The Magazine

Staying Alive

A very modest proposal for a pro-life president.

Jan 21, 2002, Vol. 7, No. 18 • By HADLEY ARKES
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THE BORN-ALIVE INFANTS Protection Act is an attempted "modest first step" on abortion, a measure that would simply protect a child who survives an abortion. The bill passed in the House by a vote of 380-15 in September 2000. Last June, it was approved 98-0 in the Senate, when it was introduced by Pennsylvania Republican Rick Santorum as a rider to the patients' bill of rights. Like much else that happened before September 11, it has been sidelined ever since.

Such a gentle move to protect innocent life might seem to be a natural issue for promotion by a pro-life White House, especially when the bill seems to enjoy a consensus among the parties in Congress. And yet, any effort to move this bill is likely to be branded by the Democrats as "divisive." For in their heart of hearts, many Democrats hate the Born-Alive act. Michigan's Debbie Stabenow threatened last year to oppose it in the Senate before cooler heads prevailed. After a huddle, the Democrats decided to follow the plan counseled by Rep. Jerrold Nadler in the House: Play rope-a-dope, go along with the bill--don't court the embarrassment of voting against it, and don't give its sponsors the satisfaction of an argument. For an argument would only draw attention to an uncomfortable truth about abortion law: namely, that the right to end a pregnancy has been transformed into a right to a dead child.

The Nadler tactic held. True, the National Abortion Rights Action League denounced the bill as an "anti-choice assault," a subtle first step in rolling back Roe v. Wade. But only 13 true believers among the Democrats voted with NARAL. The same reflexes were suppressed among Democrats in the Senate, and the word was that they hoped to knock the born-alive part out of the patients' bill of rights in a conference between the chambers.

The discomfort among Democrats with a bill that essentially restates society's opposition to infanticide is a confirmation of the fact that the Born-Alive Infants Protection Act, as modest as it is, runs to the root of things, and that root is unsettling. The most practical effect of the bill would be to stop the hideous practice of so-called "live birth abortions," practiced at places like Christ Hospital in Oak Lawn, Illinois. There, babies with Down Syndrome and other defects are delivered and then simply put aside, barely covered, and allowed to die. The House Judiciary Committee heard vivid testimony on this procedure from Jill Stanek and Allison Baker, two brave nurses who had worked at the hospital and came forward despite the risk to their careers.

But apart from stopping such horrors, the importance of the bill lies in the premises that it would plant in the law--notably, that a child marked for an abortion nevertheless retains a claim to the protections of the law; that if the courts can pronounce on abortion, the Congress can legislate on the same subject; and that abortion, like any other right, must have its limits.

The sponsors of the bill made those premises explicit in an elegant set of findings, and they could earnestly say that, if these propositions did not explain the reasons for voting for the bill, it was hard to see why the Democrats were voting for it. The most notable of the findings were these: The right to end a pregnancy ends when the pregnancy itself ends; and so the "right to an abortion" cannot mean the right to a dead child. The child born alive has a claim to the protection of the law, a claim that cannot pivot on the question of whether anyone "wants" her. The child, said the committee, has an "intrinsic dignity as a human being," and her claim to protection cannot be "dependent upon the desires, interests, or convenience of any other person." If these reasons did not hold, would we protect a child only when it "pleased" us to protect her--and would we cease to protect her when it ceased to please us?

It is hard to see how anyone could object to these findings while he was professing to vote for the bill, and yet the Democrats regarded the findings as provocative and inflammatory. And to the astonishment of the Republican sponsors, those findings were deleted from the bill, not by the opposition of the Democrats, but by the Republican chairman of the Judiciary Committee, James Sensenbrenner of Wisconsin. Sensenbrenner knew that the findings would encounter resistance among Democrats, and apparently he did not wish to look like a less effective chairman than his predecessor, Henry Hyde, by losing votes for the bill. With 380 votes in favor, there were plenty of votes to spare, and there was no need for a preemptive surrender. But the result was one of the strangest plays in our recent politics: The Democrats were trapped in a bind with no good choices, and the Republican chairman ran interference in helping them escape.