The Audacity of Deceit

It is such a “classic” piece of politics, so fitting the caricature of politics as a game unburdened with scruples, that it is scarcely believable: a candidate caught in the most telling lie, sees that the only way out for him is to raise the decibel level and condemn, as liars, the people who had revealed the truth about him. But such is the art of Barack Obama. As ever, the move requires no small measure of brazenness if it would succeed. And yet to that supply of chutzpah ready to be summoned as needed, Obama has added a clever new twist, as he would say: The story told about me is so jolting, so shocking, that it is just not plausible. For how would you believe that I – constituted as I am – could do such a thing?

In this case, the thing was: insisting on withholding medical care from a child who survived an abortion. This has been the ongoing story of Barack Obama caught in the snare of his own making with the Born-Alive Infants Protection Act in Illinois. Alan Colmes, of Hannity & Colmes, put the question to Gianna Jessen, a young woman of 31, who had survived a prostaglandin abortion: Do you earnestly think that Barack Obama is in favor of infanticide? She responded simply, “What would you call it, Alan?” Barack Obama had voted four times against the Born-Alive Act in Illinois, and killed it in committee.

Colmes came back then with the argument in reserve: There was a law in Illinois that had mandated medical care for newborns, including newborns who had survived abortions. Obama, he said, assumed that all newborns were protected. Gianna could not speak to the law or to that statute in Illinois. That left Alan Colmes free to end the interview by observing in the most affable way that they just had different views about the facts of the case.

With that balm spread over the interview, Obama’s story survived the evening as plausible. The Hannity & Colmes program had become the main, or even the sole, outlet on television in breaking out the news about Obama and the Born-Alive Infant’s Protection Act. My own hunch is that the people in the Obama camp were quite attentive to the way that story played in the interview with Gianna Jessen. Their story had survived as plausible, and so they now doubled down: There were new ads, taking things to a new level – not merely of denial, but outrage. How dare John McCain and his allies accuse Barack Obama of favoring infanticide? Alan Colmes then challenged John McCain to repudiate these accusations made by BornAliveTruth and Gianna Jessen.

But if we looked more closely at that law in Illinois that Obama offered as his cover (720 ILCS 510.6), we find that it dealt only with cases in which the abortionist himself declares, before the abortion, that there was “a reasonable likelihood of sustained survival of the fetus outside the womb.” In other words, the man hired to perform the abortion would have to declare in advance to his clients and the world that he is about to botch the job and deliver a baby, instead of “terminating” it. What abortionist would certify in such a case that the baby was likely to be “viable”? And he could go about making sure that it would not be viable, even if it were born. But beyond that, as Barack Obama had to know, the Attorney General of Illinois had already rendered the opinion that this act could not be applied to the kind of abortion that was most likely to come under the law: the so-called “induced” or “live-birth abortion,” where the child is delivered – and then placed in another room, to die.

Nothing here should have been a mystery. For nothing has been altered from the case that called forth the Born-Alive Act in the beginning. In Floyd v. Anders (1977) a child had survived an abortion, undergone surgery, and died. The question was raised as to whether there had been an obligation to preserve his life, and the answer tendered by Judge Clement Haynsworth was no. As the judge wrote, “the fetus in this case was not a person whose life state law could protect.” He was a fetus marked for termination. In other words, the right to an abortion was the right to an “effective abortion” or a dead child.

The Born-Alive Act would be necessary precisely because the laws that cast protection over newborns would not be applied to the children who survived abortions. Obama has given us the equivalent of Chico Marx’s line, “Who are you going to believe – me or your own eyes?” The hard truth remains: For the sake of preserving that right to abortion unimpaired, unrestricted, Obama would refuse even to protect a child well outside the womb, if she had been marked for an abortion.

But in this world of sound bytes, how much of this can be explained, in countering Obama, in an ad of thirty seconds? In the meantime Barack Obama, with his slickness, could offer a reworking of Lincoln: You can fool some of the people all of the time, and all of the people some of the time – and that may be good enough.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of 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 available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.