The Catholic Thing
Restoring the Penalties to the Born-Alive Act Print E-mail
By Hadley Arkes   
Tuesday, 26 August 2014

In my last column, I took up the problem of many friends who have become exasperated by our politics. They have been lured by the notion of “changing the culture” as an alternative to politics. I sought to recall the classic understanding of why the law, through its logic, inevitably engages in moral teaching. And so my pitch was for the need to “put something on the table” – to keep coming forth with bills proposed seriously for enactment into law, the kinds of proposals that have a better chance of compelling people to face the question and come to a judgment.

These kinds of legislative moves may also have the critical effect of keeping the issues of abortion and marriage from being absorbed into a domain ruled solely by judges. A reader wrote in to ask whether I was ready myself to “put something on the table.”  As it turns out, I do have two measures I’m pushing, one on abortion and the other on marriage. Thanks to our friends in the Judiciary Committee of the House of Representatives, we have the chance to put both of them on the table. We may even be able to enact them next year if there is a shift in control of the Senate. I’ll report on the proposal on abortion here, the move on marriage next time.

Our readers who were with some of us in the days of CRISIS magazine know that I had been making the case, for years, for the “most modest first step” on abortion, the proposal to protect the child who survived an abortion. That proposal became the Born-Alive Infants’ Protection Act. I was given the privilege of leading the testimony on the bill in the House, and I was invited in to see George W. Bush sign the bill into law in August 2002.

When the bill was first moved, President Clinton was still in office, and for the sake of averting a veto from Bill Clinton, the managers stripped away the penalties from the bill. It was converted into a pure “teaching bill,” planting premises in the law. There was the lever of removing federal funds from all hospitals and clinics that withheld medical care from a child who survived an abortion. Still, the want of penalties made the bill almost impossible to enforce.

But now the killings done by Kermit Gosnell in Philadelphia have drawn a new attention to the reality of babies being killed when they come out alive after abortions. Jill Stanek was the brave nurse in Chicago who blew the whistle on the “live-birth abortion” practiced at the Christ Hospital in Oak Lawn, Illinois:  a baby was delivered and placed in the Refuse Room of the hospital to die. The safest abortion of all;  no instruments placed in the body of the pregnant woman, no body parts left behind to cause infections.

      At the signing of the Born-Alive Infants’ Protection Act:
     Hadley Arkes third from left, Jill Stanek, third from right

Jill joined me in testifying for our bill, and when she did interviews on the radio in Chicago, nurses were calling in from other parts of the country to say that they had been doing those “procedures” for years in their hospitals. It turned out that this kind of killing was far more frequent, in far higher volume, than even we had suspected. The case of Gosnell in Philadelphia bore out that truth with a dramatic force.

And so what we propose to do with the Judiciary Committee is another modest move, which promises a vast yield. We propose simply to hold hearings again to restore the penalties that had been stripped from that original bill. This offers the occasion for nurses in the country to come in to tell their stories.

The Born-Alive Act passed the Senate on a voice vote, with no dissenting Democratic vote. In the House, only thirteen Democrats (and two Republicans) voted against this bill. And so we can earnestly put the question to the Democrats. Virtually all of you voted to condemn and forbid this act of killing as deeply wrongful. Well, how serious do you think it is?  Would it deserve a penalty as serious, say, as the penalty for a moving violation in traffic? Tell us.

That is a question that the pro-abortion party should be compelled to face. At the same time, there is no need to add to the criminal law of the federal government. It is enough to provide stiff fines for doctors, and the threat of removing federal funds. And that may be enough to stir the local authorities to prosecute for homicide.

In our own time, the Republicans have become the pro-life party in our politics and yet the presidential candidates have been counseled to avoid speaking more than quick phrases on abortion. If our bill is put on the table, it would be in place when a candidate comes on in 2016. The candidate can simply say, “This is all we want to talk about this year – to establish the penalties for an horrific act that even the Democrats voted to forbid.” 

