The Mysteries of the Born-Alive Acts

A steady reader of these columns will have heard over the years about the flights of genius and imbecility, of soaring hopes and unaccountable disappointments, that have ever attended that “most modest legislative measure on abortion” – the move to protect the child who survived an abortion.

With that awful legislative language, piling up nouns as adjectives, the bill was called the “Born-Alive Infants’ Protection Act.”  For the sake of averting a veto from President Clinton, the penalties were stripped from the bill, and so it became a kind of “teaching bill.”  Its purpose was to plant premises in the law.  And the chief premise was that “even the child marked for abortion has a claim to the protection of the law.”

Grant us that premise, we said, and we would be right back, asking what was different about that same child five minutes earlier.  But then: five hours, five days, five months earlier. In other words, we could unravel the whole pro-abortion position.

And that is why the National Organization of Women surprised the pro-lifers in Congress by coming out in opposition to this modest measure to protect even a child born alive.   The curious thing, lasting to this day, is that our opponents understood the bill better than many of our own friends, for they understood the principle that lay at the heart of the thing.

That is why the Democrats hated the bill, as they became more and more the pro-abortion party. They were willing to avoid embarrassment and vote for that bill, stripped of its penalties in 2002, as long as they could do it on a voice vote and not take a recorded vote.

But that situation has now dramatically changed.  The “liberal” party has become ever more cohesive in its willingness to support abortion, not as a private choice, but a “public good” to be promoted with public funds and made compulsory in medical insurance even for the Little Sisters of the Poor.

How dramatic the shift had become was revealed when the Born-Alive Act was brought back again. The killings done by Dr. Kermit Gosnell in Philadelphia brought out the news of how routinely – and grotesquely – babies were killed when they survived late abortions.


The move was on then to restore the penalties, criminal and civil, that had been stripped from the original bill. When the new bill was brought to the floor of the House in September 2015, every voting Republican voted for it, and all Democrats but five voted against it.  The box score was 248-177, and the situation was replicated in January 2018 with a vote of 242-177.

The bill was not brought to the floor of the Senate by Senator Ben Sasse until the next Congress, in 2019. And the Democrats in the Senate were as cohesive on this matter now as their counterparts in the House.  With a filibuster, they blocked the possibility of bringing the bill to a vote.

With these moves the Democrats have staked out the most radical position yet on abortion.  In surveys over the years, it has been rare to find more than 24 per cent of the public supporting abortion through the entire length of the pregnancy. But the Democratic position now is that: the right to abortion extends beyond the pregnancy itself and entails nothing less than the right to kill a child born alive.

That piece of news is bound to be jolting to many members of the public, and so how do we account for the fact that most people around us have heard nothing of it?

The first answer is that the main media, in print and television, have quite blacked out the story. But that raises a puzzle bordering on the Mystery of the Trinity for those of us who have been immersed in politics and thought we know something about it.  How can we explain how a serious Catholic in the media such as Bret Baier – and a serious journalist – has had the opportunity to raise this issue while serving up questions during the presidential debates, and yet has never raised it?

With all of the resources of Fox News could it really be that he has never heard of this astounding bit of news?  The same thing could surely be said of other prominent Catholics in the media. This question, introduced in our presidential politics now, could shake up the landscape. What could possibly explain the silence of Bret Baier – or why other people in the media have no incentive to raise the issue?

What could be said here of Baier could be said even more of Donald Trump. Could we imagine the effect if Trump turned to Joe Biden in the debate and asked him directly whether he stands with his party in the House and the Senate – and with the president he served, Barack Obama? For Obama insists that the bill to protect children born alive is incompatible with Roe v. Wade.  “Do you hold, Joe, with your friends, that the right to abortion extends beyond the pregnancy and entails nothing less than the right to kill a child born alive?  Is that the right you are trying to defend?”

The odds are that we are not likely to see that scene played out.  And for those of us who thought we knew something about politics, that has become, for us, an unfathomable mystery.


*Image: The Visitation by James B. Janknegt, 2008 [Brilliant Corners Art Farm, Elgin, TX]

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.