Born-Alive Act Redux!

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Mirable Dictu: The Born-Alive Infants Protection Act is back again, in another iteration. And it was among the very first things enacted by the new House with the Republicans back in control. But why is it back again? The original bill, enacted in 2002 was tagged as the “most modest first step in legislating on abortion”: the bill simply to protect the child born alive who survives an abortion. The new bill, the Born-Alive Survivors of Abortion Protection Act, was brought forward to restore the serious penalties, criminal and civil, which had been stripped from that earlier bill. This was actually the third time that the bill had been introduced and passed with Republicans charge of the House. The first time came in September 2015, the second in January 2018, and the three sets of votes confirm the dramatic transformation that has taken place in our political parties. All three votes reveal a cohesion almost preternatural that has set in on our parties over abortion. In September 2015 the bill passed 248-177, with every voting Republican voting for the measure along with five or six pro-life Democrats and every vote against came from the Democrats. The second attempt was made in September 2018 when a Republican President could sign such a bill, and the vote ran along the same party lines, 241-183. And now, in January 2023, a slimmed down Republican majority passed the bill 220-210, with no Republican voting in opposition, and only one Democrat, Henry Cuellar of Texas, coming over to support the bill. The pro-life Democrats have virtually disappeared.

But it was not always thus. When the bill was passed in 2002, the Democrats were in control of the Senate, and the bill was brought forth by Harry Reid, the Democratic whip, who was known at the time for some pro-life sympathies. The Democrats in the House, led by the inimitable Jerry Nadler, hated the bill and spewed contempt for the people who brought it forward. But they were too embarrassed to go on the record against it. They were willing to stand back while the bill passed by a voice vote with a wave of “ayes.”

That sense of embarrassment, though, has disappeared. The Democrats have shed any quibbling about limits to abortion—whether at “viability,” at around twenty-four weeks, or the measure of a beating heart at around six weeks. They have become willing to proclaim now, without a hint of apology, that the “right to abortion” shall have no limit at all, that the right to abortion is nothing less than the right to “an effective abortion,” or a dead child.

 But how did we get to this point? On why there was a need to bring the bill back, I can speak with a certain privilege, for I was “present at the Creation.” I’ve been credited as the father of this bill, because I started making the case for it in the Wall Street Journal, National Review, and Crisis in the 90’s. With friends such as Michael Uhlmann, Cathy Ruse, and Margie Dannenfelser, I walked the halls of Congress, as we went about assembling the support for the bill in retail. The moment for the bill finally came, though, in June 2000 when the Supreme Court struck down the Act in Nebraska and thirty other states to ban the procedure known as the “partial-birth abortion”: the head of the child is crushed, the brains sucked out, and the child removed, to speak, intact from the mother’s body. When those bills were struck down, National Right to Life came behind the Born-Alive bill as the most plausible first step in having Congress legislate on abortion. And so when the hearings opened on the bill, in July 2000. I was given the privilege of leading the testimony in the Judiciary Committee in the House, in the Subcommittee on the Constitution chaired by the gifted Charles Canady from Florida.

But the first jolt came with the judgment to drop from the bill the serious penalties for killing a child born alive, surviving the abortion. That was offered as a cautious, prudent move to avert a veto from Bill Clinton, in the culminating moments of his presidency. My own sense was that Bill Clinton would not veto a bill as modest and disarming as this one. Still, the decision was made and the consolation, as Charles Canady said, was that this would be a “teaching bill.” It would plant in the law the premises that could be built upon later. The most notable was the one we had sought to place in the preamble to the bill: that even that child marked for abortion has a claim at some point to the protections of the law. And if that were the case, as the argument ran, the child must have an intrinsic dignity, which could not depend on whether its survival fitted the interests or convenience of anyone else.