We are not likely to see the media trying to play on this issue to drive a wedge among the Republicans. And at the time, that simple move stands as a reminder that the most visible Democrat who opposed the bills to protect the child born alive is the man now sitting in the White House.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. 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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Comments (8)Add Comment
written by Myshkin, August 25, 2014
Great proposal, Dr. Arkes! I'll be praying for it to pass into law.
written by Michael Paterson-Seymour, August 26, 2014
I can see the bill being opposed, for it is, in fact, impossible to draw a logical distinction between infanticide and abortion.

In his Rethinking Life and Death, Princeton bioethicist, Peter Singer famously argued “[The argument that a fetus is not alive] is a resort to a convenient fiction that turns an evidently living being into one that legally is not alive. Instead of accepting such fictions, we should recognise that the fact that a being is human, and alive, does not in itself tell us whether it is wrong to take that being's life” and goes on to justify both abortion and infanticide.

In 2012 a paper in the Journal of Medical Ethics, “After-birth abortion: why should the baby live?” by Alberto Giubilini and Francesca Minerva, expressed similar views.

I do not see how those who support abortion can consistently reject Singer's reasoning.
written by Tony, August 26, 2014
Legal and cultural chess: brilliant. The Party of Abortion may be logically committed to infanticide, but not emotionally or politically; the stench is still too strong.
written by Seanachie, August 26, 2014
Good luck, Hadley. In addition to "stiff fines" and forfeiture of federal funding, why not also license forfeiture and incarceration. Gosnell reportedly is a mass murderer...what is the appropriate deterrent and retributive penalty for a mass murderer?
written by Robert Hill, August 26, 2014
The law is a teacher, and the "students" do notice when there is no consequence for ignoring it. God willing, the increasingly "progressive" Republicans (bathing in the mental manure that our "culture" has become of late) won't see this as some sort of "third rail."
written by Hadley Arkes, August 26, 2014
Michael Paterson-Seymour touches of the course the point of tension that has ever been in this bill for the Democrats or the party of abortion. The know they can’t concede the human standing of that child at the point of birth without opening themselves to that question of, What was the difference, in the same child, five minutes earlier, but then five hours, five days, five weeks, five months earlier. Nothing they bring forth to justify the killing of the child in the womb would not carry over to the killing of the child who survives. The Democrats voted for this bill only to avoid embarrassment, for in truth they had no ground of opposition to the argument that the “right to abortion” meant the right to an “effective abortion” or a dead child.

It was a matter of no small astonishment to our own allies that on the day hearings opened on that bill, the National Organization for Women actually came out in opposition to that bill to protect a child born alive, surviving an abortion. Our allies, including Henry Hyde, had trouble seeing why it was worth our while to come forth with a measure so modest. They really couldn’t believe that NOW would do such a thing as oppose the rescue or protection of a born child. But the truth revealed here was that our adversaries understood our bill better than our own friends, for they saw the principle that lay at the heart of the thing.

With this bill we offer the easiest thing for a presidential candidate to talk about—a measure quite simple, which draws the support even of people who call themselves pro-choice, and makes the media reluctant to raise the question in the hope that the Republicans will be embarrassed and run away. We have other issues on the table for which many of us have worked—the bill to bar abortions at 20 weeks, or to bar abortions for reasons of sex-selection. But the Democrats will try to cast up clouds of doubt on the constitutionality of that bill to protect a child at 20 weeks, before the point of viability. And yet, with the bill simply to protect the child born alive they could not retreat to the obfuscation and fog of those claims. For the first time we have an issue that a Republican candidate could use to embarrass the Democrats—to ask why they are wracked in disagreement, why they are so angry about voting for a bill the public massively favors. Now all we need is a Republican candidate with that confidence to play this game.
written by Mr. Levy, August 26, 2014
Very noble, Prof. Arkes, and very shrewd.
written by Peter Shafton, August 27, 2014
A great article from Prof. Arkes; one that opens our eyes to the ghastly fact that most politicans today appear to have sold their souls to Satan, for the 'privilege' of holding their political position. The slaughter of innocent human babies mean absolutely nothing to them, or to the countless co-conspirators who unfortunately do form part of Satan's murderous team.
We pray to God that more eyes would be opened and more hearts turned.
And may God bless Prof. Arkes, and his great work.

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