On the Born-Alive Infants Protection Act of 2001
Ney Professor of Jurisprudence and
Hearings on H.R. 2175
A Bill to Protect Infants Who Are Born Alive
Committee on the Judiciary
House of Representatives
The Congress of the United States
July 12, 2001
Chairman Chabot, Members of the Committee:
My name is Hadley Arkes. I am currently the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. I've taught at Amherst since 1966, with the exception of several years in which I have been in Washington on leave and visiting at places like the Brookings Institution and the Woodrow Wilson Center at the Smithsonian Institution. My main interests as a writer and a teacher have been focussed on political philosophy, public policy, and constitutional law. I have written, in that vein, several books, published by Princeton University Press, including The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). I have had a strong interest in the so-called "life issues," of abortion and euthanasia, but those interests spring from the central concern in my work, which involves the moral ground on which the laws would have to find their justification.
I had the privilege of testifying before this committee last year on this same bill, which passed the House by a vote of 380-15. I would say now again, with renewed conviction, that the bill introduced by Congressman Chabot, HR 2175, the "Born-Alive Infants Protection Act" offers the most modest and the gentlest step that is imaginable in dealing with the question of abortion; and at the same time it is the approach that goes most deeply to the root of things. That combination, of the gentlest measure, and the measure running deepest, offers the best chance we have seen, over the past 28 years, to draw all sides into a conversation, and achieve the kind of settlement of this issue in our politics that can only be achieved by the political branches.
The refrain has been heard, at every turn, that abortion is one of the most emotional and divisive issues in our politics. And yet, there has been, for years, a remarkable measure of consensus in this country on abortion, a consensus that draws in Democrats as well as Republicans, pro-choicers as well as pro-lifers. The surveys show that even people who call themselves "pro-choice" do not think that all abortions should be permitted. Indeed, they have expressed a willingness to restrict, through the law, a large number of abortions that are now permitted in the law. But that consensus has not been able to manifest itself in our laws, because the opinions of the public have not been allowed to shape the laws that the courts will permit. At the same time, I've made the argument over the years that our problems here would not be solved even if the elves could come in the middle of the night and remove Roe v. Wade from the records of our law. Even if that decision were overruled overnight, the distemper and rancor in our political life would not be removed. For many people would feel themselves dispossessed of something they have been encouraged to regard by now as one of their first freedoms under the Constitution.
Evidently, we would need a conversation before we could begin to legislate on this question. But what makes that conversation possible is the fact that there has been, as I say, a surprising degree of consensus that has not been allowed to manifest itself on this matter of abortion. The news that took years finally to break through to the American public is that the laws on abortion in this country, fashioned by the courts, permit abortion for any reason at all, through all stages of the pregnancy--and even, as we have seen, at the time of a live birth, with the partial-birth abortion. But the surveys have shown for years that only about 22-27 per cent of the public supports this policy of abortion on demand, for any reason, at any time. Even many people who call themselves pro-choice do not think that abortions should be performed in the late stages of pregnancy, and for less than weighty reasons. People may support a right to abortion under some circumstances (most notably, when the life of the mother is endangered), but many of them still hold that a human life should not be taken for the sake of removing financial strain in the family, removing barriers to the career of a woman, or serving the convenience of the parents. (1)
Most people do not think that abortions should be performed because the child is likely to be deaf or blind, and the opposition to abortion for these reasons is often quite independent of the age of the unborn child. My own surmise here is that most people think it would be wrong to take the life of any person because he happens to be deaf or blind. And if they think this kind of killing would be wrong at any age of the victim, they may conclude that the principle would be indifferent, in the same way, to the age of the child in the womb.
