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The Bioethics Gang: Testing the Limits Again Print E-mail
By Hadley Arkes   
Tuesday, 13 March 2012

Our late friend Henry Hyde at once lovable and savvy, was willing to go along with us out of affection, but he really couldn’t understand what we would gain by enacting a law so very modest: a law that would protect the child who survived an abortion. That was the bill that came to be known as the Born-Alive Infants’ Protection Act (2002). Henry and some other pro-lifers were surprised on the day the hearings opened when the National Abortion Rights Action League actually came out in opposition to this move to protect a child born alive.

The melancholy truth revealed at that moment was that the opposition understood our bill better than many of our friends, for they understood the principle that lay at the heart of the thing. They understood that, if they conceded that simple premise to us, we would be able to raise the kinds of questions that could unravel their position: What was so different about that child five minutes earlier – but then five hours, five weeks, five months before it was born? 

The hard fact was that the partisans of abortion could not really explain the grounds on which they could actually support such a bill. For none of the main arguments for abortion would be affected or negated by the fact that an unwanted child had now been born.  

      Rep. Henry Hyde 

At the urging of sober counsel, the radical feminists held back from their vocal opposition and did not put the Democrats in the embarrassing position of voting against this bill to protect a child born alive. But now the question is being tested anew as to whether it is really embarrassing any longer for the party of the Left to come out openly for the killing of children born alive.  

Apparently the editors of a supposedly reputable print and online periodical, the Journal of Medical Ethics, thought it was a perfectly plausible “academic” argument for two professors to make that pitch openly. Alberto Giubilini of the University of Milan and Francesca Minerva of the University of Melbourne hoisted the flag in a piece called “After-birth abortion: why should the baby live?” 

Just why controversy should flare over this article may be a puzzle, since the argument was quite straightforward, drawn from the familiar logic of the argument for abortion: If a child in the womb is afflicted with conditions such as Down syndrome or other “deformities,” conditions that the authors think would justify aborting the child in the womb, why should it make a difference that the child has been born? The child may still not have a “life worth living.”

And besides that, the child could strain the health – that is, the mental health – of the parents, who come to the judgment that it is just too much for them and their families to bear. As the writers quickly acknowledged, the same reasoning could apply to babies quite healthy if they would strain the mental health of the mother.  

Well why not put the baby, through adoption, in the hands of people who are willing and eager to nurture the child?   Answer: it may be easier for a woman to kill an embryo or a born child rather than give away what is distinctly hers. In other words, the right to an abortion is the right to an “effective abortion” or a dead child. That was the critical premise that the Born-Alive Act meant to reject.

       Sen. Rick Santorum

But with the prospect of Obamacare the horizon is extended: The choice may not fall solely to the pregnant woman as to whether the child is an “unbearable burden.” That decision may now come within the authority of the “society as a whole, when the state economically provides for [the birth and care of children].” The State, rationing funds in medicine, may decide that it will not fund post-natal care for certain children even when the parents may want the child.  But why call these killings “after-birth abortions.” Why not homicides? The authors reply that these are not yet real persons who are killed, for they are aware of no life plan, no “aims” yet of their own. Neither of course are young chidren, and if the test is an awareness of “aims” in life, there may be many youngsters in college who are candidates for an “after-abortion.”

It may be the mark of a moral sensibility not entirely extinguished that the news of this article caused an uproar, with death threats against the authors. The editors thought the threats were extreme, and why was that?: because death would be visited on innocent human beings? Because someone actually threatened to do, in two cases, what the writers had been willing to license and justify for large numbers of innocent beings?

The man who introduced the Born-Alive Act in the Senate was Rick Santorum. For strategic reasons he has not said much about that Act during his campaigning for president. The accent has been on Obamacare, as a policy that will alter the cast of our lives and deepen the hold of the party of abortion. If Santorum does get the Republican nomination, he will be running against the only national Democrat who opposed the Born-Alive Act. And if the public reaction over the last two weeks is a test, there is a public need to be served and a political gain to be made in making the argument yet again.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (5)Add Comment
written by Gian, March 13, 2012
"the only national Democrat who opposed the Born-Alive Act."

And why was this fact ignored by Conservatives and Pro-lifes in 2008?

Why did they waste time and energy and sow confusion on Torture?
written by Sue, March 13, 2012
True conservatives saw through this faithful-citizenship fogging of the electorate, abetted by the Republicrats who are united under Soros with the Democrats. Look for more of this to come in 2012, even under the aegis of Santorum. Like Bush, he poses as a prolife conservative, but will duck under for statism when "the team" calls for it.

This article tries to make the BAIPA into a kind of hallowed legislation, but it should be acknowledged that banning infanticide is actually pretty low-hanging fruit. Ironic that Hyde, with his rape-incest exceptions, is being critiqued for opposing the incrementalism of BAIPA.

This year, the 40th under Roe v. Wade, perhaps we can finally try staring abortion right in the eye like we finally did slavery? No more half-measures, if abortion is murder, so be it. Instead of coming back to do the March for Life every year just like "Groundhog Day", then we might birth a "Gestation Proclamation" that finally squared us with the Declaration of Independence.
written by Jim K, March 13, 2012
Great analysis. This is another hole in the pro-abortion's denial of life in the womb. This is also why Rick Santorum would be a much stronger candidate against Obama than Romney. Romney has no social platform to stand on.
written by Matt, March 13, 2012
Alberto Giubilini presenting at the St. Cross Seminar at Oxford during January 2012.

"The question "why is euthanasia morally problematic?" is twofold... I will argue that a) "euthanasia" is defined by the intention to bring about a patient's death, rather than by its being an active killing, and b) the distinction between what is intentional and what is not does not represent, by itself, the morally problematic reason against euthanasia. Finally, I will clarify this expression, "by itself", by indicating the circumstances in which the intention to bring about a patient's death can become morally problematic. Such clarification will allow me to put forward the thesis that there is no sound moral reason against euthanasia."

written by Graham Combs, March 13, 2012
In a familiar law school hypthetical, the pregnant wife has fallen into a coma. Included in the fact pattern was the methodical preparations the couple made for the birth, including a nursery. I said that the facts at the very least argued that terminating her pregnancy was something the now silent woman might not want. While the instructor stood by, her arms folded and her mouth closed, my classmates literally shouted me down: "That's just your opinon!" In that law school and I suspect in 99 percent of others, the default position is always abortion. In this case, although I was not a Catholic at the time, in the small class I knew there was one Catholic and one evangelical. Both said nothing. I simply cannot wrap my head around the president's world view. What do you teach your two daughters? How do you sleep at night? And why do you call yourself a Christian? To read these things may be for me a potential occasion of sin. I despair for this country.

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