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The Born-Alive Act and the Undoing of Obama

That is the title of the latest essay by the inestimable Hadley Arkes at The Catholic Thing. As Peter Wehner points out at National Review Online, the federal Born-Alive Infant Protection Act is the brain-child of Professor Arkes. You can read about the Act and its history in Professor Arkes' wonderful book, Natural Rights and the Right to Choose (Cambridge University Press, 2002). Here are some excerpts from The Catholic Thing piece:

On the matter of when human life began, [Obama] said, that “whether you’re looking at it from a theological perspective or a scientific perspective, answering that question with specificity … is above my pay grade.” In the hands of Obama the meaning of “moral” is recast: What does it mean to say that this is a “moral” question and yet it must depend on judgments that are wholly subjective and personal, and which cannot be judged as true or false? For Obama, a “moral” question is one for which reason can supply no judgment, and the judgment may turn finally turn on nothing more than self-interest.

The question of global warming is a tangled, scientific question, generating serious controversy, and yet Obama has never confessed any disability that prevents him from consulting the testimony, the presentations of evidence, and trying to form a judgment. What prevents him then from consulting the textbooks of embryology or obstetric gynecology, or asking anyone who knows, in an effort to inform his judgment? The textbooks will tell him of course that human life begins with the merger of male and female gametes to form a zygote, a unique being with a genetic definition quite different from that of either parent. If that is too much to absorb, he may retreat to the point readily understood even by people without a college education: A pregnancy test is a sufficient and telling sign that new life is present and growing. We know now that this life does not undergo any change of species from its beginning to its end. Conceived by humans, it cannot be anything other than a human life. And if there was nothing there alive and growing, an abortion would no more be indicated or relevant than a tonsillectomy.


Comments (46)

Dan Bonevac has a blog post that dovetails nicely with Arkes's piece: http://philoofalexandria.wordpress.com/2008/08/19/obama-on-abortion/

Don't you mean that the Act is Professor Arkes' brain-child?

So far, I have seen philosophical arguments used to argue only "what is a life, really" as some sort of defense of abortion. I think this is because the more clear thinking anti-abortion side sees that science has conclusively answered the philosophical question of "what is a life" by defining it as an organism that exhibits normal life functions at the biological level.

Thanks for the catch, William. I've changed it.

It was late and I had just driven 500 miles.


The question asked of Obama was loaded. What Warren should have asked is, How will the government stop women from seeking
and obtaining abortions if they become illegal in America?
I guarantee you, McCain would have been just as tongue tied as Obama was. Can those who oppose abortion name a single
country that has ever been able to stop abortion by making it illegal? If they can, I would like to know.

Robert Berger inquired: "Can those who oppose abortion name a single country that has ever been able to stop abortion by making it illegal?"

Well, can those who oppose MURDER name a single country that has ever been able to STOP MURDER by making it ILLEGAL???

Oh, brother. No, Mr. Berger, it is not a loaded question to ask when an infant should have full human rights. This is not even only about abortion. Increasinlgy, it is about post-birth infanticide--favored by Peter Singer as "legal," carried out legally in the Netherlands. Personhood theory is killing post-birth infants in multiple places and incidents. A child who survived an abortion in Hialeah, Florida, was zipped into a bio-waste disposal bag and smothered there. The prosecutor refused to prosecute after investigating whether the child was "viable," despite the fact that the child had breathed on its own. Perhaps next we will be told that the question we "should ask" is, "How will the government stop people from having their newborn infants killed if it is illegal in America?"

Mr. Berger's failure (admittedly, amongst others) is that he is unable to grasp the mere fact that just because atrocious acts continue to occur even in spite of the fact that they're deemed illegal by the system does not provide actual (let alone, convincing) justification for the legalization of such acts.

If that were the case, then acts currently (legally) defined as murder by the penal code (?) should be made legal as well; after all, these acts continue to be committed in spite of the fact that they're illegal -- why then should we bother with having them made illegal in the first place?!

Not only that, Lydia, Robert's question is a completely different question about how laws should, or can be, enforced (as though, if we answered it, he'd then be satisfied). It's a change of subject. People who are comfortable with abortion do that a lot.

