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Right to Choose, or License to Kill?

An exchange on the Senate floor exposes the dark side of "pro-choice" dogma

Nov 15, 1999, Vol. 5, No. 09 • By HADLEY ARKES
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IT IS RARE THAT U.S. SENATORS fall apart on the floor of the Senate under questioning from one of their colleagues, but Senator Barbara Boxer did just that during the October 20 debate on partial-birth abortions, and there was nothing random in the spectacle. Her frustration sprang from the flaws that run through the defense of these grisly abortions, and the questions, posed by Senator Rick Santorum, proceeded from the design of the argument.

Santorum was asking how Boxer would defend a so-called abortion at the very point of birth, with about 70 percent of the child's body already emerged from the birth canal. In a partial-birth "procedure," the doctor punctures the skull of the child, so that the body can be removed, so to speak, intact. Santorum asked, What if the child had been reversed in the womb so that it came out head first, and only the foot, or a toe, was left in the womb? No one, by this point, is professing to believe that the child is not human or that the killing of the child is necessary for the health of the mother. Santorum then pressed the point: Was it an abortion -- and therefore a legitimate killing -- only because a part of the child was still in the birth canal?

To that, Boxer replied, "Absolutely not." Santorum then followed up with another apt question: Why, he wondered, should it make a difference if it is the head remaining in the birth canal, at the time of birth, rather than the toe? Yet that question inflamed Boxer. Instead of answering it, she accused Santorum of trying to "bait" her. "I agree with the Roe v. Wade decision," she said, "and what you [Santorum and his colleagues] are doing goes against it and will harm the women of this country."

Santorum moved then to an even more elementary question: Boxer and her friends are presumably opposed to infanticide and would cast the protections of the law over children. Santorum then asked, When would those protections of the law begin?

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

BOXER: I think when you bring your baby home, when your baby is born . . . the baby belongs to your family and has rights.

Senator Boxer slipped into rare candor here, as she made explicit the premises behind abortion rights: namely, that human beings, as human beings, have no inherent rights; they are assigned those rights by their families if the families are willing to confer them. But even for the defenders of abortion rights, it is surely too jarring to say that a baby once born could be killed legitimately up to the time when the family took the baby home. If Boxer meant that, the right to abortion is in fact the right to infanticide. And so the Pennsylvania Republican persisted:

SANTORUM: 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 don't want to engage in this. You had the same conversation with a colleague of mine, and I never saw such a twisting of his remarks.

Boxer treated it as a bit of insolence that Santorum should ask the most elementary question of all, which runs back to the core of the argument over abortion: What is the earliest moment at which the child can be protected by the law? If it is not when the child is separated from the mother, then when? Or is it that the right to an abortion -- as some commentators have suggested -- is the right to an "effective abortion" or a dead child?

Just a year ago, Santorum was on the threshold of introducing what still stands as the most modest first step of all on abortion: a proposal simply to protect the child who survives an abortion. At that moment, the interests of the child are separated entirely from the interests of the mother. The only thing at issue then is this: Does the right to an abortion entail the right to kill the child, even when that is not necessary to end the pregnancy?

Barbara Boxer's hysterical response to that simple question should confirm the deep utility of forcing the issue. Advocates of abortion do not want to face the question -- clearly, it unnerved Boxer and inspired a frantic effort to get off the floor without addressing it. For as modest as that question sounds, a bill forcing the issue would establish these critical premises, which could unravel the whole apparatus built upon Roe v. Wade:

(1) The right of a child to receive the protections of the law cannot pivot on the question of whether anyone "wants" him.

(2) If that is correct, then the child must constitute a real entity, in the eyes of the law, a being whose injuries "count," or have standing.

(3) If the Supreme Court can articulate new rights under the Constitution (such as the right to abortion), the legislative branch must have the authority to fill out those same rights, and in filling them out, to mark their limits. The one notion that should be plainly incompatible with the principle of the separation of powers is that the Court may articulate new rights -- and then assign to itself a monopoly of the legislative power in defining those rights.

If the courts -- and the Democrats -- deny those first two points, they are obliged to tell us just what the ground is on which the law claims to protect the newborn child. Or, if they would deny that the law can protect the child born alive, they would have to say now even more explicitly what the federal courts have been suggesting in the cases on partial-birth abortion: that it is no longer legitimate to bar infanticide if doing that would inhibit abortions. Over the past year there have been several cases of children who survived abortions, but the reactions of Barbara Boxer confirm yet again that the importance of the bill moves well beyond the number of cases.

Santorum was persuaded by the leadership in the Senate to hold back last year at this time, rather than distract attention from the bill on partial-birth abortion. And yet, it should be clear by now that this simpler bill would help to prepare the ground for banning partial-birth abortion. For it would compel the Barbara Boxers to declare themselves on the point they still wish to evade: whether there is a real child or entity there with a right to the protection of the law. The bill on partial-birth abortion looks likely to be vetoed again by President Clinton. And so, too, may be congressman Lindsey Graham's bill on "the unborn victims of violence," a bill that simply covers unborn children who are injured in the course of crimes that are already covered by federal law. If both measures are vetoed, Santorum and Graham should resume collaboration on a bill to protect the survivors of abortion.

The reaction of Barbara Boxer to Rick Santorum's questions reveals, powerfully, that the "pro-choice" contingent in both parties cannot face directly the simplest question that stands at the root of the issue; that the very posing of the question produces, on their part, anger and incoherence.

What more signs are needed? Bring that draft out of the files -- and press it now.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a fellow at the Center for Ethics & Public Policy.