I could go on, but these points have been documented well by now in the public surveys. And yet, this constellation of opinion, rather stable over 25 years, has had no significant impact on the laws on abortion, shaped and sustained by the courts. Congressman Chabot's bill offers the chance finally to let that opinion of the public manifest itself in our laws. It does that, also, in the gentlest and most powerful way by beginning the conversation at the place that should command the most overwhelming consensus across our political divisions: the place where we act simply to preserve the life of the child born alive, the child who survives an abortion. That moment marks the earliest possible time, associated with an abortion, when the interests of the pregnant woman can be separated entirely from the interests of the child. Even if Roe v. Wadearticulated an unqualified right on the part of a woman to end her pregnancy, the pregnancy would now be over. No right to end the pregnancy would require at this moment the death of the child.
And of course no one, at that moment, claims to be suffering any doubt that we are dealing with a human being--as though the offspring of homo sapiens could have been anything less than human at any phase in its life. This is the first moment then, under our current law, when we should be able to declare, with unchecked conviction, that the law may extend its protections over that child. Or to put it more precisely, that is a moment in which it could be said for that child engaged in an abortion what could be said for any other child, or person, in the country: namely, that the claim of the child to the protections of the law could not possibly pivot on the question of whether anyone happens to "want" her.
We would be in a condition truly miserable if we could not count on certain natural human sympathies at work to protect the child, and there seems to be a normal tendency on the part of parents and hospitals to supply that care to the child who surprises everyone by surviving the abortion. And yet, the law frequently comes into play precisely because parents do not always have this inclination to protect their children. As we have ample reason by now to know, some parents may be inclined to abuse or even kill their born children. In the case of abortion, the matter is complicated for us by the fact that the very logic of "abortion rights" seems to create a momentum in principle to let the child die. Jill Stanek, who is joining us today in this hearing, offers a report from a respectable hospitable in our own time where that logic has been allowed to play itself out in real cases. She reports on the so-called "live birth" abortions, where children are delivered and simply left unattended, to die. I take it as a blessing that we are still capable of reacting with shock when these cases spring up, but they should have ceased long ago to have caused surprise. For the very logic that attends the "right to abortion" prevents that right from being cabined, or confined, to the child in the womb. That logic must move outside the womb if the child happens to survive, and we ought to take account here of those decisions, rendered in the courts, that have now made this point chillingly clear to us. In a notable case from South Carolina in 1977, Judge Clement Haynsworth confronted the situation of a child marked for abortion, a child of 25 weeks gestation. The child had survived the abortion, undergone one surgery, and lived for 20 days before he died. (2) The question had been posed as to whether there had been an obligation to preserve the life of that child. And the answer, tendered by Haynsworth, was no. After all, the mother had decided on an abortion, and therefore, as Haynsworth said, "the fetus in this case was not a person whose life state law could protect." (Floyd v. Anders, 440 F. Supp. 535, at 539.) The right exercised by the mother could not be frustrated, or negated, by the accident that the child happened to live. Or to put it more baldly, the right to an abortion must entail nothing less than the right to an "effective abortion," or a dead child.
Several years later, in Planned Parenthood v. Ashcroft (1983), Justice Powell noted, in a footnote, a doctor who had made that argument quite explicitly: that the right to an abortion meant an effective abortion or a dead child. Justice Powell pronounced that opinion "remarkable." (3) From that comment, offered in passing in a footnote, even some pro-life lawyers have drawn the inference that the Supreme Court has rejected that argument. (4) But as any lawyer should know, to state that this claim is "remarkable" is not exactly the same as pronouncing it "wrong," and still less is it to explain the grounds of its wrongness.
And now, just last summer, only a few days after this Committee had met to consider the Born-Alive Infants Protection Act, a federal appellate court offered
the most sobering confirmation that Haynsworth's judgment was not at all an aberration in the law. A panel of three judges in the Third Circuit struck down
New Jersey's version of a law on partial-birth. That move was expected in the wake of the Supreme Court's decision a month earlier, inStenberg v. Carhart.