But neither of those points made it into the preamble of the bill—they were just a bit too controversial, even within the Republican caucus. And because the penalties were stripped from the bill, the Born-Alive Act could be enforced only by the threat to withhold federal funds from hospitals. That became a project so convoluted as to be impracticable. In the meantime, the evidence was coming in from many quarters that there were far more babies surviving abortions—and being killed—than even we had imagined in 2002. The evidence too dramatic to ignore broke in 2010, with the discovery of the abattoir run by one Kermit Gosnell, in Philadelphia. In a clinic described by any dispassionate account as filthy, Gosnell and his staff were doing late term abortions, snipping the necks of babies who had survived. He and his wife and staff were charged with 32 felonies, while Gosnell himself was tried and convicted for three murders in 2013.

It has been persistently argued in opposition to the Born-Alive Act that the killing of these babies constituted a homicide under local law, and hence there was no need for federal legislation. But the experience in Philadelphia offered a prime example of a blatant thing held before us that we steel ourselves not to see. The cops in Philadelphia had become aware, for years, that Gosnell was running a dirty clinic with an operation that it was best not to see. Somehow the understanding took hold that something in that unseemly practice was involved with a “constitutional right,” and it was more prudent then for the local police to avert their eyes. A national law would have the signaling effect to hospitals and to local police that the child who survives abortion is indeed a victim who comes under the protection of the law.

One of the strategic reasons for the Born-Alive Act was that the American public was quite unaware that, under Roe v. Wade, the right to abortion extended through the entire length of the pregnancy–and yet more than that: to when the child was born. In one notable case in 1977, Floyd v. Anders, a child had survived an abortion for 21 days, undergone a surgery and died. The question was raised as to whether there had been an obligation to preserve the life of that child. The answer tendered by federal judge Clement Haynsworth was no. Once the mother had decided on abortion, he said, “the fetus in this case is not a person whose life state law could protect.” At my own dinner table, our late beloved friend, Eugene Rostow, the Sterling Professor of Law at Yale, nearly choked as I apprised him of these things, which came to him evidently as “news.” After all, he read the New York Times and he was left under the serene impression that the right to abortion was confined to the first three months of pregnancy. And so the strategic sense behind the Born-Alive Act was to break out news that the vast public would find jolting.

But what did I know? I had only a doctorate in Political Science, and so how could I have foreseen that the news would not break out at all. It simply never occurred to me that the mainstream media would virtually black out any such reports of newly born babies being killed as a matter of constitutional rights. The bill and the argument were not reported in the major networks or in papers like the New York Times and the Washington Post. Without major coordination from the center, the understanding was just shared by people in journalism and the media at all levels that one just didn’t cover news of this kind that could cast a grim light on abortion. For that “right to abortion” had become, for many people in the media, a “first freedom,” even more fundamental than the free exercise of religion.

And yet, the scandal of Kermit Gosnell in Philadelphia was too blatant even for the media to ignore. They would give the story a brief flash, of course, and soon consign it to the bin as “old news.” But the news from Philadelphia was scary enough to awaken the public from its slumber, at least for a brief while before the media relieved the public of any need to linger with such unpleasant things. The Gosnell case gave us the evidence and the rationale for returning to the Born-Alive Act and restoring the serious penalties that had been stripped from that Act. In our off-hours, my aide Garrett Snedeker and I called together a group of friends who had developed some expertise on this issue, working at staffers on the Hill, or in positions of high rank in the Executive. Or in the case of Jill Stanek, a courageous nurse who had blown the whistle on such killings in Chicago. With the encouragement of Trent Franks, the Chairman of the Judiciary Committee in the House, we produced a draft bill rich in details on the care that should be provided to the babies who survive—and protective of the mother who might bring charges against the staff who had operated on her. We were disappointed that the leadership in the House decided to forego hearings and go to the floor with a stripped-down version of the bill we had shaped. But the point was their willingness to move, to get the issue on the table and force a vote. Two attempts, as I say, were made, in 2015 and 2018. And now, in January 2023, the Republicans seemed to go with the same text that seemed serviceable in 2015 and 2018. The penalties were the same—and serious: whoever engages in the intentional killing of a child born alive, surviving an abortion will be subject to penalties both civil and criminal. He could be sued by the mother of the child to cover the cost of the injuries, “psychological and physical,” and with statutory damages equal to three times the cost of abortion. But on the criminal side, the abortionist could face a serious fine or imprisonment for up to five years—or both. The telling point here is that the intentional killing will be treated as a homicide under federal law.