A loaded question would be something like: Mr. Berger, have you stopped beating your wife? A loaded question is not: Mr. Berger, does your wife have the right not to be beaten by anyone?

In fact, the question to Senator Obama was a very easy one for someone who has actually thought about the issue and knows why he believes what he believes. For God's sake, the guy taught Constitutional Law for 5 years at the University of Chicago Law School and has said that reproductive rights was an important aspect of his course! If it's above his pay grade to answer Warren's question, then he should return his salary back to the UofC.

"Can we enforce this law" and "will folks tolerate the enforcement of this law" are (or should be) among the first questions asked when laws are proposed. Experience shows that laws against murder are widely supported (except in the southern part of the country at certain points in our history) while laws against alcohol and drugs are not. Historically abortion laws fell in the latter class. they were designed or enforced to allow some women to have easy access to abortion and others not so much.

i would be interested in knowing just how you all would change that. Realize it or not, the answer to Mr. Berger's question is central to your project. Otherwise all you will produce is, at best, another set of laws that will be evaded and then ignored.

I assume he could have answered the legal aspect of the question just fine but unfortunately chose not to. Chicago didn't pay him to do theology or biology and I'm sure they didn't pay him to cover the topic in a minute or so. .

Another thought. Most of the pro-choice people who support McCain are unaware that he is anti-abortion, just as many of those who support him because of his military record are unaware of his poor record on veteran's benefits. Flogging this issue may have unintended consequences.

I haven't had the time to satisfy myself on the born alive stuff but here is yet another rundown that leads me to believe that there is no there there..


...while laws against alcohol and drugs are not. Historically abortion laws fell in the latter class.
Historically, laws against lynching n****rs fell into the latter class. Fortunately, the good guys didn't listen to arguments like yours.

I believe I referenced the matter but it does make my point. Laws need broad popular support in order to succeed. We could have avoided Jim Crow by hanging the traitors and maintaining Federal troops in the Southern states well into the 20th Century. Would you have been willing to do that?

Conservatives consistently opposed Federal anti-lynching bills and liberals supported them. The Senate recently apologized for failing to pass anti-lynching bills.


Southern conservatives killed the bills (yes they were Democrats then and when liberals in the Democratic Party forced civil rights bills they switched to the Republican Party and purged that party of its liberals).

Ending segregation required sending troops into the south and putting federal judges in charge of the political process in a number of states. It had a number of side effects. Again, how do you propose to enforce these proposed laws in a manner that prevents them from becoming class based?

Anyway, rather than waiving the bloody shirt, how about letting us know what you are willing to do in order to enforce anti-abortion legislation.

So, Al, is there _anything_ that you would say should be illegal even if people like doing it so much that it is hard to enforce the laws? If laws against murdering people like you were hard to enforce (for whatever reason) should they be repealed? If we are talking about some ethnic enclave in which wife beating or rape of women is widely accepted, should we have special laws for that enclave giving no penalties for wife beating and rape? Should honor killing be legal in Muslim countries because it has wide popular support? What about torture? Enslavement? And so forth. It isn't really all just about how easy or hard it is to enforce. Really, it's not.

how about letting us know what you are willing to do in order to enforce anti-abortion legislation.

I thought enforcing legislation was the role of the government. However, the important issue is first overturning that unconstitutional usurption of power by unelected judges known as Roe v. Wade so that the voice of the people can actually be heard. Then we can find out how widely supported or unsupported laws against abortion are in fact. The question of how to enforce laws is somewhat moot if those laws aren't even allowed to be made in the first place. But in proposing legislation, the question to ask is not "how will we enforce this?", but "is this right?" IMHO. Utilitarians will probably disagree with me. But I don't really care.

"'Can we enforce this law' and 'will folks tolerate the enforcement of this law' are (or should be) among the first questions asked when laws are proposed."

