We all breathed a little easier after the second debate, for the president seemed to be his feisty self–quite engaged and responsive. He was actually fairly good on substance during the first debate, but his main problem, which persists, is in marshalling reasons and explaining his case. Of all things, he invoked the Dred Scott decision the other night–and then had trouble explaining its relevance. He had the item, but seemed to lose the larger argument in which it found its place. An even clearer illustration came on partial-birth abortion, where he could have put Kerry in the most difficult position if he had only come back at him in a relevant way. The situation is likely to return in the third debate, and so it’s worth recalling.
Kerry said that this matter of partial-birth abortion was not so simple, for he wanted provisions made to insure the health of the pregnant woman. That is where the president could have made him look uninformed, deceitful–and callous. The president could have come back at him to point out:
1. The bill on partial-birth abortion did indeed make explicit provision for the health of the mother: The bill said that the law would not apply to any “abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”
2. That provision went even further than the law was obliged to go, for as the American Medical Association testified during the hearings, a partial-birth abortion bore no relevance to any measure needed to advance the health of any woman.
3. The president could then have turned the tables on Kerry, with a question that is still worth posing: This gruesome surgery is rejected even by people who call themselves “pro-choice.” The baby is mostly out of the birth canal; no one has any doubt about the human standing of the child; and yet the head is crushed, with the child killed. And so we may put the question to Senator Kerry: What kind of “health problem” would any mother have to face before she would find her remedy in doing something like that to the child she is carrying? If the danger is life-threatening, the law protects her choice. What illnesses short of that would the senator accept as a justification for carrying out this brutal act?
If the president simply had the core of this retort, it could be telling. If he had another moment, he could point out that even for pro-choicers there are some abortions that are beyond the limit. But Senator Kerry is not willing to regard any abortion as wrong, even when it is carried out on babies at the point of birth.
–Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.