Life Watch: Diary of a Hearing

July 20. The day had finally come: the hearings, in Congress, on “the most modest first step of all.” Rep. Charles Canady (R- Fla.) would be presiding over the Subcommittee on the Constitution of the House Committee on the Judiciary, and he would be guiding the committee in considering the bill that he himself had introduced, the Born-Alive Infants Protection Act. Readers of this column have come to know quite well the rationale for this bill to preserve the lives of infants who survive an abortion. Some pro-life groups, such as National Right to Life, had been deeply skeptical about a measure as modest as this. They knew that the bill ran deep, in the premises it planted. But they couldn’t believe that the other side would actually contest it. We would dare the partisans of abortion to acknowledge that they understood the right to abortion as nothing less than the right to an “effective abortion” or a dead child. Or, they could take this first step with us in finally drawing a limit on that right to abortion. But we knew they could not make any concession in principle to the point that a child marked for an abortion had a claim, at any time, to the protection of the law.

Still, our friends had been skeptical. But now, National Right to Life had joined us, and wonder to behold: The Democrats would not support the bill. And on the morning of the hearings came the most confirming news of all: The National Abortion Rights Action League (NARAL) issued a press release proclaiming its opposition. NARAL read the bill as another insidious attempt by the enemies of “choice” to undermine the right to abortion. In that it was perfectly right, and it has been quite sensitive to anything that undermines its position in principle. But the Democratic congressmen were caught in the crosswinds, trying to gain their footing. Even they could not be as free as NARAL to oppose, so blatantly, a measure that would preserve the life of a child born alive. They knew they had to vote against it, but they would try, in the hearings, to feign problems in enforcing the act, without confronting the principle that the bill was trying to test.

The staff of the committee gave me the privilege of opening the testimony and framing the problem. The arguments, sounded often in these pages, were now given a deeper resonance, however, by the timing. Just three weeks earlier, I had sat in the Supreme Court to hear Justice Breyer hand down the decision in Stenberg v. Carhart, in striking down the bill banning partial-birth abortion in Nebraska. Clark Forsythe, of Americans United for Life, pronounced that decision as the most radical yet in all of the cases dealing with abortion. For the Court now established, in effect, that the law may not protect even a child at the point of birth if that move might— just might—inhibit an abortion. With that move, the Court brought us to the threshold of proclaiming that the right to abortion does indeed entail a right to infanticide outright. But not merely the threshold. The Court was actually there; it was merely a matter of delicacy that held the judges back from unsettling the public by making too explicit what they had just done.

For in Justice Breyer’s reasoning, the procedure of partial-birth abortion was arguably safer for the mother because no instruments were introduced into the uterus, where they might puncture the wrong organs. And since the baby was removed, so to speak, intact, there would be no dismembered parts left behind, in a woman’s body, where they might cause infection. By that reasoning, it would be even safer for the pregnant woman to have the “live-birth abortion” described by Jill Stanek, a nurse at Christ Hospital in Oaklawn, Illinois. Delivery is induced early for the sake of bringing forth a premature infant with almost no chance of survival, and the baby is left to die. Breyer’s opinion offers no moral barrier to the use of that “procedure.”

The Court has brought us then to the threshold of a crisis even graver, and we would simply miss the point if we sought now to draft legislation even tighter, more precise, on partial-birth abortion. This issue of infanticide we must have out now, explicitly, decisively, before we can ever return to the issue of partial-birth abortion. I pointed out to the committee that Congressman Canady’s bill engages the question at the earliest moment when the interests of the mother can be detached from those of the child. Strictly speaking, nothing in this move to protect the child would impair any right to abortion, or right to end a pregnancy, for the abortion and the pregnancy would have ended. But this simple measure would establish these simple, though momentous points: that the child bears an intrinsic dignity, which cannot depend on the interests or convenience of anyone else; that her claim to the protection of the law cannot pivot on the question of whether anyone happens to “want” her.

