(This article, which originally appeared in National Review Magazine, courtesy of Steven Ertelt and the Pro-Life Infonet email newsletter. For more information or to subscribe go to www.prolifeinfo.org or email infonet@prolifeinfo.org.)
Radical Firmness
On July 18, the Democrats in the Senate permitted the reading and the passage of the Born-Alive Infants Protection Act, an act that seeks to protect a child who survives an abortion. The Congress could have accomplished something comparable with the bill on partial-birth abortion. But Bill Clinton vetoed that bill, and the Supreme Court struck down the similar bills passed in the states.
Yesterday President Bush signed the bill, and indeed even Bill Clinton would have found it hard to veto a bill as simplified and modest as the Born-Alive Act. No one except the radical feminists in the National Abortion Rights Action League had the touch of madness to oppose this bill, for no one except a crazed zealot would profess any doubt about the “human” standing of the child at the point of birth. Not that the members of NARAL have any doubt on that score themselves. It is just that they are willing to assert, with radical firmness, the right of a woman to destroy the child in her womb as a matter solely of her own interest, and the triumph of her own will.
Spare and Momentous
But the feminists at NARAL were also moved to passionate opposition because they understood this bill better than many of its supposed friends among the Republicans, for they understood its animating principle. As modest as it was, the bill planted premises that ran deeper than the bill on partial-birth abortion. Indeed, it could be said that, with this bill, the Congress now prepares an even firmer ground for revisiting the bill on partial-birth abortion and insisting that the courts take a sober second look.
Judge Richard Posner had twitted the drafters of the bills on partial-birth abortion: Those laws had never claimed the authority to protect the child herself, and so, he asked, why would the state have any compelling interest merely in shifting the killing of the child from the birth canal back to the uterus?
The Born-Alive Act fills in that missing step: The child marked for an abortion is recognized now as an entity that comes within the protection of the law. When Bill Clinton vetoed the bill on partial-birth abortion, his concern was entirely for the feelings and health of the pregnant woman. Somehow that other being, the one whose head was being punctured, and the brains sucked out, never came within his sight. For the law, and for Clinton, the child was not there; her interests simply didn't count.
The Born-Alive Act accomplished its work in the most delicate way, without any contrived theories of the Constitution. The drafters took their model from the Defense of Marriage Act of l996: Congress surely has the authority to pronounce on the meaning of terms in the federal code, which Congress, and only Congress, can legislate. Congress could then stipulate that by a “marriage” it meant a legal union of a man and woman, known as “husband” and “wife.” In the case now of the child who survived an abortion, the Congress simply stipulated that the term “person,” used in the federal code and in federal regulations, “shall include every infant member of the species homo sapiens who is born alive at any stage of development.” And the meaning of “born alive,” set forth in terms to guide lawyers and judges, clearly encompasses “the expulsion or extraction [of a child] as a result of natural or induced labor, ceasarean section, or induced abortion.”
And that is all. The bill is spare — and truly momentous. For it provides a predicate that can be built into the foundation now of every subsequent act of legislation touching the matter of abortion: that the child marked for abortion is indeed a “person” who comes within the protection of the law. The irony, though, is that this bill could be enacted only on terms that barred its sponsors from proclaiming, or even explaining, the things that made it such a landmark. Once the control of the Senate shifted to the Democrats, the bill had little chance of being introduced, even though it commanded wide support in both parties.
The Significance of What Was Done
The initiative, and the moral conviction, came from the House, from Charles Canady, the former chairman of the Subcommittee on the Constitution, and his successor, Steve Chabot of Ohio. Congressman Jerry Nadler (D, N.Y.) had the wit to see that the Democrats would embarrass themselves by voting against the bill, even though Nadler could not restrain himself, at every turn, from denouncing the bill, and the Democrats in the House and Senate clearly hated it. The Democratic strategy was just to go along — to avoid embarrassing themselves by voicing their opposition, and by giving the pro-lifers the argument that they evidently wanted. For that argument would only draw attention to the bill. By playing rope-a-dope in that way, the Democrats could snatch a victory of sorts from this political trap: The bill might pass, but without the kind of debate that would establish the meaning, or significance, of the bill.
The price of passing the bill in the Senate was essentially to give the Democrats what they wanted. The bill was introduced for its formal “readings” without explanation or fuss, by Harry Reid of Nevada, hardly a pro-lifer in anyone's reckoning. In this style, the bill was “passed” late on a Thursday night, at the end of a cluttered legislative day, and just before the Senate would turn to a resolution honoring the musician and statesman Paderewski.
Rick Santorum of Pennsylvania had introduced the measure last year, as a rider to the Patients Bill of Rights, and when he demanded a roll call, the vote was 98-0. But now there would be no roll call, and so no Democrat would be compelled to record a vote, either for or against. In fact, there were probably very few senators in the chamber when the bill was passed, in a perfunctory way, by a voice vote. Santorum would not be allowed to frame the bill, to point up its meaning, and no voice would be sounded to explain the significance of what was done.
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