A Day in the Senate with the Born-Alive Act

The Born-Alive Abortion Survivors Protection Act finally came before the Senate in the last days of February. This was the sequel to the Act passed in 2002, the Act that sought to cast the protections of the law on babies who survived abortions.

As the readers of this column know by now, that bill sprang from a proposal I had written for the debating kit of George H.W Bush in 1988.  By the time it was put in legislative form, the penalties were dropped, in part to avoid a veto from President Clinton (in 2000), but in part also to make the bill a pure “teaching” bill.”

The bill would break out to the public news that most people would find jolting.  Most people did not know that under Roe v. Wade and its companion case of Doe v. Bolton, the right to abortion would extend through the entire length of the pregnancy – and even when a child survived the abortion.

It turned out that there were far more of these babies surviving than we had known at the time.   But it was the mass of killings taking place in the abattoir of Dr. Kermit Gosnell in Philadelphia that brought a new attention to the problem – and offered the moment to act.

With the support of Trent Franks of the Judiciary Committee in the House, I joined with some accomplished friends to draft a new bill, to restore the penalties that had been dropped from the original bill.  That move has made the difference for the Democrats – and further illuminated the landscape.

People curiously forget that when the original bill was enacted in 2002, the Democrats were in control of the Senate.  They did not like the bill, but they were willing to vote for such a modest measure carrying no penalties, especially if they could do it with a voice vote, with no one going on the record.

That is what makes it disingenuous for Democrats now to say that the bill isn’t needed because we already have a law that forbids the killing of  a child who survives an abortion. What comes into play now is an old aphorism of Lord Bracknell, roughly translated in this way: that “it would be superfluous to make laws, unless those laws, when made, were to be enforced.”

To add serious penalties, civil and criminal, for the killing of the child is finally to take this legislation seriously as legislation.


And when that was done, the dramatic change in the Democrats could  then be read in a vote so startling that even the Republicans seem struck dumb in how to deal with it.  With Republicans in control of the House, the new Born-Alive Act was brought to the floor in September 2015, when it passed  248-177.  It was brought again in January 2018, when it passed 241-183.  Every voting Republican voted for these bills, and every Democrat but five or six, voted in opposition.

And now, with the bill in the Senate, every Republican voted for it, along with three Democrats, while every vote in opposition came from Democrats, holding the line.   The bill garnered 56 votes, but short of the 60 needed to overcome the Democratic filibuster.

The Democrats had arrived at the most radical position yet on the matter of abortion – so radical that the Republican managers of the bill, along with President Trump, still haven’t quite figured out how to express it.

The matter was blurted out, almost in passing, by Sen. Patty Murray from Washington. She remarked that “Republicans are peddling a ban that is blatantly unconstitutional.”  That is, this move to protect children born alive is incompatible with that “right” proclaimed in Roe v. Wade. For virtually all Democrats now in Congress and national politics, that right to abortion is a right that extends beyond pregnancy itself and entails nothing less than the right to kill a child born alive.

That is the ground now on which the question should be called and fought out in the presidential election.  But President Trump hasn’t apparently grasped this gift that has been given to him.

And yet, neither has the sponsor of the bill, Sen. Ben Sasse of Nebraska, who persistently failed to draw out the meaning of what his colleagues on the other side were revealing. Twenty years ago Sen. Rick Santorum asked Sen. Barbara Boxer  to offer the earliest moment when a newborn child could be protected by the law, and she said “when you bring your baby home.”

That answer became a source of embarrassment, as Boxer could never explain her way out of the problem. At every turn Sen. Sasse has passed up the chance to draw his colleagues into colloquies of this kind.  That would not affect the vote, but the confrontation could draw the attention of a wider public.

Twenty years ago, the beloved Henry Hyde was astonished that the National Organization of Women would come out so strongly against this modest bill.  But the other side knew that we were asking what was different about that same child five minutes earlier, before it was born – but then five days, five months earlier.

Hyde’s happy bewilderment revealed a state of affairs that still holds:  the other side understands this bill better than some of our own allies, because it understands the principle that lies at the heart of the thing.


*Image: The Massacre of the Innocents by Sano di Pietro, c. 1470 [The MET, New York]

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.