It must be one of those inversions of this age of the media that the issues raised by the trial of Dr. Kermit Gosnell in Philadelphia have faded into the background, while the main attention has been drawn to the screening of this story by the liberal media. But even more curious has been screening that has taken place within the conservative media: Dr. Gosnell was involved in killing babies who had survived abortions, but somehow conservatives seem to have forgotten that they had helped to pass a federal law that forbade precisely that killing of a child who had survived an abortion, the Born-Alive Infants Protection Act of 2002.
That bill was meant to mark the outer boundaries to the holding in Roe v. Wade: Whatever else a “right to abortion” entailed, it could not mean a right to kill the child who survived. In one notable case, a federal judge had opined that “the fetus in this case was not a person whose life state law could protect.” In other words, the right to abortion entailed the right to an “effective abortion” or a dead child. That was precisely what Congress sought to reject in that 2002 bill, seen as a “modest first step” in legislating on abortion.
The idea had sprung from a proposal I had written for the debating kit of George H.W Bush in 1988. By the time it was put in legislative form, the penalties were dropped, in part to avoid a veto from President Clinton (in 2000), but in part also to make the bill a pure “teaching” bill”: The bill would break to the public news that most people would find jolting. Most people did not know that under Roe v. Wade and the companion case of Doe v. Bolton, the right to abortion would extend through the entire length of the pregnancy, for any reason at all—and even when a child survived the abortion.
Indeed, the trial of Dr. Gosnell has jarred some pro-choice people into a rethinking of their views, and those were the reactions we had hoped to stir with our bill. Democrats skillfully muted the issue by avoiding the kind of argument that would draw attention to the bill; and the mainstream media happily played along in their refusal to cover the bill. That blackout managed to extend to the only Democrat of national importance who came out explicitly in opposition to this move to protect the child who survived the abortion: State Senator Barack Obama, who as the chairman of a committee managed to kill the same bill in Illinois.
I had been given the privilege of leading the testimony on the bill at the House Committee on the Judiciary, and I was joined by a brave nurse, Jill Stanek, who had blown the whistle on the “live birth abortion” practiced in her hospital in Illinois: the baby was delivered alive and then simply put in a refuse room to die. After the passage of the bill, Stanek was interviewed often on radio, and nurses called in from different parts of the country to report that this “procedure” had been practiced for years in their hospitals. From the reports coming in, it appeared that the volume of these procedures was vastly larger than we had ever suspected.
Cary Pigman, a state legislator in Florida, reviewing the figures on perinatal infant mortality, noted recently that, as of 2010, there were about 1,270 of those deaths “reported,” and he put the accent on “reported.” In Canada it was reported last year that at least 491 babies had been born alive following botched abortions in 2000-2009. Jill Stanek has suggested that live-birth abortion could become the procedure of choice precisely because it is the safest of all for the mother: No instruments are introduced into her body, and there is no need to retrieve the dismembered parts of the child, left behind and posing dangers of infection.
With the scandal over Kermit Gosnell, this seems precisely the moment for pro-life congressmen to return to the Born-Alive Act and hold hearings: They could take evidence now about the volume of these killings, and they could restore the civil penalties that were dropped from the bill. After all, not a single Democrat, in either House, finally voted against that bill. The Democrats agreed that it was wrong to kill a child who survived an abortion, and so they should be faced with the question of how wrong they thought it was: Would it merit at least the kind of penalty that comes with a moving violation in traffic?
Even without civil penalties attached to the Born-Alive Act, it remains one of the most powerful tools in the arsenal of the pro-life side. For it is a real statute, and therefore any hospital or clinic performing a live-birth abortion would not be “in accord with the public policy” of the United States. On that ground, it could lose its tax exemption and all supporting federal funds, a prospect that could be enough in itself to induce people to back away from this business.
The prosecution of Dr. Gosnell in Philadelphia brings back the old arguments on why federal legislation may not be needed: The federal government might impose fines or withdraw funds, but Gosnell is being tried for murder in Philadelphia. This was the point made many years ago to argue against federal laws when black people held by sheriffs were murdered in the South. But now, as then, a federal bill may have the effect of stirring the local authorities to take these matters more seriously. And indeed it appears that it was the federal bill on the survivors of abortion that inspired the bills springing up in the states, including the one that Barack Obama managed to kill in Illinois.
The Born-Alive Act now has another powerful resonance. President Obama had been moved to pronounce a judgment on the constitutionality of the Defense of Marriage Act. Surely he would be invited to offer his judgment now on whether he still holds to his view that the bill to protect the survivor of abortion is unconstitutional because it is incompatible with Roe v. Wade. If Obama’s position is regarded as arguable even now, that would deliver the real news of this spring: namely, that 40 years after Roe was decided, the meaning of that case as a precedent is not really settled after all.
Hadley Arkes is a professor of jurisprudence at Amherst College and a senior fellow at the Claremont Institute’s Center for Constitutional Jurisprudence.