But Judge Barry, writing for the panel, gave the decision and added twist: With language rather colored, she expressed her contempt for the effort to draw a
line between the child in the womb and the child at the point of birth. That distinction has been known to common sense for millennia, but the application of
that distinction in these case, she thought, involved "semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion": the
Legislature would have us accept, and the public believe, that during a "partial-birth abortion" the fetus is in the process of being "born" at the time of its
demise. It is not. A woman seeking an abortion is plainly not seeking to give birth. (Planned Parenthood v. Farmer, 220 F.3d 127, at 143 [July, 2000])
If there was ever a decision that embodied the very vices it was decrying, this must surely be it, for the argument here now was that it was all, in the end, a matter of perceptions, of "semantics" and "line-drawing": There were no objective facts-no birth, no "child" being killed at the point of birth, because the mother, you see, had elected an abortion. Once she had made that choice, there was no child to be killed, no birth to take place. For as Judge Barry said, the pregnant woman was "plainly not seeking to give birth." This decision must mark the emergence of a kind of "postmodern" jurisprudence, where theories ever more imaginative simply displace objective facts or recast them to mean something else. But it also confirms what even many pro-life lawyers had refused to believe: Judge Haynsworth's opinion in Floyd v. Anders was not an anomaly or aberration; it expressed the understanding that had now become the operational doctrine among many federal judges.
At the same time, that understanding was merging in the most fearful way with the decision last year in Stenberg v. Carhart, where the Court began to lay the
path, and prepare the public mind, for a certain blurring of the boundaries as abortion spills over into infanticide. In his opinion for the Court, Justice Breyer
argued that the partial-birth abortion (Dilation and Extraction [D&X], as grisly as it is, could still be reckoned as safer for the pregnant woman than the more
familiar method of dismembering the child in the womb. As Breyer explained:
The use of instruments within the uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create
similar dangers. and fetal tissue accidently left behind can cause infection and various other complications. (6)
Is the implication not obvious? The avoidance of the usual method of abortion now warrants killing a child with 70 per cent of the body dangling out of the birth canal. On the same premises, would it not be even safer to deliver the child whole and simply let it die? For the doctor could then wholly avoid the insertion of instruments into the uterus or the dismembering that would allow fetal parts to be left behind, where they could be the cause of infection. With these steps, the Court has brought us to the threshold of outright infanticide, and it takes but the shortest step to cross that threshold. One must wonder then whether the majority in Stenberg v. Carhart is preparing us for a holding even more advanced and astounding. But the point is that it will have ceased to be astounding if we offer no response and permit no line to be drawn finally at infanticide.
To our friends then who say that this bill is not needed, we would have to say: Look about you, and seen plainly what is there. People who share your position think there is not the slightest inconsistency in claiming that there is a right to a dead child, and that the child who survives the abortion has no claim to the protection of the law. The people who make this argument, unashamedly, think that it is not only consistent, but virtually entailed, or made necessary, by the logic of "abortion rights." As you look about you in this country, can we not see, in fact, a notable drift in the same direction, with hospitals such as Christ Hospital in Oaklawn, Illinois, or with the appointment of Prof. Peter Singer to Princeton University. That a leading university would appoint to a prestigious chair an outright defender of infanticide is but one sign in a drift of some parts of liberal opinion, to be far more accepting of infanticide, or at least to break down our lingering prejudices against the killing of infants. In his testimony to the Committee last year, Professor Robert George, the McCormick Professor at Princeton, noted that the appointment of Mr. Singer at Princeton was not an isolated, curious instance. It was part, rather, of a trend in evidence in other parts of the academy to make the public more suggestible to the notion of infanticide as a legitimate thing. The people who arranged the appointment of Professor Singer to a chair at Princeton were well aware of his views; indeed those views formed the main part of the attraction. His elevation was, for them, a means of making a dramatic point in public. And the point was: that we should recede from our adamant opposition to infanticide; that we should treat that aversion, not as commitment anchored in principle, but as a social prejudice, and like all prejudices, subject to erosion with the advent of new and better reasons.
