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A little more than a week ago, on July 18, the Democrats in the Senate permitted the reading and the passage of the Born-Alive Infants Protection Act, an act that seeks to protect a child who survives an abortion. The Congress could have accomplished something comparable with the bill on partial-birth abortion. But Bill Clinton vetoed that bill, and the Supreme Court struck down the similar bills passed in the states. There is now a president who will sign the bill, and yet even Bill Clinton would have found it hard to veto a bill as simplified and modest as the Born-Alive Act. No one except the radical feminists in the National Abortion Rights Action League had the touch of madness to oppose this bill, for no one except a crazed zealot would profess any doubt about the "human" standing of the child at the point of birth. Not that the members of NARAL have any doubt on that score themselves. It is just that they are willing to assert, with radical firmness, the right of a woman to destroy the child in her womb as a matter solely of her own interest, and the triumph of her own will. But the feminists at NARAL were also moved to passionate opposition because they understood this bill better than many of its supposed friends among the Republicans, for they understood its animating principle. As modest as it was, the bill planted premises that ran deeper than the bill on partial-birth abortion. Indeed, it could be said that, with this bill, the Congress now prepares an even firmer ground for revisiting the bill on partial-birth abortion and insisting that the courts take a sober second look. Judge Richard Posner had twitted the drafters of the bills on partial-birth abortion: Those laws had never claimed the authority to protect the child herself, and so, he asked, why would the state have any compelling interest merely in shifting the killing of the child from the birth canal back to the uterus? With the Born-Alive Act, the Congress fills in that missing step: The child marked for an abortion is recognized now as an entity that comes within the protection of the law. When Bill Clinton vetoed the bill on partial-birth abortion, his concern was entirely for the feelings and health of the pregnant woman. Somehow that other being, the one whose head was being punctured, and the brains sucked out, never came within his sight. For the law, and for Clinton, the child was not there; her interests simply didn't count. The Born-Alive Act accomplished its work in the most delicate way, without any contrived theories of the Constitution. The drafters took their model from the Defense of Marriage Act of l996: Congress surely has the authority to pronounce on the meaning of terms in the federal code, which Congress, and only Congress, can legislate. Congress could then stipulate that by a "marriage" it meant a legal union of a man and woman, known as "husband" and "wife." In the case now of the child who survived an abortion, the Congress simply stipulated that the term "person," used in the federal code, and in federal regulations, "shall include every infant member of the species homo sapiens who is born alive at any stage of development." And the meaning of "born alive," set forth in terms to guide lawyers and judges, clearly encompasses "the expulsion or extraction [of a child] as a result of natural or induced labor, cesarean section, or induced abortion." (Italics added)] And that is all. The bill is spare — and truly momentous. For it provides a predicate that can be built into the foundation now of every subsequent act of legislation touching the matter of abortion: that the child marked for abortion is indeed a "person" who comes within the protection of the law. The irony, though, is that this bill could be enacted only on terms that barred its sponsors from proclaiming, or even explaining, the things that made it such a landmark. Once the control of the Senate shifted to the Democrats, the bill had little chance of being introduced, even though it commanded wide support in both parties. The initiative, and the moral conviction, came from the House, from Charles Canady, the former chairman of the Subcommittee on the Constitution, and his successor, Steve Chabot of Ohio. Congressman Jerry Nadler (D, N.Y.) had the wit to see that the Democrats would embarrass themselves by voting against the bill, even though Nadler could not restrain himself, at every turn, from denouncing the bill, and the Democrats in the House and Senate clearly hated it. The Democratic strategy was just to go along — to avoid embarrassing themselves by voicing their opposition, and by giving the pro-lifers the argument that they evidently wanted. For that argument would only draw attention to the bill. By playing rope-a-dope in that way, the Democrats could snatch a victory of sorts from this political trap: The bill might pass, but without the kind of debate that would establish the meaning, or significance, of the bill. IN
NEED OF MEANING And yet, the astonishing thing is that the Democratic leadership allowed the bill to come up at all and be passed, rather than buried until the end of the session. The seasoned watchers of Capitol Hill guess that the Democrats didn't want the responsibility for killing a bill that seems sensible even to people who are "pro-choice" on abortion. In this construal, they might have reasoned that it was better to deprive the Republicans of the issue — they could clear the bill away briskly, as a measure that merits no discussion and bears no significance. The real puzzle is why the Republicans were so willing to acquiesce in this scheme to help the Democrats escape from a political bind. In the Senate, Rick Santorum had little choice; the main cave-in came in the House, in the decision to remove the "findings" that would have made the premises of the bill explicit. Two years earlier, the attachment of those premises, spelled