President Trump and His Executive Order

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The calls started coming in just after President Trump appeared at the National Catholic Prayer Breakfast in September.  The president had taken the moment to announce an Executive Order meant to try anew to enforce the Born-Alive Infants’ Protection Act (2002), the Act that sought to protect babies who had survived abortions.

The penalties, civil and criminal, had been stripped from that Act, to make it into a “teaching bill,” a bill that would plant premises in the law.   But without serious penalties that Act could be enforced mainly by threatening to withdraw federal funds from hospitals and clinics. That turned out to be a convoluted process, which never produced a result.

And that is why some of us sought Born-Alive II, to enact serious penalties for the person who kills a child surviving an abortion.  That bill passed overwhelmingly in the House, but couldn’t overcome a filibuster by the Democrats in the Senate (i.e., the party that threatens to undo the filibuster if it regains control of the Senate).

When the president announced his new Executive Order, I was called by the redoubtable Cathy Ruse, who was one of my own main allies on Capitol Hill thirty years ago when I was going door to door, trying to sell this bill.  Cathy sent me congratulations, for it looked like a vindication for what we had done years ago.

But I, conditioned to disappointment, found my way to the grounds of my disappointment.  The most notable was that the president, in his remarks, made no connection between the Born-Alive Act and abortion.  And neither did his Executive order.

The very point of that bill was to bring home to the public the radical position on abortion taken by the liberal party: that since there was right to destroy that innocent being in the womb for virtually any reason, why would it make any difference that the same unwanted child happened to be indecorous enough to come out alive.

When the president failed to connect the Born-Alive Act to abortion, he was foregoing any attempt to use that act for its high political purpose.  And look where the announcement was made:  at a Catholic prayer breakfast, with a concentration of pro-lifers.  It was not offered at the White House for a broadcast to the vast public and the Evening News.

A decision had evidently been made in the White House that Mr. Trump would not talk about this radical position of the Democrats during the presidential campaign any more than he did last time.

And yet. . .with all of those misgivings, there was something of importance, perhaps even an incandescent importance, about that Executive Order. Mr. Trump does not speak in sentences or give arguments. But what was lit up in that Executive Order were the sensibilities of those remarkable young lawyers who had worked at the Department of Health & Human Services, and the White House, in shaping that order.

In the first place, the Order did give new standing to the Born-Alive Act as a statute, which can then bring forth serious orders of enforcement.  The opening lines expressed the central purposes of the Born-Alive Act even if the word “abortion” was not used:

Every infant born alive, no matter the circumstances of his or her birth, has the same dignity and the same rights as every other individual and is entitled to the same protections under Federal law.

That was exactly what we were trying to achieve in the Born-Alive Act.  The same paragraph brought out the key statutes at work for that purpose:  The Order leads with the Emergency Medical Treatment and Labor Act (EMTALA), which  seeks to ensure that any patient within a hospital has a claim to the care of that hospital, including “stabilizing treatment.”

And there was the critical “Rehabilitation Act (Rehab Act),”  which barred discriminations against people afflicted with disabilities.  That Act would cover here the newborns who were afflicted with the wounds or toxic chemicals involved in abortions.

But the benign surprise was that the Executive Order picked up features that we had sought to insert into Born-Alive 2, including a requirement that a hospital have at hand the equipment and procedures for dealing with a newborn at the edge of life.  And in that vein, the Order held out the possibility of discretionary grants of support flowing to research and programs that “may improve survival – especially survival without impairment – of premature infants or infants with disabilities.”

And yet all of this was taken a step beyond what even our own team drafting the Born-Alive Act did not think we could ask:  A warning given to those people in positions of responsibility in hospitals that “they may not unlawfully discourage parents from seeking medical treatment for their infant child solely because of their infant child’s disability.”  That is to say, a warning shot to doctors who gently seek to tip the balance of the scale by assuring the parents that they would be doing nothing wrong in letting go, for the child would have a poor “quality of life.”

No more of that, if there is the sense that the government is serious. And yet, the main instrument available is still only the threat to remove federal funds.  On the other hand, we have never seen a pro-life administration serious enough to show what can be done with that lever.

Right now I have the sense that the persons in the Administration who have brought forth this Executive Order would apply it with a surge of seriousness and conviction.  And I say that with some direct knowledge, for the young lawyers in the administration who have produced this Executive Order are some of my own former students and the children of close friends.

But if the Trump Administration does not survive into a second term, they will of course be gone.   The possibilities they brought forth will vanish overnight, along with the Executive Order that gives them new life.

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.