This was, I thought, the place to begin a conversation, for even friends who were pro-choice would be willing to protect this child. Of course we were testing the very premises behind a “right to abortion,” and our hope was to move step by step as we persuaded people. And yet, as I explained the other night—and as your writer surely heard me say—our understanding was that, even if we didn’t persuade people to take the next steps, at least we would have rescued a handful of lives out of 1.3 million abortions each year. And in our reckoning, that was no trivial matter. Quite apart from anything said about Barack Obama, your editorial makes a cavalier, defamatory statement when it simply asserts that, for the movers of the bill, “protecting infants was a secondary goal.”
But beyond the defamation offered in passing, the mistakes here were howlers. Your writer did recognize that Obama’s first line of defense was wrong and even a lie: Obama said that he would have voted for the bill if it had contained this clause, contained in the federal bill: that “nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being ‘born alive’ …” (By the way, your editorial omits from that clause the words “any member of the species homo sapiens.” There is a point, of course, to the omission.) But as it turned out that clause was in the bill—it had been adopted by a committee chaired by Obama himself. He voted for that clause before voting against the bill.
That clause, of course, was entirely unnecessary and beside the point. The bill never forbade any abortion, or touched any surgery reaching a child in the womb. The bill dealt entirely with the period after birth, when no one quibbled about the human standing of the child, and the interests of the child no longer encumbered the interests of the mother. The Democrats added that bill as a fig leaf to reassure themselves that they weren’t undercutting Roe v. Wade. But the threat posed to Roe v. Wade lay in the challenge to the premises of Roe, namely that even the child marked for an abortion may claim, at some point, the protection of the law. And that challenge remained even after that irrelevant clause was added to the bill.
The howler in your piece comes with the bizarre claim that a clause of this kind was necessary because “it’s state law, not federal, that actually regulates the practice of abortion.” That is quite bizarre, for as any schoolboy should know, the Constitution and federal law trumps any conflicting policy in the laws of a State. It was the articulation of a “constitutional right to abortion” that swept away all of the laws in the States that forbade or even restricted abortion. And it’s the federal courts that have entered persistently to strike down laws in the States, as in the laws that barred “partial-birth abortion.” I know of no state law actually restricting or forbidding the surgery of abortion that has been upheld since Roe v. Wade. For that reason, that amendment you cite from 2005 was entirely without point: “nothing in this Section shall be construed to affect existing federal or State law regarding abortion.” There was absolutely nothing done by that amendment that had not been contained already in the earlier amendment, accepted by Obama. And nothing in that amendment could possibly alter federal law. It was just another fig leaf, another attempt on the part of Democrats to insist that the bill would not pose any challenge to Roe v. Wade. Once again, it was unnecessary and meaningless.
I remarked that Obama’s position here recalled Chico Marx’s line: “Who are you going to believe, me or your own eyes?” Exhibit one on the people taken in by the illusion is your own writer. He regards it as hyperbolic to charge Obama with a willingness to defend infanticide. Well, what was it? Obama’s position finally came down to this: So committed was he to preserve the right to abortion unqualified, unrestricted, at any stage, under any circumstances, that he was willing even to withdraw the protections of the law from a child born alive. If that is not infanticide outright, what is it? Remember that the signal case here involved the “induced” or “live-birth” abortion, in which the child was delivered—and then placed in the refuse room to die.
The only way to evade that hard fact of Obama’s position was to cite that law in Illinois that did indeed mandate the protection of children born alive, even after an abortion. But your writer neglects to report what I had conveyed the other night: that the Attorney General in Illinois had ruled that the statute could not indeed be applied to cases in which a child survived an abortion and was put aside to die. The Born-Alive Infants’ Protection Act might not indeed have been needed in Illinois had the authorities been willing to enforce the statutes on the books. But when the authorities held back, it was clear that their understanding still followed that of Judge Haynsworth 30 years earlier: that newborns were protected by the law unless they had survived an abortion. They were not protected because they were not intended to be born alive.
It is mainly in the pages of The Amherst Student that a willingness to test the premises of the law in this way would be regarded as somehow churlish or scurrilous. But that reaction may mark the deeper truth in this editorial that dares not speak its name. The editorial purports to offer a defense of Barack Obama in explaining why he would oppose a bill that was finally accepted by every Democrat in Congress. But the Democrats accepted the bill mainly because they didn’t want the embarrassment of voting against it. They didn’t want to engage the issue and explain why they thought that child marked for an abortion could not indeed claim the protection of the law. By the tone and substance of your writer, I take it that his truer inclination is to say that Obama was quite right in opposing the bill to protect those children. Your writer apparently recognizes that if the law can protect that child, the question would have to arise as to what was different in small human beings seven minutes, seven days, seven months earlier. Evidently he is not ready to take on that question himself. In fact, he seems to think it a mark of skullduggery that we should even pose that question. But how could it ever be illegitimate to insist on hearing the reasons for removing a whole class of human beings from the class of rights-bearing beings protected under the law? If the writer is willing to face that question, it could be an occasion quite fitting for Amherst if he and his friends joined some of the pro-life students on campus in an earnest conversation on this matter. The discussion could be left entirely to the students, having that earnest conversation among themselves. And here I do mean a conversation, not necessarily the theatrics of a debate. But it looks to me that the writer reflects the temper of Amherst as I’ve known it for 42 years; when matters of moral consequence arise, they are often met by sneering, and by the comfortable assumption that everyone here is of the same mind. What we rarely get is a response that rises to the level of addressing serious arguments with reasons open in turn to serious testing.