I don't recall that the Supreme Court ever examined those questions before striking down all the existing abortion regulations in all 50 states. You speak as though anti-abortion statutes are some brand new idea that have no historical precedent or practice to speak of. "Folks" tolerated the existing regime rather well, and had at their disposal all sorts of legal avenues through which to pursue their desire for change, if they wanted it--the Roe decision did not reflect the general will of the people, and did not result from a major uprsiing by "folks" against some new and unwelcome yoke. You're defending a regime in which no law can even be proposed in the first place, because the existing ones were simply wiped away. There is every reason in the world to think that anti-abortion legislation of varying kinds would receive tremendous popular support in at least some locales across the country, though certainly not all, and most of those laws are really rather easily enforced. Things like, "You can't run abortion mills in our town" will result rather quickly in the closure of abortion mills, a sharp reduction in the number of abortions performed there, and the legal articulation of a basic social disapprobation for the act of abortion. Which is not the same thing as ending abortion per se, but it is rather analagous to bans on brothels, which may not comprehensively end prostitution but does establish a situation in which it becomes very difficult for average men to simply visit a prostitute on his lunch hour. It also makes the possible consequences of engaging in that behavior (e.g., likelihood of disease or public shaming) much more steep, which discourages it further.

It's sort of rich now to pretend that the onus is on the pro-life side to demonstrate that such laws are practical, workable, or tolerable, considering what a recent and brazenly anti-democratic innovation the current regime actually is. And as the previous commenter said, it's also a total change of subject.

The idea that the abortion rate wouldn't be lower if it was a crime to perform an abortion doesn't seem very plausible. My own estimate, looking at abortion rates in other countries and in the U.S. in the past, is that criminalizing abortion would reduce the abortion rate by at least 50%, which would currently mean around 600,000 fewer abortions a year.


To your point, then how does Al consider the issue of female sexual mutilation practiced by Muslims where in their home nations the tradition is accepted and enjoys support but in a different setting, France for example, it is outlawed and despised? Is it Ok then, that the Muslim fathers simply send their daughters on "vacation" to areas where this brutality enjoys support? Is France simply fighting a losing battle in passing laws to prohibit such vacations? Does France have a moral position that is defensible even though it cannot stop the Muslims from mutlilating their daughters to help them control their sexual urges?

I guess Al's opinion would rely heavily on geography and polling. Hmmmm. I mean you can't really enforce the law or stop the brutality. That is tricky.

Nope, I think that stating that mutilating young girls and tearing unborn human beings to pieces is wrong and ought to be forbidden by law is a nice first step.


Must work but, and as usual, Larry has some timely posts:



My point is simple; historically abortion laws were nineteenth century artifacts that were class based legislation, usually more honored in the breach. Support was and is a mile wide and an inch deep - attitudes often change real fast when the discussion changes from "those people" to ones own situation.

What I want to know is just what has changed and how far are you willing to go to stop abortion? So far all I see are admittedly ineffective laws and poorly written laws like 18 USC 1531 as well as a decision by the Supremes that ranks with Plessy for your efforts.

Its easy for folks with the price of a plane ticket or a tank of gas to encumber those who lack the same. No one had to write a book in order to convince societies that rules against murder and theft were justified.


We wrote books, articles, and made speeches to convince people that we had natural rights that were being abused by the British when fighting for our independence. We then wrote books, articles, and made speeches when we applied those principles of freedom to slaves. Gosh darn if we did not write more books when women were recognized as worthy of voting. When the Civil Rights movement was in swing, I think some people wrote some stuff about freedom and equality. So now that people are trying to say that the identity of the unborn is a decided issue scientifically and philosophically and as human beings they deserve the natural rights due to them as "people" under the constitution, we have had to write a book or two to convince people of that fact.

The current pro-life movement is based on an earnest belief that our advanced knowledge of embryology has informed us so that we must evaluate our moral obligations to a human life we see more clearly now than ever before. Even if we stipulated the truth of your statements about class motivations in the past it does not address any of the arguments for the humanity of the unborn today and our moral obligations to them.

Though I think, having read Frank's books, he would take issue with your evaluation of the motivations behind historical laws prohibiting abortion.

As to the specific laws, it has already been demonstrated that the old laws are not so far in antiquity as to be incomprehensible and we can cross the bridge of crafting affective legislation once is no longer "UNCONSTITUTIONAL" to do so. That is when we rely on the abilities of those practiced in crafting law without unreasonable restriction.



"The idea that the abortion rate wouldn't be lower if it was a crime to perform an abortion doesn't seem very plausible. My own estimate, looking at abortion rates in other countries and in the U.S. in the past, is that criminalizing abortion would reduce the abortion rate by at least 50%, which would currently mean around 600,000 fewer abortions a year."