In the meantime, the evidence from abroad already gives warning as to how much that erosion is underway, even in the camp of people noted for their expansive social sympathies. Over the last few years, we have seen a controversy in Australia over the treatment of children who survive abortions, and we have seen the most jolting statement on this matter put out in South Africa by the Department of Health, the agency that oversees the practice of medicine in that country. In 1997, the Department put out new guidelines, instructing doctors and nurses that "if an infant is born who gasps for breath, it is advised that the foetus does not receive any resuscitation measures." (7) In Australia, in 1999, a controversy was ignited when doctors, and certain agencies, actually registered their opposition when an agency of the government advised that babies who survive abortions should be given medical care. Mr. Gab Kovacs, the chairman of Family Planning Australia, insisted that babies born at an early gestational age had no realistic chance of survival, and they should be left to succumb. Those are civilized countries, with legal systems based on the British model. But what seems to be at work in both places is a vibrant strand of opinion, holding that the logic of abortion rights entails that right to an "effective abortion" or a dead child.
This is a problem, then, for the liberal contingent in our politics. The new acceptance of infanticide is being absorbed now in the body of their doctrines and
their commitments as a political party. If they think that the refusal of care to the child who survives the abortion is, as we say, "over the top," then it has
become a matter of high urgency for them finally to say that--and to do something now, both modest and emphatic, to draw that line.
Of course, we are likely to hear the argument that a law is not really needed here: the cases are mercifully few, and the dominant inclination among nurses is to nurse, to take care of newborn infants. And yet, as any philosopher or social scientist would know, we can draw no inferences about the understandings that are animating people when we are told that "the dominant practice, among parents, doctors, and hospitals, is to preserve the life of a child who survives an abortion." The fact that they do this, or do it most of the time, does not reveal anything to us about the grounds on which they are acting, or the principles that actually govern their actions. That is the question posed in this simple move by Congressman Chabot: The bill gives us the chance to fix in the law the principle that actually protects the child. And if that is not in fact the principle that explains the motivations of people on all sides, then that is something quite important for all of us to learn.
For those of us who have advocated this bill, the principle would run, as I have suggested, in this way: We think that the inclination to protect the child with the law must imply that the child has a claim to the protection of the law that cannot pivot on the question of whether anyone "wants" her. In that case, we would imply that the child has an intrinsic dignity, which must in turn be the source of rights of an intrinsic dignity, which cannot depend then on the interests or convenience of anyone else. When parents commit infanticide with a child two or three years old, we no longer ask whether the child was straining the parents, or whether the child was unwanted. If we understand that we are dealing with a human being, reasons of convenience and self-interest become radically inadequate in supplying a "justification" for the killing of the child. We would think that the same understanding must come into place for the child who survives the abortion. Now if such a principle cannot be invoked on behalf of that child--if our friends on the other side of the issue of abortion would protect the child but not share these premises of ours--then we would earnestly invite them to explain the principle they would put in its place. If we haven't stated here the reasons that we cast over the child the protections of the law, then what would those reasons be?
We had sought to array those reasons in the form of "findings" attached to this bill. Justice Frankfurter once lamented the loss of those preambles attached to legislation, for those preambles would make explicit the premises behind the bill, and along with that, the rationale and the purpose of the legislation. This modest bill works mainly by planting premises in the law, and I rather regret that the Committee decided to delete the rather impressive chain of reasoning that the staff brought forth as the findings that explain and justify this bill. Nevertheless, those premises are still there; we can still state them, as I have stated them here, and we can make the point that they provide the only coherent grounds for voting this bill in the first place. We can earnestly ask our friends on the other side to correct them, or amend them, if they think we have it wrong. Let us suppose, for example, that someone says, "I would protect the child because the child elicits in me a sense of sympathy." But if that were the ground, the explanation has to do more with ourselves, with our feelings, and with our sense of what is pleasing or satisfying to us, or agreeable to our own interests. By implication, of course, there would be no obligation to protect the child when that course of action did not serve our interests or convenience.
