Moments to be Seized, Work to Be Done

The thirty-eighth anniversary of Roe v. Wade. There is a surge of hope and renewed conviction with the March for Life in Washington, as people see the signs all about them.   The surveys show a majority in the country moving to the pro-life side, but the new year also brings a pro-life House of Representatives, with the new Republican members even more firmly pro-life. 

Suddenly, initiatives that had been foreclosed under the Democratic House become possible again, and they are springing up across the board: bills to remove the funding of abortion in any system of national health care, to restore protections of “conscience” to doctors and nurses who do not wish to be compelled to participate in abortions, to give women the chance to see on a screen the child whose killing they are about to order.  

And yet, even with this new surge of possibilities there are some curious tricks-of-the-eye distracting even the sight of pro-lifers.   We still hear the talk that one can only chip at the periphery until the Supreme Court overturns Roe v. Wade. That state of mind has people backing into the assumptions of judicial supremacy. And what is blocked from view is the fact that the political branches have ever borne a responsibility in construing the Constitution, which may express itself at times in countering or reshaping the judgments of the courts.  

People seem not to be aware that the Supreme Court, with John Roberts and Samuel Alito, has now brought us to a new point: Initiatives coming from the Congress, the Executive, and the states may have a powerful effect in scaling back the practice of abortion.  The Court is in a position now to sustain these measures, step by step. With each step, lives are saved, and as Roe is cut back, step-by-step, the time will come when it may be toppled, at last, with the gentlest push.   In the meantime, the rest of us have work to do, and with the new Congress that work has already begun.

Dr. Kermit Gosnell: Abortionist

Another trick-of-the-eye has come with the breaking news of Dr. Kermit Gosnell, indicted by a grand jury in Philadelphia, for severing the spinal cords of seven babies who had survived an abortion in his “clinic.” He is accused also of causing the death of a woman overdosed on anesthetic while awaiting the abortion. 

“Clinic” hardly fitted the term for his establishment, in a state of filth, smelling of urine, furniture stained with blood, disposable medical supplies used again, and with instruments not exactly sterilized. But apart from the indictment in Philadelphia, what about a federal ground for prosecution? One friend in a law school asked, “Why don’t we have a cause of action under the Partial-Birth Abortion Act?” 

But there was the trick- of-the-eye: This was not a partial-birth abortion; this was the killing of a child who had survived an abortion. Were our friends forgetting? We had passed the Born-Alive Infants Protection Act (2002) precisely to deal with the problem at this level, the hardest for the partisans of abortion to defend. 

But here’s the rub: The bill was brought forth in July 2000, when Bill Clinton was still President. Charles Canady of Florida, chairing a panel of the Judiciary Committee, thought it prudent to remove the penalties from the bill for the sake of avoiding a veto. Besides, the purpose of the bill was to teach by planting premises, and it would be purer in that respect if it threatened no penalties. 

Then how would it be enforced? If a hospital or clinic were found to deliver babies alive and then kill them, it would be in violation of federal law and could potentially lose federal funds. But when a serious case arose in New Jersey, the process was so cumbersome that the case simply ground down in procedural snarls. 

And so this is precisely the moment for the next phase in teaching: This news about Dr. Gosnell is too jolting, even for the partisans of abortion, and the moment should not be wasted. This is the magic time to hold hearings in the House, to hear the testimony of how common in fact it has become to deliver babies alive and let them die, and to put the question directly: What should the penalties be for a doctor who kills a baby born alive, following an abortion?  

We will hear that the bill is unnecessary because the killings of Dr. Gosnell are being prosecuted in Philadelphia. But the purpose of having Congress fill out its work here is to remind us all that Congress can indeed legislate on abortion – and legislate in a manner that actually bars the practice of abortion. 

When Charles Canady left the Congress, Steve Chabot of Ohio took his place as chairman of the panel of the Judiciary Committee dealing with the bill. He became the sponsor of the bill, and he was there when President Bush signed it into law. Chabot lost his seat in 2008, but he regained it in 2010. He is back again. And who better to take up the mandate?   I would ask our readers who may know-someone-who-knows-someone, to help me in getting the word to Steve Chabot, in a loving appeal: 

Steve, this is your moment – and the work you can do better than anyone else. May we not lament our failure to get it done.

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.