It must stand as one of the oddities here that the opponents of this measure seem to grasp its reach far more quickly than some of our friends in Congress. One notable pro-lifer feared the bill would establish that personhood began only at birth. But the bill does no such thing, and as I pointed out in my testimony, the premises planted here must be projected back into the earlier stages of the pregnancy: After all, if the child bears an “intrinsic” dignity, that dignity could hardly be affected by anything as contingent or “extrinsic” as whether she is only two days or two weeks before birth. Neither could it matter as to where she is lodged and just how she receives her nourishment.

I would be followed in my testimony by Jill Stanek and her former colleague, Allison Baker, who have served in a hospital doing live-birth abortions. They brought in vivid testimony of babies diagnosed in the womb with Down’s syndrome or spina bifida—and diagnosed, in one case, wrongly. The babies were delivered early as “therapeutic” abortions, and even though they survived for several hours, with beating hearts, they were given no care. In one case, the baby was left on a metal counter in a “soiled utility room,” with no covering. It was just naked, exposed, moving arms and legs, waiting to die.

Stanek’s testimony offered the telling response to the question posed by Congressman Jerry Nadler (D-N.Y.), as to why the law is even needed. As Nadler pointed out, it would be against federal law now to withhold medical care from newborns. But evidently, many doctors and hospitals do not understand that those laws apply to a child who has survived an abortion. One way or another, they have absorbed the notion that the right to an abortion is the right to a dead child.

The Canady bill would simply oblige doctors to provide, for children who survive an abortion, the same medical care that is provided for other newborns. The bill does that by bringing these newborns under the category of “persons” protected by federal law.

My friend, Gerard Bradley, of the law school at Notre Dame, used his testimony to remind the committee of these axiomatic points: If Congress can offer the protection of the law against assaults, or the confiscation of property, it must be able to define the persons who are the objects of that protection. And so, “tax break for taxpayers who choose to count pets as ‘children’ won’t do, nor will tolerance for heads of households who wish to include houseplants in the census.” Bradley went on to show that the “born alive” rule had to be implicit in all discussions of abortion in the law, for it had to mark the difference between prenatal and postnatal life. Even terms such as “viability” and “potential life” made sense only in relation to birth.

After the panel heard from neonatologists, another friend, Robert George of Princeton, closed the testimony. He noted the drift, in the academy, toward the more explicit and assertive defense of infanticide. We could not blind ourselves to the fact that a climate of opinion was being shaped, in respectable circles, to break down our lingering “prejudice” against infanticide. Against that trend, George would assert the principles of the Declaration of Independence—that all human beings are created equal, as children of God, with an intrinsic worth; that our most basic, or natural, rights come into being “when we come into being.”

Even the argument for “abortion rights” would lose its force if its advocates sought to deny these premises, which establish the ground on which we would claim to hold any of our rights. But if the partisans of abortion affirm these principles of the Declaration, they dissolve any claim of a “right” to take an innocent human life. Congressmen Nadler, sensing the double edges in the bill, counseled the “pro-choicers” not to make an issue out of it—not to strike a posture of opposing the protection of a child born alive. The bill, he thought, would make very little change. He was, of course, right, but the women who make their livings by defending abortion rights seemed to be far more sensitive than he to the real reach of the principle.

Still, Nadler, pondering the puzzle, was the most sensible Democrat in the room. The others responded with truculence and rudeness. Some did not have the wit to understand the answers tendered to their questions, and so they would cover their embarrassment by shouting out of sequence, and falling into a malevolence thinly disguised. That makes for another story, worth recounting.

But in the meantime, as Robert George remarked, George W. Bush seems to be the young boy who does not know how to accept a Christmas present. We have now shaped the issue of abortion in the way that makes it easier than ever to present to the public. All Bush needs to do is put the question to Al Gore: “Are you with NARAL here, as you are everywhere else, Al? Do you, too, agree that this ‘woman’s choice’ cannot be limited without being denied, and that it means nothing less than the right to a dead child?” That small question, artfully placed, could yield an effect quite surprising to the Republican establishment.

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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