Wouldn't this bit of fact provide further justification as to why Obama and his FOCA agenda should be prevented in the first place?

I am rather amazed how certain individuals seem to detest the horrors of the present-day Holocaust and even admit such details but, yet, not only do nothing to prevent the unmitigated perpetuation of such horrors but even go so far as to advocate these in the form of a vote for Obama!

No one had to write a book in order to convince societies that rules against murder and theft were justified.

Except that is not really true. There were, and in some places still are, tribal cultures in which anyone who was not a member of the tribe has no protection under any kind of rule, law or norm that prevents members of the tribe from killing them, stealing from them &c. if it was in thought to be in the best interest of said member or of the tribe as a whole. The idea that it is wrong to kill anyone or steal from anyone, even if they do not have some close, personal connection to you, is one that is not an automatic part of any and every human civilization. You take the moral norms made inherent in our culture over the long development of Western civilization too much for granted with the above quoted statement.

There were, and in some places still are, tribal cultures in which anyone who was not a member of the tribe has no protection under any kind of rule, law or norm that prevents members of the tribe from killing them, stealing from them &c.

Is that not a difference of degree rather than kind? You aren't claiming that these tribes go around murdering all and sundry, are you? So, yes, they do understand some sort of law or norm. They just haven't, apparently, learned to extend it beyond the tribe, like the rest of us.

Call me an elitist, but I am not taking any cues from the practices of some subset of isolated tribes.

They just haven't, apparently, learned to extend it beyond the tribe, like the rest of us.

That was my point.

Murder and theft : those tribal cultures :: abortion : our culture

It really amazes me how often the "what's your comprehensive legal formula" canard comes up in these discussions. Usually it's an attempt to imply that pro-lifers are a bunch of sadists who want to persecute mothers with hard time and whatever cruel and unusual punishment they can imagine. Here it's used as a supposed "argument" that law would be ineffectual.

But it completely ignores reality.

Reality 1: Difficulties at implementing law is always a problem, and should not prevent us from making evil things illegal. That applies to abortion, murder (the complexities of dealing with murder and all of the possible mitigating circumstances is beyond most peoples' pay-grade), slavery, drugs, whatever. Making reasonable, effective, and compassionate decisions of law is a darn difficult thing to do no matter what the issue is.

Reality 2: Concern about effectiveness is always a problem and should not prevent us from making something illegal. Especially when the crime is the killing of innocent human beings.

Reality 3: Coming up with solutions that implement the law in reasonable and compassionate ways requires the cooperative effort of a lot of people. Most of the interlocutors here would probably be willing to examine various possibilities of enforcement with varying focus upon the "class" issue. Most of them would also probably be too humble to insist that their solutions were the complete and best answers. Everybody knows that there will be challenges to the prospect--deal with it.

Asking for the all the specifics isn't an argument. It's just a way to make the obvious problems that we always face seem somehow more pertinent to abortion than to any other law that has ever been made.

I had written:

They just haven't, apparently, learned to extend it beyond the tribe, like the rest of us.

To which Brendon responded:
That was my point. Murder and theft : those tribal cultures :: abortion : our culture

I am afraid that you have missed my point. Civilization has moved beyond brute tribalism. Murder is not acceptable in our culture and only a decades old, obfuscating argument that abortion is not *really* murder has obscured the truth from those hell-bent on not acknowledging it. But this bit of intellectual dishonesty comes at a price. Babies who manage to be born alive, despite the tender ministrations of the abortionist, pay that price. It will not stop there.

I am afraid that you have missed my point.

No, I believe you have missed my point.

Al said that people do not need to be convinced that murder and theft are wrong, with the implication being, as far as I can tell, that this makes the passing and enforcement of laws against murder and theft different than the passing and enforcement of laws against abortion. I said that Al was incorrect. There are indeed people and cultures that need to be taught that murder and theft are wrong, at least in some cases.

