Life Watch: Congressman Graham Springs a Bill

At a meeting in Washington in June, I offered praise for the House managers during the impeachment of the president, and contrasted their performance with the preening and cowardice of the senators. I was moved to say of the House managers what Lincoln had said of the Massachusetts Sixth regiment, after it had finally broken through to secure the capital: They were “the only real thing.” Those words functioned in part as an introduction for Lindsey Graham (R-S.C.), who had been delayed in getting to the meeting. He arrived in time to hear my remarks, and said, “Doc, thanks for the good words … but I don’t think the folks back home would appreciate the comparison to the Massachusetts Sixth. And I sure don’t want the word getting around that I did anything to save the capital.”

Graham had shown his mettle—and his wit—in the prosecution of the president, but at the end of June he showed that wit in another way by springing on the House a bill on “fetal homicide” (“The Unborn Victims of Violence Act”). To the Democrats on the Judiciary Committee of the House, Graham’s bill came as a jolt. They really could not imagine why anyone would have the slightest interest in extending the protections of the law to unborn children. Any move in that direction threatens the very premise of Roe v. Wade—meaning that it threatens the right that they have come to regard as the “first freedom.”

The anger of the Democrats became even deeper as they realized that they could not really challenge Graham’s bill without challenging premises and policies that they themselves have put into place. Everyone sensed, everyone knew, that this bill ultimately struck at the premises behind the right to abortion, but Graham understood that the bill could not offer a direct challenge to Roe v. Wade without inviting the quick intervention of the courts in striking it down. And so Graham’s bill made the point explicitly, in two places, that it was not restricting in any way the right to an abortion. The bill was carefully cabined and limited: It would apply only to those acts of assault that were already defined as crimes under federal law, within the reach of the federal government. In recent years, the federal jurisdiction has been enlarged, for example, to cover “drive-by shootings” that occur in the course of dealings over drugs. The people engaged in those shootings would be responsible for the injuries done to innocent bystanders; and Graham’s bill would now make it clear that the assailant could be held responsible for the death caused to an unborn child.

Of course, there has been a long, puzzling question of what the “federal jurisdiction” may rightly encompass. We need to remind ourselves that it is only within our own lifetimes that the killing of the president has been made a federal crime. If Lee Harvey Oswald had been tried for the murder of President Kennedy, he would have been tried for a homicide under the laws of Texas. But we seemed to have passed critical thresholds here in the 1960s, especially after the murder of three young civil rights workers in Mississippi. Without the passing of those thresholds, it would be hard to account for the wide extension of federal jurisdiction in our own time, to cover things like the obstruction of access to abortion clinics.

What bedevils the liberals right now is that they were the authors of most of these measures, extending the reach of the federal authority. Graham can truly say here that he seeks no extension of that authority to subjects or crimes not covered right now He would simply apply more fully the jurisdiction that is already in place, by applying the law to the cases that should have been covered all along. The staff on the Judiciary Committee invited me in to testify in support of Lindsey Graham’s bill, and I took the occasion to recount these cardinal points. And so, as I observed to the committee, the people who would challenge Graham’s bill would have to challenge, as improvident, most of the recent extensions of federal law, which were carried through in the service of liberal ends. But even if we changed our minds, say, on drive-by shootings or any of the most recent policies, that would not affect Graham’s bill at all. For he would be perfectly content to have that bill apply to the domain of federal jurisdiction that happens to remain. Even with the most contracted notion of the federal government, the Congress will still have the authority to govern the military and so Graham’s bill would apply quite readily to the case of U.S. v. Robbins, reported in the Court of Military Appeals in May. Robbins, an enlisted man in the U.S. Air Force, wrapped his fist in a T-shirt and beat his pregnant wife severely. In the course of the assault, he killed the unborn child, who had already been named baby Jasmine. The military prosecutors came down heavily on Robbins in charging him with assault, but they did not think they had any authority, under military law, to prosecute for the death of the child. Graham’s bill would remedy that omission, and for cases of this kind, it would make the most notable difference.

But the remarkable point, coming through the hearings, was the utter refusal on the part of militant feminist groups to recognize any such difference, because they could not acknowledge the presence of the child in the womb. And so Julie Fulcher, of the National Coalition Against Domestic Violence, insisted that the law should preserve its focus on the intended victim of the assault—the battered woman—and on her alone. Every injury to the child had to be translated then into an injury to the woman—a notion that warred with common sense. In the Robbins case, the lethal assault on Jasmine Robbins would have to be translated into a severe, though non-lethal, assault on Mrs. Robbins. In this way, the lens of ideology induces Fulcher and her friends to offer a false view of the case—or a willful refusal to acknowledge what is plainly before their eyes: not only that Mrs. Robbins was beaten up, but that a separate, small human being, a child called Jasmine, had actually been killed.

But the maddening part, again, for the liberals is that they are undone by their principle of “choice.” They have argued, after all, that a “baby” is present in the womb only when the mother wants the child; but when she does, they would not deny the standing of that child in the womb to inherit property or have a claim, as a victim, against negligent drivers. If baby Jasmine’s mother wanted her child, why should that child not have the protections of the law that are given to unborn children in other instances? The partisans of abortion know that this bill strikes at the root, but they cannot quite find the grounds of opposition without overthrowing some of their own premises.

But at the same time, that very construction poses a problem for the pro-lifers as well. For the bill, taken by itself, may merely confirm the premises of “pro-choice”: When a child is wanted, he or she is protected by the law; and when not wanted, he or she has no standing to receive the protections of the federal government. And that is why this bill cannot be that “long pass” we may one day be able to throw. From this bill, we can do nothing to start restricting abortions. In my own estimate, this bill could not have its fuller effect and significance until it is joined to that other bill that Graham had come to the threshold of introducing—the measure we have been pressing in this column for a long while, to preserve the life of the child who survives the abortion. For with that bill we would plant the premise that the child, marked for abortion, does have standing to receive the protections of the federal law. In the meantime, the current bill does plant another premise: that the unborn child, under certain circumstances, can be protected by federal law. That is precisely why the partisans of abortion object to the bill, and in that objection, they read the matter rightly.

During the exchange in the hearings, Congressman Mel Watt (D¬N.C.) expressed a certain uneasiness over the language of the bill. He was uncomfortable in referring to “unborn victims of violence.” Would it really make a difference, he asked, if we simply said “fetus”? I replied that it might not matter. The first thing we had to do, I said, was ask just why we were seeking to protect that thing in the womb. After all, federal law protected “endangered species.” Were we protecting that organism because we thought it was an animal, or because it was a small human being? If the latter—and we were clear on that point—then it probably would not matter whether we call it a human fetus or a child. To this, Congressman Watt replied, “Well, Mr. Arkes, if you are not going to be serious with me, I am not talking about animals.”

At this moment, the Republican staffers were shaking their heads and grinning, and we were suddenly reminded of a recent quip: that the Democratic members of this committee managed to reenact the bar scene in the original Star Wars movie, with improbable characters filling the screen. But we had to summon then a deeper appreciation for Henry Hyde. He was obliged to preside, with civility, over a committee whose Democratic members could not be counted on to know the entire alphabet—and then compensated for their deficits with an oversupply of rudeness. In this way, in our time, the work of the Republic is done.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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