As the first Mayor Daley once said, “I have been vilified, I have been crucified, I have been…criticized!” I think I’m seasoned in receiving criticism, but it’s a bit novel to receive criticism layered with the kind of generous praise that Ramesh Ponnuru offers, even as he records his disquiet over my strategies for the pro-life side. He charges me with being ungenerous toward President Bush in my recent piece in First Things. And he leads his own piece with a report on the dramatic move of Mike Leavitt, the new secretary of Health and Human Services, when he announced the serious efforts by the administration to begin enforcing the Born-Alive Infants’ Protection Act. But of course Ramesh did not know that Secretary Leavitt had called me right before the announcement, to tell me of this move by the administration. Nor did he know that the secretary had read the piece in First Things, along with some of my other writings, and all of this came as a prelude this new initiative by the Department of Health and Human Services. The secretary had apparently learned that I had been the author of this act, and it was a lovely gesture on his part to be in touch. Quite evidently, he did not see me as an adversary of the president or of this administration. My piece had been put in his hands, after all, by some of my former students, and by other friends, in the administration; and indeed this new initiative, sprung on the world, could not have come about without the work of so many people in the administration committed to the pro-life cause and connected with me in bonds of friendship over many years.
But these recognitions were amply made in that piece in First Things: I had said that this was the most pro-life administration that we have ever seen since Roe v. Wade. Pro-lifers were engaged in the administration at every level, not only in the agencies, but in the White House itself. And I don’t have the least hesitation in counting, as a solid ally here, the redoubtable Karl Rove. As I had said in First Things, none of this was a matter of happenstance; none of this could have occurred without George W. Bush. Ramesh surely misstates the tenor and substance of the piece if he overlooks that praise of what President Bush has accomplished. But he also gravely misrepresents the piece if he overlooks, at the same time, the account that was given of the very little that was asked of the president–and I do mean “little.”
The things urged on the president were scaled back to the slightest, simplest things that could be requested, and yet it was made clear that even the slightest things were too much to ask. Such as what? What about simply informing hospitals and clinics that there was such a thing as the Born-Alive Infants’ Protection Act–that it was against the law now to withhold medical care from a child who survived an abortion? Even this year, administrators at hospitals professed not to know of this law. In the spring of 2003, we thought we had an agreement at the White House that the secretary of Health and Human services would issue such a circular. Why did it take nearly three years? And why did the press to make this move have to come from the Congress, or from people outside the administration? Why not from the White House?
But then, for that matter, what of the act itself? What could have been simpler for a pro-life candidate to talk about than the most modest first step of all, a proposal to preserve the life of a child who survived an abortion? Even a Republican candidate not very adventurous could have gone into the Republican enclaves of Connecticut and New Jersey and said, “Look, I know we don’t agree on abortion, but surely we can preserve the life of a child born alive? Why don’t we just start there?” There was nothing to lose and much to gain in melting some of those intractable Republicans. It was indeed a surprise that Mr. Bush as a candidate would not speak at all about this issue, made as simple and disarming as it could be. But even more astonishing was the fact that he never even endorsed the Born-Alive Infants’ Protection Act.
He did sign it. And he was kind enough to invite me to the signing, where he remarked that this move was a “first step in the changing of the culture.” I do believe he feels this in his bones, and I love him for that. His reticence I cannot quite explain. But it is damaging in a subtle yet biting way: For he is conveying the lesson that, in the judgment of a skilled political man, it is either impracticable or impolitic to make the pro-life argument in public.
In any case, the president set the pattern here: He will sign any pro-life measure that we manage to pass. Yet, he will do nothing himself to lobby for any bill, or even make the case for it in public. The most we can hope is that he will endorse a bill that others have shaped. Those of us who have been pleading that he do more can be grateful that he has just endorsed the bill, passed by the House, to bar the taking of minors into another state for the purpose of evading the laws on parental consent. Still, we know this now as a brute fact: Whatever can be accomplished on the pro-life side, the leadership must come from Congress. It will not come from the president. This we know now as surely as we know anything. President Bush may speak assuring words in pro-life enclaves, but he will not make the argument in any public forum, where he could be seen as engaging in any effort to persuade. The main point is that the press always treats these remarks as “private talk,” not as remarks that are intended to engage the broader public. We understood all of that, which is why we never expected him to wade into the public controversy. Ramesh writes as though I were faulting the president for not charging into New York or a meeting of the National Organization for Women, looking for a bruising argument.
