A Little-Noticed Pro-Life Victory

Professor Hadley Arkes a dozen years ago made a terrific proposal to revive the faltering pro-life movement -- and his efforts finally paid off last week, although hardly anyone noticed.

In 1990, when many pro-lifers were still hoping for the home run -- a constitutional amendment to ban abortion -- the Amherst political philosopher proposed bunting for a single: Have Congress go on record as supporting the right to life of any child who is born alive following an "ineffective" abortion.

That's what now has happened, and the Austin American-Statesman was typical in giving the result one paragraph in a roundup of the Aug. 5 news: "Bush Signs Fetus Status Law. President Bush signed a bill that declares a fetus that survives an abortion procedure a person under federal law."

That description would be laughable were it were not so sad. Sometimes it's hard to avoid talking back to a newspaper: "The creature protected by that newly signed Born Alive Infants Protection Act could not possibly be a fetus. The abortion procedure has expelled him from the womb. He is born. He's a person. What else could he be?"

But some judges in recent years did not grasp that elementary fact, and some doctors and nurses sadly left born-alive survivors of abortion to die in cold steel pans.

Ironically, the reluctance to come to grips with reality made passage of the Born Alive Act possible: Democrats agreed not to oppose the bill, and Republicans agreed not to give speeches about it. Democrats did not want to alienate their virulent pro-abortion backers when a high-profile discussion of just-born life turned to an examination of the same life several minutes earlier, but they also did not want to go on the record for infanticide.

For a time, it seemed that President Bush might sign the bill into law without comment. He came through on Aug. 5, though, saying, "Today, through sonograms and other technology, we can see clearly that unborn children are members of the human family. ... They reflect our image and are created in God's own image. The Born Alive Infants Protection Act is a step toward the day when every child is welcomed in life and protected in law. It is a step toward the day when the promises of the Declaration of Independence will apply to everyone, not just those with the voice and power to defend their rights."

The president also thanked by name individuals who had made the act possible, including Arkes, who never gave up on the idea. I remember Hadley speaking at meetings of pro-life leaders, displaying his Jewish intellectual style amid a coalition of somber evangelicals and Catholics. With a mischievous glint in his eyes, he would pepper his talks with humorous, Damon Runyonesque remarks, and then arch his eyebrows like Groucho Marx.

The lines that could have come from "Guys and Dolls" kept Arkes' arguments from becoming arcane. The force of his logic was hard to dispute. He spoke then and has continued speaking about the "animating principle" behind what Congress (even if through a silent scream) has enshrined in law: "The child marked for an abortion is recognized now as an entity that comes within the protection of the law."

The next legislative step, of course, is for Congress to extend protection from the fully born to the three-fourths-born by passing a partial-birth abortion bill that will withstand judicial challenge. That should happen soon, and President Bush will sign it into law. Steps to help young women make better-informed choices between life and abortion also are needed. The president referred to the power of sonograms, and the administration and Congress should work together to help pregnancy centers purchase the equipment that will allow more women to see pictures of the babies they are carrying.

So Arkes' content and style have led to one victory and paved the way for bigger efforts. Unsurprisingly, none of the nation's news pages (judging by a Lexis-Nexis check) mentioned him the day after President Bush signed his bill into law, and most were like Austin's newspaper in almost entirely ignoring the development. But future historians should notice, and some abortion survivors certainly will.

Personally, I'm glad that this didn't get too much coverage; it kept loonies like Barbara Boxer from spouting nonsense like the following:

[When the Senate considered the Partial-Birth Abortion Ban Act on October 20, 1999, perhaps the most revealing part of the debate was the exchange that is reproduced below, between the chief sponsor of the bill, Senator Rick Santorum (R-Pa.), and the leading opponent, Senator Barbara Boxer (D-Ca.). This discussion appears on pages S12878-80 of the October 20 Congressional Record. We have corrected minor errors in transcription and punctuation based on review of a videotape of the C-SPAN broadcast.]

Senator Santorum: I think the issue of where we draw the line constitutionally is very important. And I’m sure the Senator from California [Senator Boxer] agrees with me. I think the senator from California would say that she and I, and the senator from Illinois and the senators from Arkansas and Kansas here, we are all protected by the Constitution with a right to life. Would you agree with that, senator from California -- [would you] answer that question?

Senator Boxer: I support the Roe versus Wade decision.

Santorum: So you would agree any child that’s born has the right to life, is protected under the Constitution? Once that child is born?

Boxer: I agree with the Roe v. Wade decision. And what you are doing goes against it and will harm the women of this country. And I will speak to that issue when I get the floor myself.

Santorum: But I would like to ask you a question. You agree, once that child is born, is separated from the mother, that that child is protected by the Constitution and cannot be killed? Do you agree with that?

Boxer: I would make this statement: That this Constitution, as it currently is -- some of you want to amend it to say that life begins at conception. I think when you bring your baby home, when your baby is born -- and there is no such thing as partial-birth -- the baby belongs to your family and has all the rights. But I am not willing to amend the Constitution to say that a fetus is a person, which I know you would.

But we will get into that later. I would prefer to address --I know my colleague is engaging me in a colloquy on his time, and I appreciate it -- I will answer these questions.

I think what my friend is doing, by asking me these questions, is off point. My friend wants to tell the doctors in this country what to do. My friend from Pennsylvania says they are "rogue" doctors. The AMA will tell you they no longer support you. The American nurses don't support you. The obstetricians and gynecologists don't support you. So my friend can ask me my philosophy all day. On my own time I will talk about it.

