Restoring the Penalties to the Born-Alive Act


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

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. 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.