My point was that it does not matter one bit that people some people in our culture need to be persuaded that abortion is a form of murder. This same problem exists in other cultures with regards to actions that we know to be evil. It is no more legitimate to say that abortion is not as evil as other forms of murder because people need to be convinced that these acts are the same in kind than it is to say that the killing of people outside the tribe is not as evil as the killing of people inside the tribe because there are cultures who need to be convinced that these two acts are the same in kind.

In other words, Al seemed to assume that the moral insights discovered and clarified by the great saints and thinkers of the Western tradition are universally known and undeniable and thus fundamentally different from the pro-life position, which appears to be unknowable and deniable. My response was an attempt to demonstrate that this was false and that the argument he seemed to be trying to draw from these errors was absurd.

As far as I can tell, you are arguing that abortion is evil, no matter how many people think otherwise due to bad knowledge, bad logic, or bad faith. If this is indeed what you are arguing, then we are arguing the same thing.


To accentuate your point about the difference in cultures and how this might manifest itself in a difference in values; you may want to bring forward an example from the Spartans in ancient times where babies perceived as weak were discarded altogether and, at the same time, seen as a moral act in accordance to the moral values of their people in those days wherein only the strong should be respected and allowed to exist for the preservation and general welfare of their people.

Submitted as evidence:


Did the Spartans really discard their unfit offspring?

Yes. Greek historian Plutarch (46 A.D. - 127 A.D.) spoke of the Spartan practice of eugenics in his writings:

"If after examination the baby proved well-built and sturdy they [the state] instructed the father to bring it up, and assigned it one of the 9,000 lots of land. But if it was puny and deformed, they dispatched it to what was called 'the place of rejection', a precipitous spot by Mount Taygetus, considering it better both for itself and the state that the child should die if right from its birth it was poorly endowed for health or strength."

Plutarch also wrote about various other customs that the Spartans used to ensure their "good stock":
"If an older man with a young wife should take a liking to one of the well-bred young men and approve of him, he might well introduce him to her so as to fill her with noble sperm and then adopt the child as his own. Conversely, a respectable man who admired someone else's wife noted for her lovely children and her good sense, might gain the husband's permission to sleep with her -- thereby planting in fruitful soil, so to speak, and producing fine children who would be linked to fine ancestors by blood and family."

The Spartan regime tried to separate the weak from the strong at every stage from conception to maturity. Not coincidentally, it faced a brutal political and physical environment and it lacked the modern virtue of humanity (the former may help explain the latter, but it's obviously not the whole story).

Hi Folks! I've been away from the internet for three days because our home access won't be up until late Monday. I'm sitting in a Martin's supermarket with my wife as we pound away on our lap tops, replying to email, tying up loose ends, etc.

In any event, in Defending Life, I deal extensively with the history of abortion legislation and how the criminalizing of it would look post-Roe in light of the many considerations some of you have brought up.

As for history and the reasoning behind Roe, an earlier version of my chapter in Defending Life was published as an article in the Liberty University Law Review in 2006. You can find it on my website here: http://homepage.mac.com/francis.beckwith/RoeLiberty.pdf


McCain himself is starting to talk about Obama on "born alive":


That may mean the issue will get some main stream media attention.

The Zorn Chicago Tribune piece ("What you need to know about the 'Born Alive' controversy and Barack Obama") that "Al" provides a link to above is very helpful:


It contains some important facts (assuming it's all true) that I hadn't seen before.

(I first submitted the two above comments together, as a single comment with two links, and it was not posted, but held up for moderation. When I broke it into two comments, each with one link - no other changes -, they were posted immediately. I don't know what exactly that means about the rules here, since others seem to have successfully posted comments with more than one link. The rules may be a bit complicated...)

Trying to understand the bill, and how much Obama is in the wrong, I'd be interested in knowing why Obama approved an original version and voted for it. He says that the next version would have undone Roe/Wade, and the medical association in Illinois backed him up on it. Also, the facts, aren't they, that he does think late term abortions are bad.


Oh, yeah, he thinks they're _so_ bad that he could stand up (it's on tape) and talk about how "It's coming out, and it's not just limp and dead..." but God forbid we should "burden" the guy who tried his hardest to kill it.

This guy speaks the language of moral monstrosity without turning a hair. He makes me ill.


If Obama is lying about not voting for late term abortions bill because it has an attachment on to it that said even if the mothers where in danger they wouldn't be allowed, then I too would be sick too.

