Life Watch: Canady Bill Advance–But Will Bush Speak?

The Born-Alive Infants Protection Act was brought to the floor of the House on September 26, but it was delayed until 7 p.m., debated for 40 minutes, and then passed by a vote of 380-15. An overwhelming success? Or a vote much larger than we had needed or wanted? Therein hangs a tale, and not an edifying one; not, at least, a tale we expected to tell.

On the eve of the vote, the strategy of the Democrats was marked out by Rep. Jerry Nadler (D-N.Y.): Play rope-a-dope; simply ride with the punch, vote the bill in, but offer no argument, draw no attention to it. Yes, the bill strikes at the very premises of Roe v. Wade, in recognizing an intrinsic dignity even in children tagged for abortion, a dignity that calls forth the protection of the law. But the bill would also make very little change in the law as it is, and the partisans of abortion could claim that, of course, the law recognizes a child as a human being only after it has been born.

Still, the National Abortion Rights Action League (NARAL) had not withdrawn its statement of opposition to the bill. The sense seemed to spread quite remarkably, throughout the Congress, that a vote for this bill was a vote against Roe. Clearly, the people on the other side found the bill abhorrent, and quite as clearly, they were afraid to vote against it. If the situation had been reversed—if the pro-lifers had been in such a vulnerable position no one with experience could doubt that the party of abortion would have pressed their advantage, and squeezed ever harder. Our side now determined to do exactly that, and make the bill a little harder to vote for. The purpose of this modest bill was to plant premises in our law, and in our earlier plan, we had wanted to state those premises in a preamble, comparable to the preambles of old, which stated the purposes and premises of a legislative act. But the managers in the House feared that such a preamble would be too provocative—that it would invite a veto and even stir uneasiness among some Republicans. Yet, when it was evident that congressmen were afraid to vote against the bill, that the bill was moving through too easily, this seemed to be the moment when we could revive those “premises” of the bill, in a statement of “findings,” added as an amendment.

At the same time, it could honestly be said that if these premises were not right, it was hard to see why anyone would vote for this bill. We would say then, in words quite familiar to the readers of this column, that the child has a claim to the protections of the law that cannot hinge on the question of whether anyone happens to want her. Now, we might ask, do we not have that right? Is that not how congressmen would understand what they are doing when they are voting for this bill? Or would they say rather, “We protect this child because it pleases us to protect him or her, but we may decline to protect the child when it no longer suits our pleasure or our interests”? The same questions could be posed about any of the other findings, which became the handiwork of Brad Clanton, the resourceful and deft counsel to Rep. Charles Canady, the author and manager of this bill. As the findings continued, they took note of the recent decisions of the Supreme Court, and lower federal courts, nudging the country ever closer to an acceptance of infanticide outright. And so the findings went on to make clear that among the purposes of the bill would be:

  • to repudiate the flawed notion that the right to an abortion means the right to a dead baby, regardless of where the killing takes place.

  • to affirm that every child who is born alive—whether as a result of induced abortion, natural labor, or cesarean section—bears an intrinsic dignity as a human being that does not depend on the desires, interests, or convenience of any other person and is entitled to receive the full protections of the law.

If these kinds of reasons do not stand behind the vote for this bill, it would be hard to imagine what the bill would mean. And yet, if anyone ever claims hereafter that reasons make no difference in politics, the experience of this bill should refute that claim forevermore. For the circulation of these findings had the effect we had anticipated—and even more. There was nothing less than an explosion of outrage. It may stand, in itself, as a measure of our current culture that congressmen should be inflamed at the notion of declaring that a child born alive has an intrinsic dignity, with a claim to the protection of law. Or that some congressmen should feel much set upon when they were asked to cast a vote against…infanticide! Yet, some Republicans, hanging on in marginal districts, pleaded with the leadership not to make them vote on such a measure. Eight years earlier, the lobbyists at National Right to Life thought this bill so mild that even Nancy Johnson (R-Conn.) would vote for it. But Nancy Johnson, on September 26, was in a flying rage, a distemper she would preserve in her remarks on the floor, where her eyes cast thunderbolts and her words spat out anger.

That morning, before the vote, Johnson and about 35 to 40 so-called Republican “moderates” met with the leadership and delivered this ultimatum: If the bill went to the floor with the “findings,” the dissident Republicans would join with the Democrats in adjourning, or closing down, the House. The Republican Party in the House had bent over backwards not to give Bill Clinton an excuse to close down the government again. And yet the so-called moderates were willing to risk closing down the Congress and embarrassing their party if the House should do anything as audacious as declare that the child marked for an abortion has an intrinsic dignity, with a claim to the protection of the law.

The remarkable thing is that the Republican leaders did not summon the conviction or the political sense to settle down members who were panicking. Instead, they gave in. In fairness to the leadership, it might be said that they were dealing with a thin margin of five or six seats in the House. And when they are trying to hold the House, they must become sensitive to the claims made by their colleagues about the things that make life harder for them in their own districts. No less a person than Henry Hyde has been quick to appreciate that we cannot advance any pro-life legislation if we lose a Republican majority, and that majority cannot be preserved without protecting “pro-choice” Republicans. That is at once the alchemy and the irony of political parties.

The bill then went to the floor without the amendments, and it sailed through. Only Johnson and Ben Gilman (R-N.Y.) voted against it on the Republican side. Our concern was that a vote with this margin would make it easier for Al Gore and Joe Lieberman to endorse the bill. Of course, an agile candidate in opposition could then press Gore and Lieberman in this way: “You admit now that the child is an entity, whom the law can protect, and the child can be protected at the point of birth. In that event, why would you not vote to protect the child ten minutes earlier, in a partial-birth abortion? You have no doubt, after all, that the child then is every bit as human as the child you would protect now.” But that follow- up depended on a candidate who was willing to engage the argument, and so far, there had not been a word from the pro-life candidate in the presidential election.

On the eve of the vote in the House, our friend, George Will, had come forth with a fine column in Newsweek, carrying this headline and subtitle: “A Question for Al Gore…. Does a woman having an abortion have a right to a dead baby, even if it is born alive?” Will suggests that this is the first question that George W. Bush should ask of Gore in their debates: “Do you favor the passage of the Born- Alive Infants Protection Act?” or would he stand with NARAL in opposing that measure?

In the aftermath of the vote in the House, the Washington Post carried absolutely no account of the bill, its meaning, and the controversy that surrounded it. It hardly seems conceivable, however, that the Post could have pre-served this blackout of the news if the Republican candidate had endorsed the bill, or pointed it up as a measure that would strain the coherence of the Democrats. The followers of this column know that the main rationale for that bill has been to affect the public argument, and with it, the understanding of the electorate. But that purpose was undercut when the pro-life candidate was not willing to talk about a bill even as modest as this one.

On the other hand, this churning about by others may actually prepare the ground for Bush to speak. When he does speak, people will not be scratching their heads, wondering what he could possibly have in mind. But when would he finally speak? Perhaps he would spring the issue on Gore during the debates. By the time this column appears, we will have learned the answer to that question.

But the events recorded here offer a chilling piece of evidence of how far the culture of abortion has extended, and in the face of that evidence, the reticence of Bush should not offer the slightest distraction, or excuse, to anyone who regards himself seriously as pro-life. That evidence is all around us and cannot he misread. If Gore appoints three judges to the Supreme Court, the cause of the unborn will suffer an irrevocable loss. No functional person, by this date, should suffer any confusion as to where now, politically, that cause finds its home and its vehicle. Neither should he be suffered for a moment if he laments, sometime in a Gore administration, “If I had only known.” By this time, in the seasons of our experience, there is no ground for not knowing.




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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