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Revisit the Born-Alive Act

10:05 AM, Apr 30, 2013 • By HADLEY ARKES
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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.

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