In last night's presidential debate, Sen. John McCain finally found an opportunity to confront Sen. Barack Obama on his vote against protecting children who were born alive after an attempted abortion. Obama's response followed the pattern of his approach to this subject throughout the campaign: deny the facts and confuse the issue. He said:
"There was a bill that was put forward before the Illinois Senate that said you have to provide lifesaving treatment and that would have helped to undermine Roe v. Wade. The fact is that there was already a law on the books in Illinois that required providing lifesaving treatment, which is why not only myself but pro-choice Republicans and Democrats voted against it."
But the facts of the born-alive debate tell a different story.
A few years ago, after it became clear that some infants who were born alive in the course of an attempted induced abortion at Christ Hospital in Chicago and elsewhere were being left to die without even comfort care, Republicans and Democrats around the country united in an effort to make the practice illegal and declare that any child outside the womb, even if she was an abortion survivor whose prospects for long-term survival might be in doubt, was entitled to basic medical care. Even the most ardent advocates of the pro-choice position agreed that a child born alive, even after an attempted abortion, deserves humane treatment.
The tragic stories of infants being left to die moved legislators to act at both the state and federal levels. In Washington, D.C., consensus can be a rare commodity, and never more so than on the issue of abortion. But the Born-Alive Infant Protection Act of 2002 was just such a rarity. The bill passed both houses of Congress without a single dissenting vote-it was 98-0 in the Senate-and numerous states then proceeded to enact similar measures. In Illinois, however, a series of efforts to pass "Born-Alive" legislation from 2001 to 2003 met with stiff resistance from legislators concerned the measure would constrain the right to abortion in the state. Prominent among these opponents, and the only one to actually speak in opposition to the bill when it was debated in 2002, was state Senator Barack Obama.
Obama's case against the bill did not revolve around existing state law, as he seemed to suggest last night. The law Obama referred to in the debate was the Illinois abortion statute enacted in 1975. But at the time of the debate about the Born Alive Act, the Illinois Attorney General had publicly stated that he could not prosecute incidents such as those reported by nurses at Christ Hospital in Chicago and elsewhere (including a baby left to die in a soiled linen closet) because the 1975 law was inadequate. It only protected "viable" infants-and left the determination of viability up to the "medical judgment" of the abortionist who had just failed to kill the baby in the womb. This provision of the law weakened the hand of prosecutors to the vanishing point. That is why the Born Alive Act was necessary-and everybody knew it. Moreover, the Born Alive Act would have had the effect of at least ensuring comfort care to babies whose prospects for long-term survival were dim and who might therefore have been regarded as "nonviable." As Obama and the other legislators knew, without the Born Alive Act these babies could continue to be treated as hospital refuse. That's how the dying baby that Nurse Jill Stanek found in the soiled linen closet got there.
Obama, who in 2003 became the chairman of the state senate's Health and Human Services Committee, argued not that existing law did everything the newly proposed measure would do, but that the born-alive bill would put too much of a burden on the practice of abortion.
"As I understand it," Obama said during the floor debate, "this puts the burden on the attending physician who has determined, since they were performing this procedure, that, in fact, this is a nonviable fetus; that if that fetus, or child—however way you want to describe it—is now outside the mother's womb and the doctor continues to think that it's nonviable but there's, let's say, movement or some indication that, in fact, they're not just coming out limp and dead, that, in fact, they would then have to call a second physician to monitor and check off and make sure that this is not a live child that could be saved." This, he argued, was too much to ask of a doctor performing abortions, and it could also, as he put it, "burden the original decision of the woman and the physician to induce labor and perform an abortion."
To address the concern of Obama and others who believed in a sweeping right to abortion, Illinois legislators in 2003 amended the bill in Obama's committee, inserting language clarifying that the bill would in no way affect the legal status of a human being before birth. It applied only to a child born alive. Identical "neutrality" language in the federal version of the bill had persuaded every single pro-choice legislator in Congress to support the measure. But Obama opposed the bill anyway, and his fellow Democrats followed their chairman's lead, killing the legislation in committee.
When Obama was challenged to explain himself, earlier in this campaign, he at first insisted that he opposed the Born-Alive Act in Illinois because it didn't have a neutrality clause. When critics contended that this claim was false, Obama accused them of "lying." But then the critics produced indisputable documentary evidence that in fact Obama had voted against a bill that did include the neutrality clause. Obama had plainly misrepresented his record. Now he really had some explaining to do.
But Obama still did not tell the truth last night. As his original 2002 statements make clear, he sought to defeat the Born-Alive Act because he recognized that it bears at least implicitly on the larger question of abortion in America. He seemed to realize that the logical implication of protecting the child born alive after an attempted abortion is that abortion involves taking the life of a child in the womb, and that acknowledging that, even at the extreme margins of the practice of abortion, could put the legitimacy of abortion itself in question. Therefore, Obama chose to defend the widest possible scope for legal abortion by building a fence around it, even if that meant permitting a child who survives an abortion to be left to die without even being afforded basic comfort care.
Some of Senator Obama's supporters are now making one last, rather desperate-sounding attempt to defend his votes against protecting infants born alive after unsuccessful abortions. Their argument goes this way: Permitting children who survive attempted abortions to be abandoned is so heinous, so barbaric, that for someone to accuse Senator Obama, a decent man who is himself the father of two daughters, of supporting what amounts to legalized infanticide is too outrageous to merit an answer. There is a problem, though. In light of the documentary evidence that is now before the public, it is clear that the accusation against Senator Obama, however shocking, has the very considerable merit of being true.
Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President's Council on Bioethics and previously served on the United States Commission on Civil Rights. He sits on the editorial board of Public Discourse.
Yuval Levin is a Fellow and Director of the Program on Bioethics and American Democracy of the Ethics and Public Policy Center and senior editor of The New Atlantis.