hopes Print
By Hadley Arkes   
Tuesday, 31 July 2012

In a season of anniversaries, another is coming up soon: Ten years ago, on August 4, there was a gathering in Pittsburgh to see President George W. Bush sign into law the Born-Alive Infants’ Protection Act. 

That bill had been tagged “the most modest first step” of all on abortion, for it sought to protect a child who survived an abortion. Present with Mr. Bush was Sen. Rick Santorum, who had guided that bill through the Senate, and Rep. Steve Chabot of Ohio, who had managed the bill in the House. 

I was invited to the signing because this bill had been a signature project of mine ever since I had drafted an argument for it for the debating kit of first George Bush. But present also was the Bishop of Pittsburgh, the Most Rev. Donald W. Wuerl; Gianna Nessen, an engaging young woman who had survived a saline abortion; Dr. Watson Bowes, our expert witness on maternal care; and Jill Stanek, the brave nurse who had blown the whistle on the so-called “live-birth abortions” performed at the Christ Hospital in Oak Lawn, Illinois: a baby was delivered, and then simply put in the refuse room of hospital and left to die.   

We had thought (mistakenly) that there were only a handful of these cases. The bill was mainly a “teaching bill,” designed to plant premises in the law – namely, that even the child marked for abortion has a claim to the protection of the law. We never concealed our intention to keep pressing the question, to ask just what was different about that same child five minutes, five days, five months earlier.  

Give us that premise – that this child is a person who comes within the protection of the law – and we could unravel the whole “pro-choice” position. But of course the other side saw that point at once, and on the day the hearings opened in the House, some of our friends were actually astonished when the National Abortion Rights Action League (NARAL) actually came out in opposition to this bill that would protect a child born alive. 

But what that marked was the fact that the opposition understood this modest measure even better than some of our own allies, because they saw the principle that lay at the heart of the thing.

We thought, as I said, that we were dealing with a handful of cases. But as Jill Stanek did interviews on the radio, nurses began calling in from different parts of the country to report that these “procedures” had been going in their hospitals for a long while. Jill Stanek thought in fact that this mode of abortion could become the favored mode, for it was also the safest: no instruments were introduced into the body of the mother. No danger of infection from parts of the child left behind.

As we were gathered for the signing of the bill, President Bush remarked that it was a “first step in the changing of the culture.” If so, it was hard to resist the thought he had precious little to do with it.


           President Bush, center, with the team behind the Born-Alive Infants’ Protection Act
      (Hadley Arkes is third from the left)

I thought that this would have been the easiest bill for him to talk about: He could have gone into places like Connecticut and New Jersey, where the Republicans were fiercely pro-abortion and say, “surely we can agree on this simplest of all steps.” But Mr. Bush never even endorsed the bill.  

For the sake of averting the resistance, first of President Clinton and later of a Democratic Senate, the managers of the bill removed the penalties for failing to provide care to a newborn who had survived an abortion. As the line went, the bill was mainly for “teaching.” 

Nevertheless, we had now a statute. And for that reason alone, any clinic or hospital that houses a “live-birth abortion” could lose its tax exemption, because this procedure is clearly “not in accord with public policy.”   

More than that, the same hospital or clinic could lose federal funds, and virtually all hospitals depend in some way on federal funds. Under the Emergency Medical Treatment and Active Labor Act (EMTALA) a hospital is obliged to provide emergency care to any person arriving at the hospital in need of care. 

It took the art and persistence of two of my former students, Eric Treene (at the Department of Justice) and Paula Stannard, deputy counsel at Health and Human Services (HHS) to persuade people at HHS that any child surviving an abortion in a hospital was indeed now a “person” (or “patient”) under the care of that hospital.

The anniversary coming up is a melancholy marker. For this simplest of all Acts may be the most potent lever that could be used now by the federal government to push hospitals and clinics out of the business of abortion, and yet the Bush Administration made only a half-hearted attempt to enforce it. 

Adding the penalties to the Act could provide, for Mitt Romney, the tool that George Bush left unused: a bill that is disarming in its moderation, even while it puts the issue of abortion before the public in a stark way.  

And at the same time it brings home news that people may still find jolting: that the only national Democrat who opposed bills to protect children who survived abortions is the man who now sits in the White House.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. His lectures, from The Modern Scholar, First Principles & Natural Law: The Foundations of Political Philosophy, Part I are now available on audio.
 
 
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