Thus far, the bills, current and past, were identical. But then one small, momentous change came into place, making this the best Born-Alive Act ever. For the drafters took the trouble this time to address the ground of constitutional authority for the Congress to act. Most notably, they did not drag in the cliched and ever improbable line: that the people engage in this killing were affecting interstate commerce. The drafters weighed in finally on the side that the conservative majority in Dobbs would not hazard themselves to take. It was also the side that had been resisted for 40 years by the most luminary figures in conservative jurisprudence, my own late, beloved friends Robert Bork and Antonin Scalia. The drafters now offered as the ground of authority the powers of Congress under the Fourteenth Amendment. That is to say, the power of Congress to intervene when the States, through the power of law, withhold the protections of law from a whole class of people, opening them to denials of their freedom and assaults on their lives. These were the powers that the Supreme Court finally brought to recognition in the 1950’s and 1960’s, when the protections of civil rights had been massively withheld from black people in the South. In regard to abortion, though, Bork and Scalia held back because they were somehow persuaded that the Constitution cast its protections on persons who were post-natal, the people who were doing such things as fleeing prosecution or traveling in interstate commerce. For some reason my two accomplished friends found it hard to see that the rights that attached to human persons began when a live human being became present to us; that the protections in the Constitution for “life” are protections for human beings, of all sizes and ages. They were protections that is, from lawless, unjustified assaults on their lives, when local authorities held back the protections of law. Surely, James Wilson, that premier mind among the American Founders, caught the common sense of the matter when he wrote that:

in the contemplation of law life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

But this was not a premise that the conservative majority in Dobbs had put in place for the pro-life party in Congress. Indeed the conservatives in Dobbs had gone out of their way to avoid pronouncing on the wrongness of abortion or even on the human standing of the child in the womb. The majority opinion never referred to the unborn child as anything other than a “potential human being.”

Justice Alito, in a tightly drawn argument, showed that there was no principled ground on which to judge the child in the womb as anything other than a human being. But he carefully held back from drawing the conclusion that sprung from his argument and pronounced the child as a human being, with the same claims to protection that attach to any other human being. If the majority in Dobbs had explicitly made that point, and planted it now in the law, the ground would have been prepared ever more surely for Congress to act under the Fourteenth Amendment. But the conservative majority did nothing to plant that point. And in holding back in this way it did nothing to forestall a Democratic Administration from using the levers of federal power for the purpose of breaking down the barriers to abortion, even in the pro-life states—as indeed that Administration is doing now with audacity and aggressiveness.

Alito had brought us to the very edge of judgment, but in the unfathomable code of conservative jurisprudence, that task would be handed over to elected officials in the political arena, particularly in the states, to draw the moral conclusion. But, as the Republicans showed in the mid-term elections, the conservative political class has been befuddled, unsure of their footing, when dealing with this matter. And yet, here they are: back in charge in the House, they seem remarkably ready now to grasp their warrant and stake out an advanced position on the question of constitutional authority. It is a move, surely, of conviction and daring, for which none of their learned friends on the Court has helped them to establish and secure.

The Born-Alive Survivors of Abortion Protection Act, is not going to be enacted in this Congress. But it will have put a mark on the political terrain. The pro-life cause has been ill-served by having its public argument offered in the familiar script of conservative jurisprudence. And yet, through bumbling persistence, it has brought forth, in the House of Representatives, a group of pro-life politicians who somehow manage to do better than the legal professionals who have been presuming over the years to tutor them.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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