New Prospects on the 44th March for Life

Note: On this special day, we’re happy to welcome back our longtime colleague Hadley Arkes, who had to take a leave from TCT to conclude fifty years of teaching at Amherst. -RR

The longtime readers of this column have heard the installments, played over the years, of “the most modest first step in legislating on abortion,” the bill that barred the killing of a child who survived an abortion. That proposal sprung from a draft I had written for G.H.W. Bush in 1988. But it took until 2002 until that bill was passed into law and signed by George W. Bush. The bill was called, in that awful legislative language, the “Born-Alive Infants’ Protection Act.”

But the penalties were stripped from that original bill for the sake of averting a veto from President Clinton in 2000. The Act would serve as a “teaching bill” – its purpose would be to plant premises in the law: namely, that even the child marked for abortion may have a claim to the protections of the law at some point. Still, without penalties, the bill was virtually unenforceable. And in recent years, we discovered that there was far more of this killing than my allies and I had known at the time. Then came the news of the abattoir run by “Dr.” Kermit Gosnell in Philadelphia.

The moment seemed right then to return to the original bill and restore the penalties. I formed with friends a Working Committee, and we were encouraged by Rep. Trent Franks of Arizona, one of the most deeply committed pro-lifers in the House of Representatives. He was also the chairman of the Subcommittee on the Constitution of the Judiciary Committee.

In September 2015 he brought the bill to the floor of the House. President Obama ran true to form and threatened to veto the bill. That declaration liberated the Democrats to vote their true convictions, and 177 Democrats (all but five of them) voted against the bill. Even now the enormity of this move has not been absorbed by the political class and the media: The leading Democrats in the country now hold to the position that the right to abortion proclaimed in Roe v. Wade is not confined to the pregnancy. It entails nothing less than the right to kill a child born alive, who survives the abortion.

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The mystery is why this point was never raised by the Trump campaign, for it would have caught Hillary Clinton and her party in the toughest position they would have to defend. But the issue will be back and even stronger now. It was a notable breakthrough this past Thursday when Senator Ben Sasse of Nebraska introduced the bill into the Senate. There surely will be resistance, but will the Democrats really try to filibuster this bill – and defend the right of surgeons to kill a child who survives an abortion?

But so stand things now as pro-lifers gather in Washington today for the 44th time for the March for Life. I have not missed a single one. And yet the marchers gather now buoyed by prospects richer than anything we have known even since the days of Reagan. The election brought in a conservative Administration with pro-life lawyers at every point in the White House and Department of Justice.

From this corps will come the nomination of a judge fit to be the successor of Justice Scalia. But the Republicans in Congress are even more firmly a pro-life party than they were in the days of Reagan, and from this Congress will come a series of pro-life measures, including the new Born-Alive Survivors of Abortion Protection Act.

What has not dawned on the Republicans in Congress, even yet, is that they can do more than treat the issue of abortion at the edges, by withdrawing the funds to promote abortion. What most conservatives don’t recognize is that Congress right now has the authority to legislate directly on abortion, to enforce or even modify, limit, scale down, those rights proclaimed in Roe v. Wade.

That is the lesson we are trying to teach again in this new version of the Born-Alive Act, drawing on precedents from Lincoln to our own day. In the meantime, there will be an appointment made to fill that seat held by Justice Scalia, and there seems little recognition of how the hearings on confirmation could be affected profoundly by this pending bill.

Those hearings have been poisonous affairs since the infamous assault on Robert Bork. But if the Republican nominee and the Senators make use of the new bill, the Democrats may quickly lose their appetite even for raising the issue of abortion. The nominee will no doubt be asked whether he or she accepts Roe v. Wade as a “settled precedent.”

But any Democrat posing that question could now be asked in turn: how does he understand that holding in Roe? For according to President Obama and Democrats in the House, the body of rights contained in Roe could be unraveled if the law could bar the killing of babies who survive abortions.

The Senator can be asked: Does he accept those views of Obama and the Democrats in the House? Most members of the public would be shocked by that reading. It would surely be controversial – and novel. And if the Democrats are not willing to reject Obama’s reading, then the nominee and the Republicans could take these hearings to break out “news” both dramatic and sober: that forty-four years after the decision in Roe v. Wade, the meaning of that case is apparently far from settled.

Hadley Arkes

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and 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.

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