Waiting for the Gosnell Jury – and a Wakeup Call to the House Print
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.
 
 
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

 

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