The Born-Alive Act – Redux

Senior Editor’s note: Robert Royal continues to report on the visit to Cuba of Pope Francis. You can read today’s update by clicking here. The pope flies to Washington, D.C. today to begin his time in the United States of America. Bob Royal will again be with host Raymond Arroyo and our colleague and friend Fr. Gerald Murray on EWTN for the network’s ongoing coverage of this historic event. Check your local listings. And click on the banner above to read all of Dr. Royal’s reports on the papal pilgrimage. – Brad Miner

It was a wondrous week even for Barack Obama. He was summoning his powers of demeaning at their highest pitch to arrange just the right assortment of gay Episcopal bishops and Catholic heretics to receive Pope Francis at the White House. And yet he did this in the same week in which he trumpeted, without apology, his refusal to bar the killing of children who survived abortions.

When he was a State senator in Illinois he managed to kill a bill that would extend the protection of the law to the children who survived late-term abortions. He was willing to take that radical stand even as Democrats in Congress backed away, in prudence, from voting against the federal version of the same bill, the Born-Alive Infants’ Protection Act. That bill was finally passed by voice vote in 2002, with no dissenting Democratic vote. But now Congress was faced with the latest iteration of that bill: a move to add serious penalties for engaging in that killing. And therein lies a story.

Readers of these columns probably know that this was my bill; that it sprang from a draft I wrote for the first George Bush in 1988. It was the “most modest first step” in legislating on abortion, to protect the child who survived abortion, and plant premises in the law: even the child marked for abortion had a claim to the protection of the law. And from that point we would ask what was different about that same child five minutes earlier, but then five days, five months before birth.

The bill was finally introduced in 2000, but for the sake of averting a veto from Bill Clinton, the managers of the bill in the House decided to drop the penalties, and make it a pure teaching bill. The bill was finally enacted in 2002, but the penalties had never been restored, and without those penalties, the bill became virtually impossible to enforce.

In the meantime, we came to learn that this kind of killing occurred far more often, in far larger numbers than even we had known at the time. Jill Stanek, a brave nurse in Illinois had blown the whistle on the “live-birth abortion” – delivering the child alive and then putting it in a Refuse Room, uncovered, to die. As she went on the radio for interviews, we heard from nurses in other parts of the country that those “procedures” had been practiced in their hospitals for years.

Then came the killings in Kermit Gosnell’s abattoir in Philadelphia. The country was alerted now, as never before, to the fact that children were killed in brutal ways when they survived abortions.

Trent Franks (R-Arizona) with Hadley Arkes
Trent Franks (R-Arizona) with Hadley Arkes

That gave us the new moment. And so a year ago, in September, I invited a group of accomplished friends in Washington to form a Working Group to restore the penalties that had been stripped from the Act. The group included my former student, Paula Stannard, who had been deputy general counsel of Health and Human Services under George W. Bush, Ed Whelan of the Ethics & Public Policy Center, Mary Harned and Bill Saunders from Americans United for Life, pro-life veterans Bill Wichterman and Chuck Donovan, and the activist Star Parker.

Trent Franks (R-Arizona), Chairman of the Subcommittee on the Constitution in the House, invited us to provide the draft for the new legislation. The Democrats had voted earlier to forbid these killings, and so we would ask: What do you think is the appropriate punishment for killing a child who survived an abortion? Our own draft contained stiff civil penalties, hefty fines for the doctors and their aides who performed these surgeries, and the hospitals and clinics that permitted them. But as convictions kindled on this issue, our friends on the Judiciary Committee were moved to add criminal penalties, with time in jail.

Suddenly with the whirl on Capitol Hill, the Judiciary Committee saw the chance to enact our bill now, as a pro-life measure likely to pass. Chairman Franks reached out for our bill, and with a few changes he introduced it on the floor last Friday, with an eloquent appeal. The bill was renamed (with a string of nouns as adjectives) “The Born-Alive Survivors of Abortion Protection Act.”

But now the restraints on the Democrats were broken. For Barack Obama announced that he would actually veto the bill, and Democrats were now emancipated to vote their true convictions. Only five Democrats deserted their President to vote for the bill. The final tally was 248-177, with every Republican voting for it, and every vote in opposition from the Democrats.

Now there is a question of whether this bill will survive a filibuster in the Senate. To which I say: bring on the filibuster. If the Democrats want to make it utterly clear that their defense of abortion will not permit them even to protect the child who survives an abortion, they should speak as long as they wish in breaking that news to the public.

And even defeat the bill. For then the issue will be before us in 2016, and the Republican candidates will have the simplest, clearest measure to talk about. But will they? Barack Obama could not resist acting out his character, and in that move, he gave us a political gift. Now the question is: Will the Republican candidates show the wit and nerve to make use of it?

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.