Hadley Arkes on the Born-Alive Infants Protection Act on National Review Online
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July
31, 2002, 9:00 a.m.
Unheralded
Good
The Born-Alive
Infants Protection Act.
By Hadley Arkes
 ou
might not have heard the news, for the Times and Post and
the networks have not thought it something useful for us to hear: But
for the first time since Roe v. Wade, the Congress will
have enacted, and a president will have signed, a bill that marks a limit
to the "right to abortion."
 
A
little more than a week ago, on July 18, the Democrats in the Senate permitted
the reading and the passage of the Born-Alive Infants Protection Act,
an act that seeks to protect a child who survives an abortion.
The Congress could have accomplished something comparable with the bill
on partial-birth abortion. But Bill Clinton vetoed that bill, and the
Supreme Court struck down the similar bills passed in the states. There
is now a president who will sign the bill, and yet even Bill Clinton would
have found it hard to veto a bill as simplified and modest as the Born-Alive
Act. No one except the radical feminists in the National Abortion Rights
Action League had the touch of madness to oppose this bill, for no one
except a crazed zealot would profess any doubt about the "human"
standing of the child at the point of birth. Not that the members of NARAL
have any doubt on that score themselves. It is just that they are willing
to assert, with radical firmness, the right of a woman to destroy the
child in her womb as a matter solely of her own interest, and the triumph
of her own will.
But
the feminists at NARAL were also moved to passionate opposition because
they understood this bill better than many of its supposed friends among
the Republicans, for they understood its animating principle. As modest
as it was, the bill planted premises that ran deeper than the bill on
partial-birth abortion. Indeed, it could be said that, with this bill,
the Congress now prepares an even firmer ground for revisiting the bill
on partial-birth abortion and insisting that the courts take a sober second
look. Judge Richard Posner had twitted the drafters of the bills on partial-birth
abortion: Those laws had never claimed the authority to protect the child
herself, and so, he asked, why would the state have any compelling interest
merely in shifting the killing of the child from the birth canal back
to the uterus? With the Born-Alive Act, the Congress fills in that missing
step: The child marked for an abortion is recognized now as an entity
that comes within the protection of the law. When Bill Clinton vetoed
the bill on partial-birth abortion, his concern was entirely for the feelings
and health of the pregnant woman. Somehow that other being, the one whose
head was being punctured, and the brains sucked out, never came within
his sight. For the law, and for Clinton, the child was not there; her
interests simply didn't count.
The
Born-Alive Act accomplished its work in the most delicate way, without
any contrived theories of the Constitution. The drafters took their model
from the Defense of Marriage Act of l996: Congress surely has the authority
to pronounce on the meaning of terms in the federal code, which Congress,
and only Congress, can legislate. Congress could then stipulate that by
a "marriage" it meant a legal union of a man and woman, known
as "husband" and "wife." In the case now of the child
who survived an abortion, the Congress simply stipulated that the term
"person," used in the federal code, and in federal regulations,
"shall include every infant member of the species homo sapiens who
is born alive at any stage of development." And the meaning of "born
alive," set forth in terms to guide lawyers and judges, clearly encompasses
"the expulsion or extraction [of a child] as a result of natural
or induced labor, cesarean section, or induced abortion."
(Italics added)]
And
that is all. The bill is spare — and truly momentous. For it provides
a predicate that can be built into the foundation now of every subsequent
act of legislation touching the matter of abortion: that the child marked
for abortion is indeed a "person" who comes within the protection
of the law. The irony, though, is that this bill could be enacted only
on terms that barred its sponsors from proclaiming, or even explaining,
the things that made it such a landmark. Once the control of the Senate
shifted to the Democrats, the bill had little chance of being introduced,
even though it commanded wide support in both parties. The initiative,
and the moral conviction, came from the House, from Charles Canady, the
former chairman of the Subcommittee on the Constitution, and his successor,
Steve Chabot of Ohio. Congressman Jerry Nadler (D, N.Y.) had the wit to
see that the Democrats would embarrass themselves by voting against the
bill, even though Nadler could not restrain himself, at every turn, from
denouncing the bill, and the Democrats in the House and Senate clearly
hated it. The Democratic strategy was just to go along — to avoid
embarrassing themselves by voicing their opposition, and by giving the
pro-lifers the argument that they evidently wanted. For that argument
would only draw attention to the bill. By playing rope-a-dope in that
way, the Democrats could snatch a victory of sorts from this political
trap: The bill might pass, but without the kind of debate that would establish
the meaning, or significance, of the bill.
IN
NEED OF MEANING
The price of passing the bill in the Senate was essentially to give the
Democrats what they wanted. The bill was introduced for its formal "readings"
without explanation or fuss, by Harry Reid of Nevada, hardly a pro-lifer
in anyone's reckoning. In this style, the bill was "passed"
late on a Thursday night, at the end of a cluttered legislative day, and
just before the Senate would turn to a resolution honoring the musician
and statesman Paderewski. Rick Santorum of Pennsylvania had introduced
the measure last year, as a rider to the Patients Bill of Rights, and
when he demanded a roll call, the vote was 98-0. But now there would be
no roll call, and so no Democrat would be compelled to record a vote,
either for or against. In fact, there were probably very few senators
in the chamber when the bill was passed, in a perfunctory way, by a voice
vote. Santorum would not be allowed to frame the bill, to point up its
meaning, and no voice would be sounded to explain the significance of
what was done.