out, stirred a panic among the so-called Republican moderates, who threatened to join with the Democrats in adjourning the House. It stood to reason that if those premises were spelled out again, a large hunk of the Democrats could not have made themselves vote for the bill, regardless of anything Jerry Nadler had to say. The chairman of the Judiciary Committee in the House, James Sensenbrenner of Wisconsin, probably figured that he had enough trouble on his hands without igniting an explosion in the House. But a couple of years earlier, Charles Canady of Florida wondered why those "findings: would cause such political strain: Did the members really think that there was a constituency for infanticide back in their districts? For the findings simply pointed out that it hardly made sense to vote for this bill unless one was implying: that the child marked for an abortion, but born alive, has a claim to the protection of the law, and that claim cannot pivot on the question of whether anyone wanted her. If that premise was not true, the Democrats were open to correct it: Do we protect the child because it pleases us to protect her — and would we cease to protect her when it ceased to please us? But if the child has a claim to the protection of the law, that must mean that the child has an intrinsic dignity, which cannot be contingent on her location, or on whether her existence serves the interest of anyone else. In its immediate, practical effect, the bill was aimed to combat the judgment expressed 25 years ago, in Floyd v. Anders, by Judge Clement Haynsworth. A child had survived an abortion for 20 days, and when the question was put as to whether there had been an obligation to preserve its life, the answer tendered by Haynsworth was no. As he "explained," that was not a child but a fetus, and "the fetus in this case was not a person whose life state law could protect." In other words, the right to an abortion was the right to an "effective abortion" or a dead child. In its draft of the findings, the Subcommittee on the Constitution repudiated that very claim, for it had ample reason to think that Judge Haynsworth's opinion was not an anomaly. Two years ago, a federal court struck down the bill on partial-birth abortion, with the opinion written by Judge Maryanne Trump Barry, the sister of Donald. Judge Barry treated with contempt the claim to protect the child at the point of birth, for the notion of "birth" she regarded now wholly as a matter of perception. And so she denied the premise that "the fetus is in the process of being 'born' at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth." This was postmodernist jurisprudence with a vengeance. There were no objective facts, only theories. Since a woman willed an abortion, there was no birth, and no baby there to be born. What Judge Barry's opinion made chillingly clear was that Judge Haynsworth's opinion, years ago, was not an aberration. His understanding was being installed right now, by many federal judges, as the reigning orthodoxy for the courts. The "findings" would have helped in making these points, and conveying the significance of this bill. But even now there is a chance to salvage the situation, for even now the President could say something to mark, for the public, the meaning of the bill as he prepares to sign it. The president could strike a bipartisan posture to celebrate a collaboration of the parties: People of moderation of both parties have come together to affirm that, whatever else the "right to abortion" means, it surely cannot mean the right to take the life of a child at birth. Every right has its limit, and with this modest step, both parties can establish that there is a limit to the right to abortion that even pro-choicers will acknowledge. At the same time, the parties will have established that Congress has the authority to legislate on this vexing subject. From the mass of 1.3 million lives taken in each year, we simply try to preserve at least a handful of lives. Who would find fault in that — and the president finds his strength, his own, strongest voice, in explaining just why we would save a handful of lives within our reach. If he does, the Democrats could hardly complain without courting the embarrassment that they have sought so cagily to avoid. The deep worry, of course, is that if nothing is said, the Democrats will have won. More than that, they will have finessed a remarkable victory from what figured to be, for them, a certain disaster. For who would attach any meaning to a law, when those who enacted it did not proclaim it, or even made some noticeable effort to impart its meaning to the public. In the absence of anything said officially, the meaning of the bill can be marked only in commentaries of the kind I have set down here. But such commentaries are as nothing, compared to the simplest words spoken by the president, for those words are spoken with the authority of his office and they have behind them the weight of the Executive branch. It is precisely at moments of this kind, with the moral questions thickening, that Mr. Bush has often shown his surest touch. My own hope is that he will redeem the efforts and the sacrifices made for this bill, and speak finally, at this moment, some telling words of his own. — Hadley Arkes is the Ann and Herbert Vaughan Fellow at the Madison Program, Princeton University. He is one of the architects of the Born-Alive Infants Protection Act (which was first floated in National Review, and a partial memoir of that bill is contained in his new book, Natural Rights & the Right to Choose. |
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might not have heard the news, for the Times and Post and
the networks have not thought it something useful for us to hear: But
for the first time since Roe v. Wade, the Congress will
have enacted, and a president will have signed, a bill that marks a limit
to the "right to abortion." 