Santorum: If I can reclaim my time: First of all, the AMA still believes this is bad medicine. They do not support the criminal penalties provisions in this bill, but they still believe -- I think you know that to be the case -- that this procedure is not medically necessary, and they stand by that statement.

I ask the senator from California, again: you believe, you said "once the baby comes home." Obviously, you don't mean they have to take the baby out of the hospital for it to be protected by the Constitution. Once the baby is separated from the mother, you would agree -- completely separated from the mother -- you would agree that baby is entitled to constitutional protection?

Boxer: I will tell you why I don't want to engage in this. You did the same conversation with a colleague of mine, and I never saw such a twisting of his remarks. [Editor’s note: See Nov. 14, 1996 NRL News, page 24, for transcript of an exchange between Santorum and Senator Russ Feingold (D-Wi.).]

Santorum: Well, be clear, then. Let's be clear.

Boxer: I am going to be very clear when I get the floor. What you are trying to do is take away the rights of women and their families and their doctors to have a procedure. And now you are trying to turn the question into, "When does life begin?" I will talk about that on my own time.

Santorum: What I am trying to do is get an answer from the senator from California as to where you would draw the line? Because that really is the important part of this debate.

Boxer: I will repeat. I will repeat, since the senator has asked me a question – I am answering the question I have been posed by the senator. And the answer to the question is, I stand by Roe v. Wade. I stand by it. I hope we have a chance to vote on it. It is very clear, Roe v. Wade. That is what I stand by. My friend doesn't.

Santorum: Are you suggesting Roe v. Wade covered the issue of a baby in the process of being born?

Boxer: I am saying what Roe v. Wade says is, that in the early stages of a pregnancy, a woman has the right to choose. In the later stages, the states have the right, yes, to come in and restrict. I support those restrictions, as long as two things happen: They respect the life of the mother and the health of the mother.

Santorum: I understand that.

Boxer: That is where I stand. And no matter how you try to twist it, that is where I stand.

Santorum: I would say to the senator from California, I am not twisting anything. I am simply asking a very straightforward question. There is no hidden question here. The question is --

Boxer: I will answer it again.

Santorum: Once the baby is born, is completely separated from the mother, you will support that that baby has, in fact, the right to life and cannot be killed? You accept that; right?

Boxer: I don't believe in killing any human being. That is absolutely correct. Nor do you, I am sure.

Santorum: So you would accept the fact that once the baby is separated from the mother, that baby cannot be killed?

Boxer: I support the right -- and I will repeat this, again, because I saw you ask the same question to another senator –

Santorum: All the person has to do is give me a straight answer, and then it will be very clear to everybody.

Boxer: And what defines "separation"? Define "separation." You answer that question. You define it.

Santorum: Well, let's define that. Okay, let's say the baby is completely separated. In other words, no part of the baby is inside of the mother.

Boxer: You mean the baby has been birthed and is now in its mother's arms? That baby is a human being.

Santorum: Well, I don’t know if it’s necessarily in its mother’s arms. Let’s say in the obstetrician's hands.

Boxer: It takes a second, it takes a minute – I had two babies, and within seconds of their birth --

Santorum: We’ve had six.

Boxer: Well, you didn't have any.

Santorum: My wife and I had babies together. That’s the way we do things in our family.

Boxer: Your wife gave birth. I gave birth. I can tell you, I know when the baby was born.

Santorum: Good! All I am asking you is, once the baby leaves the mother's birth canal and is through the vaginal orifice and is in the hands of the obstetrician, you would agree that you cannot abort, kill the baby?

Boxer: I would say when the baby is born, the baby is born, and would then have every right of every other human being living in this country. And I don't know why this would even be a question, to be honest with you.

Santorum: Because we are talking about a situation here where the baby is almost born. So I ask the question of the senator from California, if the baby was born except for the baby's foot, if the baby's foot was inside the mother but the rest of the baby was outside, could that baby be killed?

Boxer: The baby is born when the baby is born. That is the answer to the question.

Santorum: I am asking for you to define for me what that is.

Boxer: I don’t think anybody but the senator from Pennsylvania has a question with it. I have never been troubled by this question. You give birth to a baby. The baby is there, and it is born. That is my answer to the question.

Santorum: What we are talking about here with partial birth, as the senator from California knows, is a baby is in the process of being born --

Boxer: "The process of being born." This is why this conversation makes no sense, because to me it is obvious when a baby is born. To you it isn't obvious.

Santorum: Maybe you can make it obvious to me. So what you are suggesting is if the baby's foot is still inside of the mother, that baby can then still be killed.

Boxer: No, I am not suggesting that in any way!

Santorum: I am asking.

Boxer: I am absolutely not suggesting that. You asked me a question, in essence, when the baby is born.

Santorum: I am asking you again. Can you answer that?

Boxer: I will answer the question when the baby is born. The baby is born when the baby is outside the mother's body. The baby is born.

Santorum: I am not going to put words in your mouth –

Boxer: I hope not.

Santorum: But, again, what you are suggesting is if the baby's toe is inside the mother, you can, in fact, kill that baby.

Boxer: Absolutely not.

Santorum: OK. So if the baby's toe is in, you can't kill the baby. How about if the baby's foot is in?

Boxer: You are the one who is making these statements.

Santorum: We are trying to draw a line here.

Boxer: I am not answering these questions! I am not answering these questions.

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