My own sense is that people on either side of the controversy over abortion would not be satisfied with that kind of rationale, and that they would see instantly that there is something deeply wrong in it. But if that is the case, does it not become clear, by implication, as to what we must say instead?: Must we not be moved to say that there is something of an intrinsic dignity in the child, or any other human being, something that compels our respect, quite apart from anything in our self-interest? If that cannot be said for the child, newborn, at these first moments, then what can be said for any of the rest of us at any other time, for any other right? If we cannot speak those words, we would seem to imply that none of us has a claim to be respected, or a claim to be the bearers of rights, unless our presence, or our rights, suit the interests of those around us. What would even a "right to abortion" mean under those circumstances? Would it not be then a "right" that depends on the sufferance of others--a right that can be abridged or removed when it no longer suits the interests of a majority, or of those who exercise power?
Frankly, I don't see how we can refuse to protect the child at this point without producing a revolution in our law and deciding that, from this day forward, we will treat as a nullity the laws on infanticide. And of course we cannot say, in an offhand way, that infanticide has ceased to be a big deal without backing into the claim that homicide itself has ceased to be a big deal. People may try to finesse the matter by saying that we should wait perhaps a few days, or a week or two, before we extend the protection of the law to the newborn. But that would simply be a thinly disguised way of saying that we will wait in protecting the child until we are clear that the child is acceptable to someone, that it is in someone's interest to keep or "want" that child.
If I am right, and there is no way of getting around this matter, then Rep. Chabot's modest bill does the service of compelling us to face this elementary question about the human person, the question that stands at the heart of the thing. I would not conceal my own hope or expectation here: Once this first premise is planted, it must project itself back into the situation of the child even while still in the womb. After all, if we come to the understanding that the child has an intrinsic significance as a human being; that her claim to be protected by the law does not pivot on whether anyone wants her; then how could that intrinsic significance be affected by anything as contingent or "extrinsic" as whether she is only two days or two weeks before birth, or whether she is attached by an umbilical cord to her natural mother? How could it hinge on the question of just where she happens for the moment to be lodged or where she is receiving her nourishment? Nothing in her intrinsic significance could be affected by things of this kind when she leaves the womb. By the same logic, none of these attributes could have any moral bearing on the standing of the child to receive the protections of the law when she is still in the womb.
I happen to think myself that, once that first premise is granted, the argument to justify abortion can probably be unraveled step by step. It would be my own purpose to keep taking those steps, one at a time, and keep putting the question to people on the other side, who would be reluctant to waive the right to abortion under any set of circumstances. I would indeed raise the question of the child in late term, or perhaps the child of the "wrong" sex, or the child afflicted with handicaps. But that is to say, I would earnestly press the question with people on the other side, and attempt to persuade them step by step. None of us can foresee just how far that process may run. It is still open to people on the other side to refuse to go along, to insist that they have not been persuaded. They may not in fact see that the willingness to protect the child at birth bears implications for the protection of the child even earlier. But if so, what can we do except keep the conversation going? Yet, with each step we would have succeeded in saving another cluster of lives, even a handful of lives. And for those lives that are saved, the whole project must be eminently worth doing.
May I say then, on this point, that there has never been the slightest concealment: This hope of working step by step, to pare back the doctrine in Roe v. Wade, is something I have proclaimed often in print from the first time, 13 years ago, when I first offered this proposal in public. (8)
In that case, it is hard to see any warrant for the objection cast up by certain adversaries that this is a "dishonest" bill. (9) There has not been a trace of concealment or dissembling on our side; and if the rules of a robust politics are in order, I would avail myself of the same privileges of rhetoric and suggest that the real dissembling is on the other side: The partisans of abortion rights were counseled to vote for this bill rather than to step into our "trap" and vote for infanticide. They were advised, in effect, to play "rope-a-dope"-to go with the punch, and vote for the bill, rather than give us a public argument and draw even more attention to this measure. But plainly, this counsel is one of pure tactics bordering on cynicism, for those who accept the deep logic of abortion rights cannot possibly vote for this bill on the premise that the child has a claim to the protection of the law, regardless of whether anyone happens to want her. In all strictness, the partisans of abortion rights should come out on this question where Judge Haynsworth came out: If a pregnant woman had been willing to give up a child who was so patently her own, she would have arranged for an adoption. If she had a "right" to destroy a child she did not want, nothing in her right could have been impaired by fact that the child came out, as it were, by accident. The right to abortion has been predicated on the premise that the child in the womb has no standing as a human being, and no rights, that the mother is obliged to respect. That the child happens to be born alive would not seem to add anything of moral significance in establishing, for the child, the claim to receive the protections of the law.
