The Catholic Thing
Waiting for the Gosnell Jury – and a Wakeup Call to the House Print E-mail
By Hadley Arkes   
Tuesday, 07 May 2013

By the time this column appears on Tuesday, the jury might have delivered a verdict in the case of Dr. Kermit Gosnell in Philadelphia.  The readers who follow The Catholic Thing are likely to be in that segment of the public quite aware by now of the story of Dr. Gosnell. 

That story includes the grisly details of babies born alive in late abortions, with Gosnell or his aides cutting the necks of some of the babies, severing their spinal cords, and securing their deaths.   There is more to the story, of course: aides pleading to third-degree murder, along with a filthy operating room, left uninspected in a policy of benign neglect by the pro-choice governors of Pennsylvania.

Much has been made of the record of the mainstream media in screening any reporting of the story and the trial.  But I posted a piece last week with the Weekly Standard, pointing out the deep irony:  the screening that has taken place among the conservative media, including the Hannitys and Krauthammers, and even pro-life congressmen. 

For strangely omitted from their own accounts is that we passed a federal statute ten years ago that sought to protect the child who survived an abortion, the so-called Born-Alive Infants’ Protection Act.  

That bill sprang from a proposal I’d written for the debating kit of George H.W. Bush, and the story of moving that bill through Congress is told, in part, in my book Natural Rights & the Right to Choose.  I led the testimony on the bill in the House Committee on the Judiciary, and I was present when the second President Bush signed it into law. 

But the managers of the bill dropped the penalties spelled out for the failure to render care to a child surviving an abortion. The penalties had been dropped for the sake of averting a veto from then-President Clinton. The bill was offered as a pure “teaching” bill. Its purpose was to plant a critical premise in the law – namely, that even the child marked for abortion may have a claim to the protection of the law. 

It would also be the first congressional act marking the limits to the “right to abortion.” Whatever that right is, it cannot be the right to kill a child who survived the abortion.

Of course, we would be raising the question of what was different about that same child five minutes, five days, five months earlier. The other side knew that if we planted this premise, we could unravel their whole position – if we had a class of pro-life political leaders ready to push the argument forward.

The remarkable thing missed on the conservative side now is that the Gosnell case offers the most dramatic case for holding hearings anew on the Born-Alive Act for the sake of restoring the penalties that had been dropped.  We thought at the time that there were only a handful of these cases in the country.  But the word started coming in from nurses throughout the country that the situation was far more widespread that we had imagined. 

The more familiar practice is that of the “live-birth” abortion:  delivering the child alive and then putting it in a Refuse Room to die.  Cary Pigman, a legislator in Florida stated recently that, as of 2010, there were about 1,270 of those deaths “reported” – and he put the accent on “reported.”

After my piece appeared, I heard that movements were afoot to launch those hearings in the House.  But the pro-life groups seem not to have been paying attention, and they seem to be letting this strategic moment pass them by.  For they have not weighed in to call for those hearings, assemble the witnesses, and put out the call to their members. 

In the meantime, an account even more discouraging was offered to me this week by a friend who had been working behind the scenes in the House and recently left in a rather demoralized state.  He recalled that there were two notable pro-life bills on the table last year: one to bar the killing of babies in the womb because they happened to be female; and the other to bar abortions when the fetus can feel pain (much earlier than even the sponsors allowed). 

The Republican leadership insisted that the bills be brought under a “suspension” of the rules, a procedure restricting debate and requiring a two-thirds vote to pass. It was, in another words, a planned failure. In the staffer’s account, the leadership was seeking to avoid giving fodder to the Obama campaign with its claim that the Republicans were waging a “war on women.” 

The genius of the Romney campaign had carried over to the Republican leadership in the House.  It was apparently beyond their wit – or their nerve – to ask how it could be a war on women when we enjoin women not to kill their own babies, including their daughters. 

My friend thought that what the leaders in the House needed was a shot of “testosterone.”  But the problem clearly ran deeper than that. It was the story of a political leadership, easily spooked by the slogans and calumnies of their enemies, because they lacked the confidence that they had, at their command, compelling reasons to explain or defend their own position.

