POLITICS AUGUST 21, 2008
As recently as six weeks ago, Barack Obama hoped to use his moderation and facility with religiously informed rhetoric to inspire a portion of the evangelical vote to defect to the Democratic Party in 2008--a move that might usher in a broader electoral realignment. But events during the past week may very well have derailed this plan for good. On right-wing websites, cable news programs, and near-mainstream newspapers, conservatives are doing their indignant best to spread the word that, as an Illinois state legislator, Obama refused to vote for a bill that protects a child “born alive” in a botched abortion. That makes the senator’s record on abortion, in the words of Commentary’s Peter Wehner, “as extreme as one can possibly be.” As evidence that Obama’s position is (in Wehner’s words again) “extreme, inhumane, and outright brutal,” conservatives are pointing out that only 15 members of the U.S. House voted against the federal version of the bill--the Born Alive Infant Protection Act of 2002--and that it passed the Senate by voice vote with no dissent.
The campaign's response to the controversy shows that it recognizes the damage it could do to Obama's ambitions: Instead of defending the vote, Obama and his surrogates have sought to excuse it. First they insisted he would have supported the Illinois bill had its language resembled the federal version. Then, when it came to light that the language of the two bills was virtually identical, they claimed that the candidate opposed the bill because it had no "neutrality clause"--a statement ensuring that it wouldn't curtail existing abortion rights. And yet it appears that the final version of the bill contained precisely such language--a fact that apparently did nothing to change Obama’s mind about its merits. If conservatives get their way, these crumbling excuses, along with Obama's refusal to answer a question about when a baby acquires human rights at Rick Warren's recent Saddleback church event, will transform Obama in the eyes of evangelicals from an electoral temptation into a morally and politically radioactive "Senator Infanticide." (That’s what the National Review called him on its website’s homepage yesterday.)
Democrats have every reason to lament this turn of events, but they should not consider it a matter of simple bad luck. On the contrary, Obama, in failing to “support” children “born alive,” has fallen into a trap meticulously constructed and laid by the theoconservative intellectuals who have exercised so much influence over the religious right these past several decades.The Born Alive Infant Protection Act is the brain-child of theocon Hadley Arkes, the Edward N. Ney Professor of American Institutions at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington. The roots of the bill go back 20 years, to President George H. W. Bush's general election contest with Michael Dukakis. In a debating kit he was asked to prepare for the Republican candidate, Arkes made an extraordinary series of assertions. Abortion, he argued, could be considered a constitutional right only by denying the personhood of the baby prior to birth. But once this premise was implanted in the law, there was no principled way to outlaw any abortion at any time during pregnancy, right up to--and perhaps even beyond--birth. After all, biological science and sonogram technology both showed that the fetus in utero is substantially similar to a baby outside the womb. The “right to choose” therefore implied a right to infanticide--or as Arkes shockingly put it, a “right to a dead baby.” As a rationalist, Arkes was convinced that such an implication at the level of principle would inevitably become a reality, as the culture slid down the slippery slope on which it had been precariously placed by the Supreme Court's decision in Roe v. Wade.
Faced with the prospect of legalized infanticide in the United States, Arkes urged the first President Bush to make what sounded like an extremely modest proposal. Congress should pass a law declaring that a child born alive after a botched late-term abortion--a child no longer present within his or her mother and thus no longer dependent upon her “choice”--is subject to the full protection of the laws, as is any other person. Not only would such a law prevent explicit acts of infanticide, but, far more importantly, it would also “plant a premise” in the law that would eventually lead in the opposite direction of Roe, emphatically affirming the personhood of the newborn child and thus raising the morally troubling question of whether that personhood could really be denied to the same entity just seconds earlier, when it resided in the mother’s womb. Arkes was convinced that just as the logic of Roe led inexorably toward a right to infanticide, so a declaration of the personhood of the infant “born alive” would have the effect of persuading large numbers of Americans--and perhaps also a decisive number of Supreme Court Justices--to reject abortion-on-demand and, ultimately, to favor outlawing it altogether.
Unsurprisingly, the first President Bush decided against taking Arkes’ advice to turn the presidential debates into multipart seminars on abortion ethics, and over the next twelve years the “born alive” proposal received little attention from politicians. Things began to change, however, by the end of the 1990s. Frustrated at their inability to make even the slightest legislative headway against abortion during Bill Clinton's presidency, a group of pro-life House Republicans began to consider pushing Arkes’ bill in Congress. For one thing, they thought it would be certain to withstand judicial scrutiny. (The law would, in fact, merely restate what was already apparent at several places in the federal code--namely, that newborns, like all persons, are protected by federal law.) The bill would also "teach" citizens about the personhood of the infant "born alive" and supposedly undermine support for legal abortion. But perhaps most significantly, it would have the politically salutary effect of putting Democrats on the spot by making the defense of pro-choice principle synonymous with championing a right to infanticide.
The Born Alive Infants Protection Act was introduced in the House by Representative Charles Canady of Florida in 2000. Arkes led the House testimony in July and was followed by theocon Robert P. George of Princeton, who proclaimed that “if weak and vulnerable members of the human family ... can be defined out of the community of [those] whose fundamental rights must be respected and protected by law, [then] the constitutional principle of equal protection becomes a sham.” Although the National Abortion Rights Action League and other pro-choice groups recognized the threat posed by the bill and opposed its passage, most Democrats viewed it with a mix of perplexity and indifference.
Representative Jerrold Nadler of New York was an exception. Understanding perfectly well the intent behind the bill, he nonetheless realized that there was no way to mount an effective opposition to it. The next best thing would be to deprive the Republicans of an opportunity to “educate” the public on the issue, and so Nadler advised his fellow Democrats to allow the bill to pass with overwhelming support and thus also with a minimum of publicity. (Obama is now paying the political price for handling the issue much less deftly.)
With the 2000 presidential race entering its final months and the campaign of George W. Bush nervous about raising any controversial issues, the Senate chose not to bring the bill to the floor for a vote. Plans to revive the bill in the next Congress were then delayed by the September 11 attacks, which forced all non-essential legislative business to the back burner for several months. But by March 2002, Congressional Republicans were ready to try again. The bill quickly passed the House by a wide margin and then made its way to the Senate, where Republican Senator Rick Santorum took on the task of ensuring the bill’s passage.
In a private conversation at the bill-signing ceremony, George W. Bush thanked Arkes for his tireless work and described the bill as “a first step in changing the culture” of the United States. Echoing the sentiment in his public remarks, the president spoke prospectively about future battles on behalf of a “culture of life": "The Born Alive Infants Protection Act is a step toward the day when every child is welcomed in life and protected in law. It is a step toward the day when the promises of the Declaration of Independence will apply to everyone, not just those with the voice and power to defend their rights. This law is a step toward the day when America fully becomes, in the words of Pope John Paul II, 'a hospitable, a welcoming culture.'"
How could a law that adds nothing substantive to the federal code accomplish so much? Regardless of whether it ultimately has the pedagogical effect Arkes thought it would, there can be no denying that his bill has now made a noteworthy contribution--damaging the campaign of a pro-choice candidate for president. We don't yet know how significant that damage will prove to be. But if Obama loses the election by a narrow margin, Arkes and his theoconservative allies will have reason to congratulate themselves on their contribution to the outcome.
Damon Linker is a senior writing fellow in the Center for Critical Writing at the University of Pennsylvania. Much of this piece was adapted from his book The Theocons (Anchor Books).