After the Born-Alive Act was passed, I suggested, in memos to the White House, that he consider moves as simple and costless as this: He could note that the Born-Alive Infants’ Protection Act provides no penalties, criminal or civil. The bill was meant as a “teaching bill,” you might say, mainly to plant premises in the law. But now the president could simply ask one of the committees on the judiciary, in either house, to consider the question of what an appropriate penalty might be for withholding medical care from a child born alive. And yet–I would have had the president say–let us make the question even gentler. Instead of threatening people with jail, or with knock-out fines, why don’t we simply remove federal funds from hospitals and clinics who withhold medical care, or who perform the hideous partial-birth abortions? The only further exertion for the President was merely to pose one more question, either to Congress or his attorney general: What counted as a recipient of “federal funds”? Did the formulas of the Civil Rights Restoration Act apply? In other words, if anyone entering a clinic was receiving a Social Security check or being covered by Medicare, was the whole place now a “recipient of federal funds”?
It was just the posing of questions. No executive orders, no major arguments. Entirely costless. But Ronald Reagan showed that he could set off weeks of discussion on late-night television, and stir hearings in Congress, simply by observing that fetuses feel pain. With the placing of those simple but pointed questions, the president could have set off deep tremors among the Democrats–the kinds of tremors that could indeed amplify into grave tensions, unsettling his adversaries, and yet setting the ground for other, serious measures. Was that really too much of a burden for a president to bear?
Ramesh credits me with brilliance, and yet in a move quite out of character for him, he seems to miss altogether the political strategy in which these moves were placed. The proposal to remove funds was offered as yet another gentle move, another gesture of moderation, avoiding penalties targeted at doctors. But the threat to remove funds touched the whole scheme of “legislating by indirection”. We still don’t know how the federal government can reach a private clinic counseling birth control. The federal government offers grants, and if people accept the money, the federal rules come along. But if not, there is no binding rule, no legislation in any strict sense. In this way has the reach of the federal government been extended over the past 40 years or more to accord with the reach of the liberal agenda.
The president could suggest the removal of federal funds as a more moderate form of penalty, and yet the Democrats would know at once how deeply that move would cut, and they could not stand back. If they acquiesced in this move, Congress could then begin legislating, in effect, on abortion, in a whole series of steps, starting with restrictions on abortions late in term. But in order to resist they would have to start dismantling this whole scheme of legislating through federal grants, and they could not do that without dismantling the structure of law that supports liberalism unbounded. If the Democrats really want to start taking down this structure, we would be more than willing to help them. As I argued to friends in the White House, this was, for conservatives, a win-win proposition.
And as for the liberals, would they really stage their resistance on this terrain? Would they fight for the sake of preserving a right to withhold medical care from children born alive? Or to preserve partial-birth abortion, a procedure rejected by about 70 percent of the public? Ramesh is one of the shrewdest writers on politics that I know; and yet I think he has seriously misgauged the prospects here. He fears that these moves are likely to be seen as provocative, and he thinks that far more is likely to be gained from appointments to the courts. I think he has things quite backwards. The Dred Scott decision on slavery was not undone by appointments to the courts. It was undone by a national, political movement led by Lincoln, and the resistance was felt in legislation long before it was felt in the courts. That political movement shaped the climate of opinion in which judges would work. We’ve had now 25 years of appointments to the courts by Reagan, and two Bushes, and we know the sorry record. We would also be engaging in a remarkable act of collective illusion if we imagined that even a Supreme Court, suitably altered, would move soon toward the overruling of Roe v. Wade. The courts are more likely to make their way to that end if the climate of opinion has been noticeably altered. The advice, tendered by Ramesh, to keep our heads down and be reticent is the wrong advice right now. And it is especially wrong when it may take only the slightest measures to push the Democrats over the edge and into their gravest crisis.
That they are in a crisis even they are now willing to acknowledge. Even Hillary Clinton makes sounds of reaching out to that pro-life constituency so massively lost to the Democrats. But she and her friends are evidently incapable of doing anything but making the most cosmetic of changes. This new move of the administration–this move to begin enforcing the Born-Alive Infants’ Protection Act–is the gentlest of moves, and yet it is a momentous breakthrough. The move to start withdrawing funds would not be seen as threatening in the country. It would be seen, I think, as a mark of seriousness, yet modest in its reach. But it also runs deep, and it could soon be joined by other measures, already in contemplation in Congress: viz., a general policy of removing federal funds from hospitals and clinics that violate the Born-Alive Infants’ Protection Act or house the grisly surgeries known as partial-birth abortions.
Three years ago, the Democrats had to be held in check to keep about 40 of them from voting in the House against the bill to protect children born alive. If the Congress moves with these further steps, I myself believe that nothing will hold the Democrats together. They could be pushed here into a crisis that could be terminal for them on this matter. We never expected to see the Soviet empire collapse in our lifetime; and here, I actually believe that we could be at the edge of the endgame on abortion. The administration has now produced, as I say, a breakthrough quite striking. This is not the time to hold back in doubt. If there was ever a time to push on, with measures gentle but pointed, this is surely that time. And to take a line from Lincoln, may the vast future not lament our failure to act right now, with measures so moderate, so focused, so readily within our grasp.
–Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.