I want to thank Christopher Tollefsen for doing a lovely, thoughtful, penetrating reprise of the argument in my book, Natural Rights & the Right to Choose: namely, that as people have talked themselves into the “right to choose abortion,” they have had to talk themselves out of the logic of natural rights.
James Wilson raised the question, if we have natural rights, when do they begin? And the answer was that they begin as soon as we begin to be, which is why, as he said, the common law casts protection over human life from the first stirring in the womb—which is to say, as it is known that the offspring is there.
One way or another, the partisans of abortion have had to talk themselves out of the notion that the human being inside the womb has any intrinsic moral worth, the source in turn of rights of intrinsic worth. But if that is true for the child in the womb, it is true for the rest of us as well. If we have rights then, we can get them only when they are conferred by the people with the power to confer them. And so even if there were such a thing as a “right to abortion,” it is a right stripped of its moral logic. It would be a right conferred by the powerful, and it could be withdrawn by the powerful when it no longer serves their interest.
But Tollefsen raised the issue of the book in a timely way because of Kermit Gosnell’s trial. For the book also contained a memoir of that “most modest first step” in legislating on abortion: the move to protect simply the child who survived an abortion. That was our bill, cast in that awful legislative language, as the Born-Alive Infants’ Protection Act in 2002.
Tollefsen’s piece is especially timely because of an unfolding scandal, not among liberals, but among conservatives and even pro-life organizations.
Fox News started twitting the liberal media for their pervasive refusal to cover the Gosnell trial and what it revealed about the logic of “abortion rights.” But the conservative media—and most unaccountably of all, the pro-life organizations—have filtered from their own accounts any reminder that we have indeed passed a federal law to bar the kinds of killing carried out in Dr. Gosnell’s “clinic.”
I posted a piece in the Weekly Standard to point out this screening by conservatives—and what we are losing now, in a critical teaching moment, by not using this crisis at hand to bring attention back to the Born-Alive Act.
Two critical “hooks” would bring us back to that act.
First, we thought at the time we were pressing for the act that we were dealing with only a handful of cases, and we were simply seeking to plant in the law this cardinal premise: even the child marked for abortion has a claim to the protection of the law, a claim that cannot be contingent on whether he is wanted or whether his presence serves the interest of anyone else.
But we discovered that this situation occurs far more often than even we had suspected. One recent account cited over 1,200 of these cases “reported” in 2010. The most frequent instance seems to be the “live-birth abortion”—delivering the child alive and then putting him or her in the Refuse Room to die.
Second, for the sake of averting a veto from President Clinton, the managers of the bill removed the civil penalties from the bill, and made it a pure “teaching” bill, planting key premises. And yet, even without penalties, that act stands as a powerful lever now, because any hospital or clinic that houses the “live-birth abortion” could conceivably lose all federal funds and tax exemptions.
But now, with the Gosnell case, we have the perfect moment in Congress to hold hearings on experiences under the act: Why has the act been so hard to enforce? What has been done under the Bush and Obama administrations to enforce it? Given the findings of the Gosnell case, why should we not restore the civil penalties that were in the original bill?
Not a single Democrat in Congress finally voted against the bill, though many were clearly uncomfortable voting for it. But vote for it they did, and the question may be aptly put now: If the Democrats agreed that it was “wrong” to kill a child who survived an abortion, what kind of penalty should be measured to that wrong? How serious a wrong did they think it was?
The word has come to me that there is some movement afoot in the House to schedule hearings on the Born-Alive Act. But word came late last week, through a pro-life group, that Senator Mike Lee has introduced an amendment calling for “immediate congressional action.” Toward what end? In the words put out by his office: to “investigate and correct abusive, unsanitary, and illegal practices”; to gather information about interstate referrals for “dangerous or illegal second and third trimester abortions”; and to conduct hearings on abortions performed at or near the point of vulnerability.
Lee has been touted as one of the young, emerging talents in the Senate, joined often by Ted Cruz. Are these brilliant friends of ours—or their accomplished staffs—paying attention? There is no need for a “resolution,” Senator Lee, for in case you haven’t noticed, we already have a federal statute here. And this is not about second or third term abortions; this is about killing a child who has already emerged from the womb.
Of course we were raising from the beginning the question of what was different about that same child five minutes, five days, five weeks, five months earlier. But the teaching cannot take place when our most accomplished young legislators on the pro-life side either have no clue about how to teach, or seem not to understand the premises we planted in the law, the premises that Chris Tollefsen has explained again in such a luminous way.
And as for the pro-life groups: Why are you suffering such a distraction of mind? Why aren’t you weighing in now to add your voice to a call for those hearings on the Born-Alive Act? This is our moment; we should have the wit to seize it.
Hadley Arkes is Edward Ney Professor of American Institutions at Amherst College. He is the author of many books, including Natural Rights and the Right to Choose.