Are We in a Post-Gosnell Moment?

At the time of my last column, we were awaiting the outcome of the Gosnell trial in Philadelphia. I was emitting a kind of cri de coeur over the conservative media and even pro-life Congressmen, who managed to erase from their memories the fact that we had actually enacted a federal statute that forbade the killing of a child who survived an abortion (the Born-Alive Infants Protection Act).

But now the dramatic conviction of Kermit Gosnell has drawn the attention of the country with a focus intensely concentrated on the killing of a child late in pregnancy. More than that, this framing of the problem has drawn people, in the most natural way, to view the problem through the lens of the pro-lifers.  

In a panel on Fox News, Kirsten Powers, the designated liberal Democrat in the group, remarked on a friend of hers who was pro-choice – and yet shocked to learn that abortions could be performed throughout the entire length of the pregnancy. 

And yet, it was one of the driving purposes of the Born-Alive Act to impart that precise effect – to break out to the public news that even pro-choicers would find jolting.  That was the case that some us were making for that bill over twenty years ago. The media managed to block those effects by the simple device of refusing to cover the hearings and the vote on the Born-Alive Act in Congress.  

Now, ten years later, the Gosnell trial has broken through the barrier to make our point, and some of us could only wonder: Why did it take more than twenty years for the pro-lifers to wake up to the lessons – and the effects – that this simple move could impart?

But have they woken up, even yet? Daniel Henninger of the Wall Street Journal remarked that the Gosnell case brought a new “hinge-point” in the politics of abortion. But what will the pro-lifers do at this moment?  Answer: They will probably run true to form by engaging in dramatic acts of distraction.

           Hadley Arkes, third from the left, and others with President Bush at the
signing of the Born-Alive Infants Protection Act on August 5, 2002


And so the word comes in that Sen. Mike Lee, one of the rising young stars in the Senate, is shaping with his staff certain proposals to “investigate and correct abusive, unsanitary, and illegal practices”; to gather information about interstate referrals for “dangerous or illegal second and third-trimester abortions”; and to conduct hearings on abortions performed at or near the point of vulnerability.  

There is a movement in the works to bring forth again the bill to bar abortions after twenty weeks. And it appears now that, in response to my own earnest appeals, staffers are at work to restore the penalties that had been stripped from the Born-Alive Act.  

But we also hear of a move to append a rider on abortion to a bill extending the debt-limit. Moves of that kind quickly expose the pro-lifers to the charge of making feckless gestures. Many of the other proposals open the pro-lifers to the charge of reaching too far, with arguments that take more unraveling. And almost all of them distract us from putting the focus now on the place that draws the close attention – and the sympathy of the public.

Years ago, when the courts were dealing with the bills on partial-birth abortion, the pro-lifers were twitted by Judge Richard Posner in Chicago. The law did not claim, he said, to protect the child in the womb. And so why would the State have any compelling interest in shifting that killing from the birth canal back to the uterus?   

He had a point, and that was the point that the Born-Alive Act sought to fill in: namely, that the law may indeed protect that child marked for abortion, when that child survived.  It would fall then to others to explain to us why we couldn’t protect that same child minutes earlier, before she emerged from her mother’s womb.

And so we drew on the line attributed to Andrew Jackson at the Battle of New Orleans: “Boys, let’s elevate them guns a little lower.” Let’s make this simpler. Let’s put the key premises in place – and that will set the ground for any later moves. 

With that sense of things, the Born-Alive Act also gave us the chance to establish this key point: that if the Supreme Court could articulate a new constitutional right – a right to abortion – the legislative branch must be able to vindicate the same right on the same ground in the Constitution discovered by the Court, and in filling out that right, marking its limits.   

What should not be tenable is that the Court can articulate new rights – and then assign to itself a monopoly of legislative power in shaping those rights. What we sought to establish then was that the Congress may indeed legislate on this matter, and establish, as the first point, that whatever else Roe v. Wade meant, it could not have entailed a right to kill a baby who survived an abortion. 

My pitch: Let us put these key points in place with new hearings on the Born-Alive Act. Let us take evidence, before the country, as to how often this kind of killing takes place. Let us affirm the authority of Congress to reach this matter – and from that beachhead move outward to the further things we want to do. 

For the pro-lifers: Time to concentrate our minds.





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.