Life Watch:At Long Last: The Modest First Step—Taken

Finalmente! After years of pressing the argument in the pages of Crisis, the Wall Street Journal, and National Review, the most “modest first step” of all was finally taken: On April 13, Rep. Charles Canady (R-Fla.) introduced the federal bill that would protect the child who survives an abortion (the Born-Alive Infants Protection Act of 2000). With that move, he would seek to plant in the law premises, or points of principle, that would establish the ground for any further measures that would protect the child in the womb.

Canady’s bill would address the problem of abortion at the first moment that the interests of the child could be separated from the interests of the pregnant woman who does not wish to be its mother. And for the first time the point would be made that this child has a claim to the protection of the law even if she had been marked for an abortion. That is, the law would have to imply (1) that the child has a claim to the protections of the law, a claim that does not pivot on the question of whether anyone happens to want her; and (2) that the injuries of the child “count,” that there is a real entity present, whose injuries can be recognized by the law.

With this simplest of all moves, Congress would offer the first explicit rejection of the argument put forth 23 years ago by Judge Clement Haynsworth in the case of a child who had survived an abortion for 20 days. The question was posed as to whether there had been an obligation to preserve the life of that child, and the answer tendered by Haynsworth was “no”: “The fetus in this case was not a person whose life state law could protect.” It was a fetus rather than a child because it had been marked for “termination.” In other words, the right to an abortion was not merely the right to end a pregnancy; it was the right to a dead child.

Justice Lewis Powell took note of this argument once, in a passing comment in a footnote, and pronounced it remarkable. But to say it is remarkable is not to say it is “wrong!’ or to explain the ground of its wrongness. Rep. Canady’s bill gives the Democrats their first chance to reject the claim that the right to an abortion is the right to a dead child. Not even Al Gore can pretend that the child, after birth, is “arguably” anything but “human”; and nothing that is done to protect the child can “threaten” the interests of a woman in her freedom to end a pregnancy.

This would seem to be, then, the clearest ground on which the partisans of “choice” on abortion could come together with the pro-lifers. And yet, we know that they will not. For as modest as the bill is, it runs deep, and people on the other side know that they cannot acknowledge, even in the slightest way, the human standing of the child marked for abortion. They cannot do it, that is, without dismantling the premises that undergird the whole structure built up around the right to abortion. After all, if the standing of the child does not depend on whether anyone “wants” him or her, why does that premise come into play only at the time of birth? What was so different about that child just hours or days before birth? The question put by the bill, the question that cannot be evaded, is: Does that child—or does any one of us—have an intrinsic dignity that other people are obliged to respect? Or are all of our rights simply conferred upon us as it suits the interests of those who have control over us? If the latter is the account of how our “rights” begin, that understanding would mark the undoing of all our rights.

But once the premises of the bill are planted in the law, the argument would have to change all along the line. For one notable example, consider President Clinton on the matter of partial-birth abortions. Whenever Clinton has framed this issue in public, he affects a concern for the “health” of the pregnant woman, as the only interest that is weighed against the requirements of the law. Curiously screened from the picture is the presence of another being, whose skull is being crushed, with the “cranial contents” suctioned out. If Clinton signs this new bill, if he acknowledges the presence of another being at the point of birth, would he not come under some pressure now to explain just what danger to a pregnant woman would justify this kind of gruesome assault on the child?

Of course, Clinton is capable of saying anything, because he is Clinton. But would the same thing apply to other Democrats, such as Senator Joseph Lieberman of Connecticut? As I have remarked in these columns, Lieberman has often wrung his hands and professed an interest in voting with our side to protect nascent life. But somehow he never is able finally to cast that vote. As Robert George of Princeton has observed, we could aptly say now, “All right, Joe, you weren’t able to vote with us when the baby was 70 percent outside the birth canal. Now he’s 100 percent out. Can you vote with us now?”

Speaking of George, he and Michael Uhlmann have put in days and weeks with me, at different times, in different seasons, meeting with congressmen and their staffs, and even lobbyists on the pro-life side, as we have tried to persuade our friends that this, the simplest step, may also have the deepest reach. Whether it does now or not will depend on whether the lessons of Clintonism have taken hold: One lesson is that politicians can get up and lie directly to the American people, or even ignore the bill entirely, and the American people may not be all the wiser for it, especially if the press does its usual job as an unpaid annex to the cause of abortion.