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. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
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Comments (7)Add Comment
written by Jacob, May 07, 2013
When you live in a country full of insane murderers who call cutting a child's spinal cord "healthcare", nothing makes sense.

I tend to think the worst enemies are the Hannitys and Krauthammers. They make abortion look sane by suggesting it's another topic where they're the adults and social conservatives are dangerous religious children.

In the end, God will ask them the same as he asks Barack Obama, why they let the weakest among them be murdered without making a peep because they were afraid of being called nutjobs.
written by Manfred, May 07, 2013
Thank you for this timely column, Dr. Arkes. May I comment? If I understand the Gosnell story correctly, all these crimes were committed in the area of the abortuary where black "patients" were treated. The area where whites were treated was clean and orderly. When was the last time we read a story of the rampant alcoholism and fetal alcohol syndrome among among American Indians? We don't for a simple reason-the situation has been deemed hopeless. They cannot adapt to modern ways, they cannot manage their lives.That is the reason they remain on reservations. Many urban areas serve as "reservations" for other Americans. As police officials and FBI people have explained to me-it may be cheaper to have abortion than to build and maintain prisons. It was Justice Ginsburg who replied when she was asked her reaction to Roe v. Wade- I thought the purpose was to "limit the number of certain people". With an admitted out of wedlock black birthrate of 70% (probably higher) the governments, state and federal, no longer can absorb these welfare costs. These governments therefore resort to the "sword" of abortion. It is pragmatic and immoral, but that is the course they chose. The white out of wedlock rate is climbing as well and abortion is relied upon as a solution there as well.
written by Michael Paterson-Seymour, May 07, 2013
David Hume (a nephew of the philosopher and leading authority on the criminal law) says this, “A child, though it has become quick is regarded as pars viscerum matris and not a separate being and it cannot with any certainty be said whether it would have been born alive or not. The destruction of an unborn infant therefore, though an atrocious crime and severely punishable under a different denomination is not murder. But if breathing once has begun, it is immaterial how frail may be the tenure by which life is held ... A child which is only a minute old, or an old man on the brink of the grave are equally entitled to have their lives protected by the pains of murder; for it belongs to the Supreme Disposer of events, not any human hand to determine the duration of life. Hume 1:186”
written by Grump, May 07, 2013
Who can stomach a so-called leader who hypocritically talks of "saving lives" by enacting meaningless gun control laws aimed at disarming citizens and eroding constitutionally-granted rights while at the same time promoting the murder of millions of babies and ordering the deaths of hundreds of innocents in drone attacks?

Of course, Obama alone is not to blame for this mass slaughter despite his high-profile schmoozing with Planned Parenthood, the taxpayer-funded execution squad that carries out these horrendous crimes in the name of "reproductive rights."

Professor Arkes is right is suggesting that the Republicans (in name only) have lacked the courage to stand for life and have ceded the high moral ground on social issues such as abortion, "same-sex marriage" and government-mandated birth control.

Mother Teresa said: "The greatest destroyer of peace is abortion because if a mother can kill her own child, what is left for me to kill you and you to kill me? There is nothing between."

written by Mr. Levy, May 07, 2013
(To Mr. Paterson-Seymour: excellent quotation from David Hume.)

As Prof. Arkes shows, and as is plain from the vastly differing treatment given by Republican leaders to Rep. Akin's pro-life position and Sen. Portman's anti-marriage position, many have pretended to be our friends so as to perpetuate their own power. More and more, as "respectable" opinion seems to change, they make their duplicity known. They feel no shame in having deceived their supporters, in having mouthed the words but shunned the fight, and they make no apology for it. Instead, they quickly and vehemently condemn conservatives at the first opportunity while just as quickly and enthusiastically embracing "moderates" who have "evolved" toward leftism.

Boehner, Cantor, Priebus, and others of their stripe must be overthrown. Expecting them to act like conservatives is, at this point, willful self-delusion. Removing them from power will not be easy - it will require the election of many more conservatives to Congress, and repeated attempts to take control of the RNC. It is, however, the only possible course of action.
written by Dan Deeny, May 07, 2013
Excellent article. But I think Hannity and Krauthammer should respond!
written by Dan Kennedy, May 07, 2013
You made the exact point that needed to be made. Now we in the pro-life movement must push the conversation and political ball forward.

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