It is not our side then that has any explaining to do. The burden really falls to the defenders of abortion rights to say how they could in fact vote for this bill when they could not possibly share the premises or principles that would justify this measure. In contrast, it must be said that the most "honest" response on other side was the response of the National Abortion Rights Action League, who opposed this bill from the outset. In the name of prudence this group has been counseled now to mute its opposition, but its opposition to this bill in principle offers the most eloquent confirmation of the understanding behind our bill. NARAL is nothing if not clear-headed on the issues of principle, and it recognizes, more than its allies care to admit, that any move to recognize the child as a being with an intrinsic dignity, coming within the protection of the law, must plant a principle that would run all the way back. That small concession in principle would indeed threaten the rightness of abortion at the root of its moral claim.
In this respect, the people at NARAL see through all of the legal definitions and distinctions-and see right through to the heart of things. After all, if abortion were understood strictly, nothing in this bill could possibly threaten any rights articulated in Roe v. Wade. As Professor Gerard Bradley noted last year, in his testimony for this Committee, "The Roe Court often referred to "potential life", and used that term interchangeably with the 'fetus', or the child in utero. All these terms were contrasted to the child born alive":
Maloy's Medical Dictionary for Lawyers (3rd. 1960) defines pregnancy as "the state of being with young; preparing to bring forth" ; "birth" is "the act of coming into life, or being born". . The Oxford-English Dictionary (2nd edition) defines "birth" as "the bearing of offspring"; "bringing forth". "Pregnant", according to the OED, is "with child or young".
Abortion, these sources and the cases make clear, refers exclusively to terminating a "pregnancy". Another way to terminate a "pregnancy", it is equally clear,
is to give "birth". ... . The woman is not then prohibited, by this or any other act, from securing or completing an "abortion". From the moment of birth on,
"abortion" is, according to standard medical usage, impossible. No "pregnancy" remains to be terminated.
To cast a protection over the child born alive is to cast up no restriction on abortion. The rights proclaimed in Roe v. Wade remain unimpaired. But NARAL
sees, rightly, that the Born-Alive Infants Act recognizes the human standing even of the child marked for abortion. And once that child is recognized for what
it is, at any stage, that recognition must call abortion into question, for it must raise grave questions about the taking of that innocent life, at any age, for
reasons that are self-serving.
The opposition to this bill may be muted then, but it will not be stilled. Many members of Congress will be voting for this bill because they are uneasy over the notion of removing born children from the protection of the law, and yet they are evidently fearful of having Congress act, even to establish the clear limits of that right to abortion. And so we encounter people who say, "We agree with you, but these are rare cases, and as modest as this measure is, it is the first step that allows the Congress to be legislating on abortion. It is the first step toward involving the government in these private questions of abortion."
There are several layers of fallacies involved in this argument, and I don't expect the least acknowledgement that arguments of this kind will emanate from some of the same people who were passionate, several years ago, in advocating the passage of Freedom of Choice Act. That was an effort to codify in our statutes the holding in Roe v. Wade. The political figures and professors who championed that measure apparently did not think that there was anything in the Constitution that barred the Congress from legislating on the matter of abortion, when it came to protecting and promoting abortion. Toward that end, the full resources of the federal government could indeed reach that private matter of abortion, whether it involved the performing of abortions in the military outposts of this country, or providing counseling and support of abortion in private facilities with federal funds.