And yet, what we have also come to know of the partisans of abortion is that they are acutely sensitive to issues of principle: They instantly spot anything that would undermine their argument in principle—hence, their willingness to wage a resistance against Lindsey Graham’s bill on “the unborn victims of violence.” If they run true to form, they will not let Canady’s bill fly by without resistance. But if they resist, if they give us a public argument over this question, the modest ends of this measure would be achieved.

Canady is the chairman of the Sub-committee on the Constitution of the House Judiciary Committee, and in that role, he has borne the main responsibility for the most important legislation in recent years bearing on the “life issues.” With the sense of a moral purpose, and with the most remarkable, generous temper, he has managed the bills on partial-birth abortion, along with the Defense of Marriage Act of 1996. We will have more to say, over succeeding columns, about the law and politics surrounding this bill, but part of the genius of Canady and his staff can be found in their move to draw on their design in the Defense of Marriage Act. In that bill, there was no need to argue about the Fourteenth Amendment, or just how the federal government would address issues of “family law.” There were, in the federal code, several hundred references to “marriage,” or to husbands and wives, and Congress surely had the authority to pronounce on the meaning of the terms that Congress itself placed in the federal code.

In the same way, Canady would neatly avoid here the vexing question of whether Congress is acting with its powers under the Fourteenth Amendment or the Commerce Clause to mark the limits of abortion. Congress seeks here merely to amplify the meaning of “person” in the federal statutes. And what Congress adds now is this: that “the words ‘person,’ ‘human being,’ ‘child,’ and ‘individual,’ shall include every infant member of the species homo sapiens who is born alive at any stage of development.” The term “born alive” would cover “the expulsion or extraction [that] occurs as a result of natural or induced labor, cesarean section, or induced abortion.” The bill, framed in this way, also avoids the arguments, cast up as distractions, over “interfering in medical judgments.” The bill does not mandate heroic surgery or prescribe medical judgments. If surgery seems hopeless, the bill would not require it. But the bill would bar doctors from withholding medical care merely because the child had been targeted for removal in an abortion.

Just a few days before Rep. Canady filed his bill, a baby survived an abortion in Sydney, Australia, and lived for 80 minutes while the staff was instructed to let the baby die. When a nurse told the doctor that the baby had survived, he responded, “So?” But cases of this kind are also becoming more numerous in this country, as seen, for example, in the protest registered by Jill Stanek, a nurse at Christ Hospital in Oaklawn, Illinois. Three years ago, Stanek reported on a “live-birth abortion”: a baby with Down syndrome was delivered prematurely so that it would be allowed to die. Stanek was given a warning for making this news public, but within the current year, apparently, there have been two more such “abortions” at this hospital.

But the significance of the question runs beyond the number of cases. The burden for the defenders of abortion is that the response of the doctor in Australia arises quite coherently from the defense of abortion rights, and the denial of any standing to the child. That is a burden defenders of abortion should be compelled to deal with directly. They have the chance now to draw a limit to the “right to abortion,” and if they cannot meet us, at least, on this common ground, then they would be forced to acknowledge, quite openly, that their defense of abortion commits them to an explicit defense of infanticide.

That limited issue, posed in that way, would also render the question of abortion far more tractable for Governor Bush. Gov. Tom Ridge of Pennsylvania, a pro-choice Catholic, has made the usual move now to remove the plank on abortion from the Republican platform. The platform looks to a later day, when the protection of an unborn child can be secured in the fundamental laws. But all of that could be put aside now as we focus on the matter of starting a conversation—and at the point where the issues in principle are easiest to grasp. Bush can simply turn to Gore and ask: Could we not join together in agreeing to protect the child who survives the abortion? If not, the difference between moderates and zealots would become ever sharper: one side in the dispute would seek to protect a handful of children; the other side would accept infanticide itself rather than seeing even a single child saved.

Gore, of course, is likely to have a comeback to that question. And knowing that, we can imagine, with some relish, the comebacks to those comebacks. It is worth pondering them now—and so we will take them up next time.

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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