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.
In one stroke, Sensenbrenner disrupted years of work in putting together a coalition for the bill, for without the findings the bill might indeed lose its point. Yet even without the findings, as Rick Santorum remarked, the bill would still make a difference if it were to become law: It would establish a firmer ground for the Congress to pass again a bill on partial-birth abortion. For it would establish that even a child marked for abortion is a real entity, who comes under the protection of the law. Nonetheless, the Born-Alive measure languishes.
In the meantime, Christ Hospital in Oak Lawn, perhaps reading the political moment, has fired nurse Jill Stanek. And so, in the haze of bipartisanship that has followed September 11, a measure to protect living, newborn children has been put to the side, and the main casualty, apart from the bill itself, is the woman who risked her career in exposing this killing of the innocent. It is hardly an advertisement for a political party that it does nothing to protect the people who have run risks on its behalf. An administration that is pro-life would also have a stake in showing that its adherents do not become hostages: If the administration cannot protect a Jill Stanek, it could at least honor her and try to redeem the sacrifice she made. It could do that by making a move to pass the bill in behalf of which she testified and risked her career. This would not seem to require herculean amounts of political courage, with the Democrats afraid to vote against the bill.
THE PRESIDENT'S PERFORMANCE the past few months has been, on all counts, admirable. His administration has been marked by a commendable moral fervor and indignation over the killing of innocent Americans in New York and Washington. But even as domestic politics begins to command the president's attention once more, the administration has yet to call for passing this simplest of all bills, which could forestall the killing of innocent beings marked for death. There are not a lot of live-birth abortions, but each one is unforgivable. These lives are within the power of the administration to protect, and, in protecting them, to teach a notable lesson.
We have, coming up on January 22, the annual March for Life, timed to the anniversary of Roe v. Wade. The president would not appear to be going out of his way to be provocative if he took the occasion to remind the country of the importance of protecting innocent life. If we really think the human person bears an intrinsic dignity, which we are therefore obliged to respect, then that dignity does not rise in proportion to height or weight or age. A one-hour old, prematurely born infant with Down Syndrome possesses the same dignity as any of us. Surely, she cannot be destroyed or used as a means to our projects low and high, or thrown away when she fails to serve our interests.
To enact the Born-Alive act would require only the slightest effort: The hearings have already been held, twice, in the House, and the bill containing the Born-Alive act has already been passed unanimously in the Senate. The passing of the bill in the House, in September 2000, took only 45 minutes. The president might simply pose the question: Would Senate Democrats be willing to take 45 minutes to enact, finally, a bill to protect children born alive; a bill that commands wide support among both parties in Congress? Why, after all, should there be a problem--unless most Democrats really are opposed to the bill? If they are, let's find out.
This can be a win-win situation for the president, with little political cost. For he could take the Democrats at their word, and suggest, in the spirit of bipartisanship, that both parties could agree on this: that whatever else a right to abortion means, there cannot be a right to kill a child already born merely because she had once been marked for termination. Like every other right under the sun, even the right to abortion must have its limits.
In coming to this agreement, the parties would make it possible for Congress to pass the first legislation since Roe v. Wade that actually recognizes a limit on abortion. In that way, even this most modest of all bills would establish something momentous. But if the Democrats cannot brook that kind of step, they would have to proclaim in public that abortion, for them, finds no limits; that they will not accept a single restriction on the 1.3 million abortions performed every year in this country.
Of course, many of us believe that this, precisely, is the policy of the Democratic party. But it is not a policy that Democrats care to make explicit in public and claim as their own. The president, in short, may be free to take the high ground, and to articulate the fuller, principled reach of the concerns he has been representing in the country since September. And for a change, it's the Democrats who would be off balance. They could hardly breathe a word of complaint in public. But there are few things that would unsettle them more.
Hadley Arkes is the Ney Professor of American Institutions at Amherst College, and one of the architects of the Born-Alive Infants Protection Act.