I read the link Al provided above. Oh, I just love it: The reason Obama blocked the state bill even though (contrary to what he is saying now) it did indeed contain the "Roe neutrality" language, was because everybody saw the federal law as window dressing, but a state law might actually _have some effect_. That's supposed to make us feel better? And please note, that isn't what Obama says. It wouldn't sound nearly as good: "I've been completely wrong in what I've been saying about how the state law didn't contain the neutrality language. Oops. It actually did. My bad. No, the real reason I didn't vote for the state law but my federal fellow Democrats voted for the federal version is because the federal version wouldn't do anything to protect infants born alive accidentally after an abortion, but the state version might. And we can't have that."

The bill that Obama was against, was not simply a law to protect babies born alive after an abortion, but as with so many of these bills had parts added on, that didn't need to be there, that made it unwanted.

"And in part because the proposals were usually introduced with companion legislation that revealed a stronger intent behind the law by exposing doctors who perform mid-term abortions to additional legal risk."

The best solution, and one Obama said he'd endorse, would be to make this bill mostly mute, and that is making late term abortions illegal except if a mother's life were in danger.

Russ, have you ever heard the phrase "without penalty, there is no law"? Perhaps you simply do not understand that those "parts added on that made it unwanted," that "companion legislation" that "expos[ed] doctors who perform abortions to additional legal risk," was the only sort of penalty that the state bill came with. That is to say, there were _no_ enforcement provisions per se in the law, which made it just a paper law taken alone (like the federal bill, I'm sorry to add, which had no companion legislation). The liability companion bill _was_ the only penalty for violating the initial law. That is to say, the only thing that could happen to a doctor who let a baby flop around on the table without breathing assistance until it suffered brain damage was that maybe, if the mother felt like it instead of letting them wait until the baby died and then being glad it was all over, she could sue the doctor. Now, this was a bit unlikely to happen anyway, because after all, she was the one who had agreed to the abortion in the first place. But that was it. No other enforcement of the law was involved. That was the reason there was the companion--so that the law would be a law instead of, to use a phrase from the very article the Monster's supporters have linked, "window dressing."

Now, about this "best solution." And Obama taught _law_??? Hello? And we're supposed to be so impressed about his scruples about Roe v. Wade??? Well, either this shows his ignorance or more of his deceptiveness: Okay, let's get this clear. Roe v. Wade was handed down on the same day as Doe v. Bolton. Together they require a "health" exception throuhout to the end of the pregnancy, where 'health' is defined to include such things as "economic" factors. There are abortionists who specialize in late-term abortions all over the country, and there is no possibility of prosecuting them, because under Roe and Doe together, the abortionist gets to define 'health' to mean whatever he wants. Just ask Tiller the Killer in Kansas. That _is_ implied under those precedents. The required 'health' exception has to be big enough to drive a truck through. If Obama doesn't know this, he should definitely return his con-law teaching salary. If he does, then he's deceiving people with this pretense of "outlawing all late-term abortions except if a mother's life were in danger."


That clarifies a lot, thank you.

Jusr a quibble here. The story referenced an article by Obama when he was a 2L at harvard. Tthe Findlaw link is a Mass. case that references the Illinois decision that Obama's article was commenting upon.

I posted them because the implications of extending full personhood have not been fully considered (IMO). One can view the topic as "Oh no, they are murdering babies, do something, anything" or one may have the view that there may be unintended consequences in passing a law that is unlikely to effect matters directly but goes who knows where.

Goes "who knows where." Yes, that's supposed to garner sympathy, just like all that "what are those pro-lifers up to" stuff in the linked piece. That's not legal information. That's just insight into the pro-abort mind. And it certainly does nothing to address the facts that a) Obama thinks we shouldn't call live, born infants persons in law and b) he's not told the truth about the history of his actions on this issue.

"That's not legal information..."

I don't know what you read, but I posted links to a Massachusetts court decision and a Politico story about a Law Review article Obama wrote as a 2L member of the Harvard Law Review. You may not like the information but if a state supreme court decision and a law review article on a decision from the supreme court of another state doesn't constitute "legal information", just what would constitute "legal information"?

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