It was nearly, as they say, déjà vu all over again: It was another hearing in the Subcommittee on the Constitution in the House of Representatives—and once again an encounter with Rep. Mel Watt (D-N.C.). Last year, it was a tangle over the Unborn Victims of Violence Act (see “Congressman Graham Springs a Bill,” October 1999). This year, it was the Canady bill, the Born- Alive Infants Protection Act.
The bill worked modestly: Congress defines the meaning of terms in the federal code, and Congress would simply stipulate that any mention of “person,” “human being,” or “child” in the federal code “shall include every infant member of the species homo sapiens who is born alive at any stage of development.” That formula would cover then the child who survives an abortion. The Democrats seemed to be caught off guard by this move, and so Congressman Watt tried out a theme of plausible evasion: He pointed out that there were, in the federal code, several thousand references to “persons” and “child?’ Should there not be more caution, he asked, before we rushed to legislate on a matter that would touch the federal code at so many points?
Since I led the testimony on the bill, he asked me if I had made any study “of what implications, if any, this has on other areas of the law.” I responded that I had indeed looked into several of the other statutes but that it really didn’t matter. To his evident puzzlement, I put it this way: Let us suppose that it is 1861, and we have Edward Bates, Lincoln’s attorney general, seeking to resist the decision in the Dred Scott case. Bates filed an Opinion of the Attorney General, asserting that in the under-standing of this (Lincoln) administration, all black people born free in the United States are in fact “citizens” of the United States and “persons” under the law. Let us imagine then that someone came back at him, in the style of Rep. Watt, and asked, “But how would that affect all the places in which persons are mentioned in the law?” Should we not hold back from such a move until we had weighed the effects on all of those other statutes?
With smiles breaking out in the room, Rep. Watt sought to cope with his embarrassment in a familiar way: he played the race card. “Mr. Arkes, I have—and maybe this is just a personal thing to me,” he said. “But I get real offended when people try to put everything that I ask into some racial context?’
According to the transcript, I remarked that I too was “offended by this attempt…to keep blocking off an an[swer]s’ I should have known, perhaps, that I could “get in trouble in this committee offering that rare thing called an analogy?’ And if Watt found the analogy to slavery uncongenial, I offered him another explanation, safely distant from anything racial: Once we are clear on the “principle” by which a ball rolls down the inclined plane—that the velocity is related to the angle of inclination—then we needn’t ask, “Have you tried this with the yellow ball [or] the blue ones? [I]f you are clear on the principle, then you are clear that the principle will not be affected even by the numerous instances that arise under the law.” Or to put it another way, if there is really a principle engaged, that principle will cover all of the instances that may arise. If it is wrong in principle to turn away from people on the basis of race, then we would not need a new principle for the discrimination that takes place in drugstores and tennis courts. And if it is wrong to withhold medical care from a newborn infant, simply because he has survived an abortion, there is no conceivable set of circumstances in which that withholding of care could be right.
When the day of hearings had ended, the word spread quickly on Capitol Hill that our side had done well—that the arguments were tellingly made and the challenges rebutted. Five days later there was a meeting of the full Committee on the Judiciary for the sake of “marking up” the bill. After some initial attempts to modify or soften the bill—attempts that were voted down at every point— the opposition finally receded, and the bill was voted out by the committee 22-1. Only Watt continued to hold to the fiction that the bill was simply too extensive in its reach to be enacted with such unseemly speed. But in the meantime, some notable Democrats still abstained rather than vote for this bill. Among them: Barney Frank, Maxine Waters, William Delahunt, and Robert Wexler.
A few days later, at the Republican National Convention in Philadelphia, I encountered a pro-life congressman from New York, who reported on a conversation he had overheard among two of his colleagues: Jerry Nadler was trying to explain to a resistant Nita Lowey that the Democrats could not vote against this Canady bill, that it was a trap. The bill planted premises that were unsettling, but it was still modest in its reach, and the Democrats would run serious risks in voting against it. The public might have had its senses dulled now on the matter of abortion, but even the public in its current state was likely to notice if the Democrats suddenly came out force-fully against the prospect of preserving the life of a child born alive.