But there is a curious screening that comes along with this argument when we turn to restrictions on abortion. And what is screened out, most notably, are the powers of Congress and the very design of the Constitution in the separation of powers. When people argue that the federal government should not be involved in these decisions, I usually ask whether they mean that some effort should be made under Art. III, Section 2, to keep the federal courts from intervening in these questions. But that is not what they mean, and one nearly has the impression that the federal courts are somehow not part of the federal government. The federal courts intervened decisively in this matter of abortion in the early 1970's, and in Roe v. Wade the Supreme Court virtually swept away the laws that restricted abortion in the fifty States. Was that not an intervention of the federal government?
The federal courts have addressed the question of abortion in all of its dimensions, from the use of prostaglandins, and the methods of abortion, to the facilities in which these surgeries may be performed. But we may earnestly ask: How could the judicial branch of the government have the authority to deal with abortion in all of its dimensions, while the legislative branch would not have the slightest authority to address it in any dimension? A contention of that kind simply wars with the most fundamental things that should be understood about the American Constitution, especially by lawyers and members of Congress. Chief Justice Marshall once remarked on this axiom of the Constitution in Cohens v. Virginia, in 1821: "[T]he judicial power of every well constituted government," he said, "must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws." (10) To put it another way, any issue that arose under the Constitution and laws of the United States had to come within the jurisdiction of the federal courts. And yet, even jurists are persistently taken by surprise by the corollary of that axiom: Any issue that comes within the competence the judicial branch must come, presumptively at least, within the reach of the legislative and executive branches. After all, if the Court can articulate new implications of the Fourteenth Amendment--if the Court can proclaim, say, a deeper right on the part of black people not to suffer discriminations based on race-- did Congress not have the power to act on the same clause in the Constitution in vindicating those rights? Congress did exactly that in 1964, and it acted with the wider range of flexibility that a legislative body can summon, when it is not confined, in the style of courts, to the task of addressing cases in controversy between two parties.
We might put the matter finally in this way: If the Court can articulate new rights under the Constitution--including a right to abortion--the legislative branch must be able to act, on the same ground in the Constitution, in filling out those rights. But in filling them out, the legislature must have the power to mark their limits or their borders. It should be as plain as anything could be that what is not tenable under the Constitution is that the Supreme Court can articulate new rights--and then assign to itself a monopoly of the legislative power in shaping those rights.
The genius of the separation of powers is that no one branch can be in complete control over the laws or its own powers. The provision on bills of attainder, for example, means that Congress may not legislate guilt or direct prosecutions under the laws it passes. Congress must work by defining in impersonal terms the nature of the wrong it would forbid, and it must work with the awareness that the law it passes will be placed in other hands to be administered. That is to say, the power to prosecute under the laws may be placed in hands unfriendly to those men and women in Congress who frame the laws. But as John Locke pointed out, that state of affairs provides a wholesome caution to the legislators: "[T]hey are themselves subject to the law they have made; which is a new and near tie upon them to take care that they make them for the public good." (11) In other words, they have an inducement not to pass laws that they would not willingly see enforced even against themselves. In that respect the logic of the separation of powers draws on the logic of a moral principle: do not legislate for other people a rule that you would not see applied universally, to yourself as well as others.
That is a wholesome principle, which may aptly govern the government in general--which means that it is no less wholesome when applied to the judicial branch as well as the legislative. The Congress did not inject the federal government into the matter of abortion; it was the Supreme Court that did that with crashing cymbals, and reverberations continuing to our day. Since Roe v. Wade, the Congress has not exercised its legislative authority to restrict or cabin or scale down in any way the rights that were proclaimed in that landmark case. But now we are at a point at which the Court has struck down the effort of legislatures in 30 States to protect children at the point of birth from one of the most grisly abortions. The Court has brought us to the very threshold of infanticide, and we are asked now to take a deep breath, avert our eyes, and simply get used to the notion that the right to abortion will be spilling past the child in the womb, to order the deaths of children outside the womb. It has become more critical than ever, at this moment, that a line be drawn. Any right must have its limit, including the right to abortion, and if that limit is not found in outright infanticide, we must ask: where could it possibly be? Congress is acting here in the most modest way simply to establish that limit. As a practical matter, it will affect only a handful of cases, but as I say, it will convey lessons running deep.
