Life Watch: Opening the Argument—Round Two

For the past three presidential elections, the pro-life party has had at its head a candidate who was quite plainly uncomfortable in talking about abortion. But that very reluctance made it certain that the press would go after him and press him to speak. If there is, in our politics, any certainty we can count on, it surely would be this: The question of abortion is bound to be raised during the debates, and the journalists will expect the Republican candidate to be bumbling and defensive. The question then is whether Gov. George W. Bush can turn these expectations to his advantage by administering a surprise: Could he take a position that is disarming, a position radiant with “moderation,” even while he would move us firmly in the direction of expanding the protections of the law for the unborn child?

Thanks to Rep. Charles Canaday, a position of that kind is already on the table in the House of Representatives: the Born-Alive Infants Protection Act (H.R. 4292). As I have argued since the origin of this column, that bill would offer the most modest first step of all—the proposal simply to preserve the life of the child who survives the abortion. More moderate than this it is not possible to be. At the same time, this bill would plant the premises that could conceivably unravel the whole pro-choice position: The claim of the child to the protections of the law cannot pivot on the question of whether anyone happens to want her; the child is a real entity, whose injuries count; and Congress can lay hands on this subject—it can legislate in this field and begin to mark the limits to that “right” to abortion.

As I suggested last month, Bush can invite Al Gore to enter a conversation and join him in protecting, at this clearest of all points, a child involved in abortion. Bush could give voice again to the sentiment he has echoed from Fr. Richard Neuhaus: the hope that, one day, all unborn children may be welcomed and protected. But in the meantime, he might say, we can work step by step. Bush can earnestly profess not to know just how far we will advance in that chain of steps. He can say, “All I know is that these are babies we are talking about. We protect newborns now, don’t we? I suggest that we get away from the slogans and recognize what we can see with our own eyes—that we are dealing with babies. Why don’t we start then simply by protecting lives where almost all of our people are willing to protect them?”

Gore has never been a fool on these matters, and he would be quick to see where this position would spell trouble for him. He might try to deal with the argument right away, not by quibbling over the conditions but by exposing the radical interior that lies behind the surface of moderation. He might say, “All of this sounds reasonable, and it’s something we can all go along with, but what is the ultimate purpose in Gov. Bush’s plan? It sounds like an innocent first step—and who couldn’t approve of saving the lives of children? But it is a first step that brings the government back into the business of determining when women are free to end their pregnancies. That right was hard-won, and it took years to win it. And so I’d have to ask Gov. Bush in turn, Why should you and I as men, and as potential heads of the government, be talking about this at all? Should it not remain the woman’s choice?”

Bush: Perhaps the vice president wasn’t listening. I said that my hope is that, someday, the American people will want to protect all children again, born and unborn. What is the vice president afraid of—that, at each step, we might actually talk ourselves into protecting the lives of more children?

The question I’m putting is whether we cannot draw the line on abortion at outright infanticide. If we can’t do that anymore as a people, I don’t know where we are. Even the people who are pro-choice don’t insist that their rights extend this far, but we have the most radical abortion laws in the West. The law, which the vice president and his administration defend, allows abortion through the whole pregnancy, for any reason at all; and even if the baby comes out alive, there is no obligation to protect its life. I might put the question to Mr. Gore, in turn: A child may be born now to a poor family, and it may be born with Down’s syndrome. But I haven’t heard you say that it should be the “choice” of the mother or father as to whether that child is permitted to live. Even you won’t honor their “choice” at that point—and why not?

Gore: Because everyone knows that the child is a human being.

Bush: Even if it isn’t “wanted”?

Gore: Yes, even if it isn’t wanted—we know it’s human.

Bush: And so, when we know a child is human, it can be protected by the law. Well, you had a good education, Al, at Harvard—I went only to Yale: What did you learn then about the species of that being in the womb? Is it something other than human at an early stage, and does it turn human later? Or has it been human all along?

You said years ago that abortion was such a hard choice because the unborn child was “arguably” human. Well, how has that argument played out for you, Al? What have you decided? After all, if the baby were an orange or a pigeon, we wouldn’t be troubled so much about the problem of removing it, would we? It’s an agonizing choice only because people realize that a woman is pregnant with a child. But as you say, as soon as we know it’s a human child, we should be able to protect it, even if it isn’t wanted. Our people are not sure about many things, but why shouldn’t we start by protecting even a handful of lives, where everyone is willing to do that?

Gore: Well, I still think it has to be the woman’s choice, and so let me put this question to you: Let’s say we all agree that we can protect the child who is born alive. Can we ask you in turn to support a bill that would confirm to women the rights that were established in Roe v. Wade? Your party has always resisted the Freedom of Choice Act, and the attempt to enact those rights into law.

Bush: But again, which rights are we talking about, Al? Most people in the country haven’t been aware that, with Roe v. Wade, and its companion case of Doe v. Bolton, the right to abortion extends through the entire pregnancy for any reason. Even people who call themselves “pro-choice” don’t think that’s right. That is a policy of abortion on demand, at any time, for any reason. Is that what you want us to enact in a statute, Al? If so, we ought to get clear on that, because I don’t think most of the American people would follow you there.

Gore: Gov. Bush knows as well as anyone that Roe v. Wade allowed the states to start protecting potential life in the last trimester of the pregnancy, and several states already have laws that do just that. This bill he is proposing isn’t even needed.

Bush: But the vice president should know that none of these laws has been tested in the courts. We haven’t had a single case of a law in the states restricting an abortion late in pregnancy—and the courts sustaining that law. The vice president ought to know about these things: This is what he’s meant in the past when he said there was “no controlling legal authority.” We may have laws on subjects like soliciting money for campaigns, but he wasn’t sure just how valid they were until they had been upheld by courts. He should know then that there is a serious question here. The Supreme Court held in Doe v. Bolton that the states might restrict abortions late in pregnancy but that an abortion could still be ordered up if it were necessary for the health—including the “mental health”—of the pregnant woman. In other words, if a woman would be distressed in not having the abortion, she could still have it.

Gore: Well, I think a woman should in fact be the judge of her own health and whether she is threatened by a pregnancy.

Bush: All right, but you can’t say at the same time that this bill of ours isn’t needed because we can restrict abortions in the last months. It’s not clear that we can, really, restrict them at any time. But let’s suppose you’re right, Al—and let’s test it: After we pass this bill to protect the child who survives the abortion, why don’t we join together in passing a bill to bar abortions in those last months of the pregnancy, when most people think they shouldn’t be done? Even the Supreme Court has suggested that the laws could protect a child at the point of “viability”—say around 22 to 25 weeks—but we can leave that for another day. I’m willing to take small steps now, just to get the conversation going.

Gore: What you really want to do is roll back altogether that right to an abortion. And once we take that first step, we would be moving in that direction.

Bush: I don’t want to “roll back” anything that people have a rightful claim to do, but that is what the argument is about. I really don’t know what you are afraid of. If we move step by step, we move no further than the American people want us to move. If most people, say, accept abortion to save the life of the mother, why would they not vote to sustain that right? In the meantime, things seem to stand in this way: I would be satisfied if we could save one or two, or a handful of lives; but it appears that you and your friends are unwilling even to protect a child at birth if it means restricting even a single abortion. Who is the fanatic here, Al, and who is the “moderate”?

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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