With the bill cleared through the committee, it can come to the floor in September when the presidential campaign is getting under way. And unless Trent Lott, the majority leader, en-gages in his usual, stylish blundering, the bill could come to the Senate and command a vote. Among the people who would be compelled then to face the question would be Sen. Joseph Lieberman of Connecticut.
In the meantime, the ground has been tested, and the argument con-firmed: Congressmen on the other side are quite conscious of the fact that this modest bill can subvert their whole position, and yet, at the same time, they cannot put on a public display of voting against it. Their best move is to hope that the bill goes through without the public or the media paying much attention. To that end, the best tactic for the partisans of abortion is to avoid the kind of public argument that would bring home more fully to the public the real import of this bill.
To the vast credit of the Republican congressmen on the other side, they have sensed the strategy taking hold among the Democrats, and they have responded by making it harder for the “pro-choicers” to avoid the argument. They have said, at different points, that this modest bill is indeed but the “first step” and that others, in time, would follow. They have also been resolute in resisting any attempt to amend the bill, diminish its meaning—and make it in any way easier for the defenders of abortion to vote for the bill.
The academics who had urged this bill had persistently favored a “preamble” that would make quite explicit the premises we had hoped to plant. But the leaders of the committee, seasoned and chastened in their experience, were quite hesitant to come forth with those premises blazing. The fear was that such a display would cause an erosion of support among the fence-sitting Republicans and draw a veto from the president. And yet, as the Republican leaders now see the Democrats edging away, they have seen the need to tighten the screws and compel the Democrats to have that argument after all. What they are contemplating now is a move to amend the bill with a list of “findings.”
With these findings, the committee might make explicit the premises that it would plant now in the law, the premises it could bring back again later, in other bills, dealing with the child even before birth. With each “finding,” the leadership could earnestly ask, “Is this not the basis on which Congress is acting? If not, vote it down. And tell us, in turn, the basis on which you are acting now.” The committee might offer, then, this list of findings, as a way of explaining the grounds of its judgment:
• “The child has a claim to the protection of the law that cannot pivot on the question of whether anyone ‘wants’ her.” (Do we have that wrong? Or are you protecting the child only when it pleases you or serves your interests?)
• “The child then must have an intrinsic dignity, the source in turn of rights of an intrinsic dignity; rights that cannot depend on the convenience or interests of anyone else.” (If that is the case, then the rights of the child, even earlier in pregnancy, cannot depend on matter as contingent and “extrinsic” as where she receives her nourishment or whether she is two weeks, or two months, short of birth.) “In that case, the injuries of the child count—they deserve at least some weight in any attempt, common to the law, to balance interests or injuries?’
• “If the judicial branch can articulate new rights under the Constitution, the legislative branch must be able to vindicate the same rights, on the same basis in the Constitution. And in filling out those rights, the legislature must have the authority then to mark its borders or its limits.” (If the Democrats reject that proposition, they reject the ground on which they may act in the future in trying again to enact, in a statute, the rights declared in Roe v. Wade.)
• “What should not be tenable under the Constitution is that the Supreme Court may articulate new rights—and then assign to itself a monopoly of the legislative power in shaping those rights. Again, what the judges may declare as rights, the legislature must also have the authority to protect and shape.”
In principle, these are propositions that not even the Democrats, or the defenders of abortion, should be in a position to reject. But reject them they will, for these propositions are quite at odds with the freedom that is regarded by the Democrats now as the freedom that overrides all others, the freedom to choose abortion. If I am wrong, and the Democrats accede to these “findings?’ our ends would be secured even more firmly But if, as we suspect, the Democrats resist, we are likely to lure them in, after all, to the argument they have used all their arts to avoid.