And
yet, the astonishing thing is that the Democratic leadership allowed the
bill to come up at all and be passed, rather than buried until the end
of the session. The seasoned watchers of Capitol Hill guess that the Democrats
didn't want the responsibility for killing a bill that seems sensible
even to people who are "pro-choice" on abortion. In this construal,
they might have reasoned that it was better to deprive the Republicans
of the issue — they could clear the bill away briskly, as a measure
that merits no discussion and bears no significance.
The
real puzzle is why the Republicans were so willing to acquiesce in this
scheme to help the Democrats escape from a political bind. In the Senate,
Rick Santorum had little choice; the main cave-in came in the House, in
the decision to remove the "findings" that would have made the
premises of the bill explicit. Two years earlier, the attachment of those
premises, spelled out, stirred a panic among the so-called Republican
moderates, who threatened to join with the Democrats in adjourning the
House. It stood to reason that if those premises were spelled out again,
a large hunk of the Democrats could not have made themselves vote for
the bill, regardless of anything Jerry Nadler had to say. The chairman
of the Judiciary Committee in the House, James Sensenbrenner of Wisconsin,
probably figured that he had enough trouble on his hands without igniting
an explosion in the House. But a couple of years earlier, Charles Canady
of Florida wondered why those "findings: would cause such political
strain: Did the members really think that there was a constituency for
infanticide back in their districts? For the findings simply pointed out
that it hardly made sense to vote for this bill unless one was implying:
that the child marked for an abortion, but born alive, has a claim to
the protection of the law, and that claim cannot pivot on the question
of whether anyone wanted her.
If
that premise was not true, the Democrats were open to correct it: Do we
protect the child because it pleases us to protect her — and would
we cease to protect her when it ceased to please us? But if the child
has a claim to the protection of the law, that must mean that the child
has an intrinsic dignity, which cannot be contingent on her location,
or on whether her existence serves the interest of anyone else.
In
its immediate, practical effect, the bill was aimed to combat the judgment
expressed 25 years ago, in Floyd v. Anders, by Judge Clement
Haynsworth. A child had survived an abortion for 20 days, and when the
question was put as to whether there had been an obligation to preserve
its life, the answer tendered by Haynsworth was no. As he "explained,"
that was not a child but a fetus, and "the fetus in this case was
not a person whose life state law could protect." In other words,
the right to an abortion was the right to an "effective abortion"
or a dead child. In its draft of the findings, the Subcommittee on the
Constitution repudiated that very claim, for it had ample reason to think
that Judge Haynsworth's opinion was not an anomaly. Two years ago, a federal
court struck down the bill on partial-birth abortion, with the opinion
written by Judge Maryanne Trump Barry, the sister of Donald. Judge Barry
treated with contempt the claim to protect the child at the point of birth,
for the notion of "birth" she regarded now wholly as a matter
of perception. And so she denied the premise that "the fetus is in
the process of being 'born' at the time of its demise. It is not. A woman
seeking an abortion is plainly not seeking to give birth." This was
postmodernist jurisprudence with a vengeance. There were no objective
facts, only theories. Since a woman willed an abortion, there was no birth,
and no baby there to be born. What Judge Barry's opinion made chillingly
clear was that Judge Haynsworth's opinion, years ago, was not an aberration.
His understanding was being installed right now, by many federal judges,
as the reigning orthodoxy for the courts.
The
"findings" would have helped in making these points, and conveying
the significance of this bill. But even now there is a chance to salvage
the situation, for even now the President could say something to mark,
for the public, the meaning of the bill as he prepares to sign it. The
president could strike a bipartisan posture to celebrate a collaboration
of the parties: People of moderation of both parties have come together
to affirm that, whatever else the "right to abortion" means,
it surely cannot mean the right to take the life of a child at birth.
Every right has its limit, and with this modest step, both parties can
establish that there is a limit to the right to abortion that even pro-choicers
will acknowledge. At the same time, the parties will have established
that Congress has the authority to legislate on this vexing subject. From
the mass of 1.3 million lives taken in each year, we simply try to preserve
at least a handful of lives. Who would find fault in that — and the
president finds his strength, his own, strongest voice, in explaining
just why we would save a handful of lives within our reach. If he does,
the Democrats could hardly complain without courting the embarrassment
that they have sought so cagily to avoid.
The deep worry, of course, is that if nothing is said, the Democrats will
have won. More than that, they will have finessed a remarkable victory
from what figured to be, for them, a certain disaster. For who would attach
any meaning to a law, when those who enacted it did not proclaim it, or
even made some noticeable effort to impart its meaning to the public.
In the absence of anything said officially, the meaning of the bill can
be marked only in commentaries of the kind I have set down here. But such
commentaries are as nothing, compared to the simplest words spoken by
the president, for those words are spoken with the authority of his office
and they have behind them the weight of the Executive branch. It is precisely
at moments of this kind, with the moral questions thickening, that Mr.
Bush has often shown his surest touch. My own hope is that he will redeem
the efforts and the sacrifices made for this bill, and speak finally,
at this moment, some telling words of his own.
— Hadley Arkes is the Ann and Herbert Vaughan
Fellow at the Madison Program, Princeton University. He is one of the
architects of the Born-Alive Infants Protection Act (which was first floated
in National Review, and a partial
memoir of that bill is contained in his new book, Natural
Rights & the Right to Choose.
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