As we have come to understand, important principles may be vindicated even in a single case. Ollie's Barbecue in Birmingham, Alabama, was one family restaurant, but the Civil Rights Act of 1964 was tested and vindicated in the case of that one, local establishment. There may be a score of cases facing us here, with the infants who survive the abortion; and yet the principle has an import that goes well beyond the number of cases. But even so, even if we have but a handful of cases, would there not be a vast good contained in the move to save this handful of lives? From the massive volume of abortions in this country--from that 1.3 million carried out each year--why should we not take even this small gesture and rescue, from that ocean of deaths, a handful of lives? Why should we disdain that project as an undertaking too small for this Congress? Let us not confuse the modest with the insignificant.
At the same time I would enter the plea that we do not turn away from this modest but significant measure by invoking a misplaced concern for the extensiveness of the federal code as bar to further legislation. When I appeared last before this Committee, on the earlier version of this bill, Congressman Watt pointed out that there were several thousand references to "persons" in the federal code. This bill works, of course, by providing that all references to "persons" in the federal code will encompass now children who survive abortions. Again, there is no mandate here for heroic surgery, or for protections that run beyond those given to other persons under the law. The law would simply enjoin us to treat these newborns, surviving an abortion, on the same plane as we would treat other newborns, and not turn away from their care. Congressman Watt raised with me the concern over whether this alteration, or enlargement, in the coverage of "persons" might have some unanticipated and awkward effects as it is grafted onto the meaning of persons in the several thousand uses of that term in the federal code. The Congressman asked whether I had begun to look into that array of references to "person." I responded that I'd sampled some of them, but that it really did not matter to the issue in principle. A certain static entered the air, and I'm not sure that my explanation made it across the ether, and so I would offer it again. I had drawn on the analogy of Edward Bates, Lincoln's first Attorney General, when he was issuing an opinion of the Attorney General in guiding the government in the treatment of free black persons and resisting the Dred Scott decision of 1857. Bates announced that, in the understanding of the Lincoln Administration, black people born free in the United States would indeed be considered as "citizens" of the United States (the decision of the Supreme Court to the contrary notwithstanding). (12) And that move seemed to incorporate Lincoln's understanding that the reference to "persons" in the Privileges and Immunities Clause covered, in its terms, all people, black as well as white. I suggested then that when the Lincoln Administration issued its ruling, on the understanding guiding the Administration, that understanding could not have been defeated by someone invoking the complexity of the federal code and saying, "There are several thousand references to 'persons' and 'citizens' in the federal code. Shouldn't you spend more time looking into the bulk of those references before you install a change that can affect so many parts of our law?"
There was no need to do such a thing if we understood that if there is a real principle engaged, that principle will cover every instance or application. As I remarked to Congressman Watt, once we are clear on the principle by which the ball rolls down the inclined plane, as the angle of inclination is altered, we no longer have to ask what the effect would be if we had a blue plane or a yellow one, or an aluminum ball or a wooden one. And if we understand, for example, that it is wrong to draw adverse inferences about people on the basis of race, we would no longer have to ask whether racial discrimination would be quite as wrong in regulating access to tennis courts or swimming pools, as well as to schools. Our contention in this bill is that there is no defensible ground in principle to remove a newborn from the protections of the law because she happened to survive an abortion. Nothing in that accident could possibly affect in any way the innocence of the child, her standing as a human being, or her claim to receive the same protections that extend to any other newborn. The people who do not share our position would be free, of course, to challenge our reasoning on all of these points. But if they cannot quarrel with that reasoning, then we would simply suggest that there is no conceivable set of circumstances in which the innocence of the child would be impaired. And therefore, we can see no conceivable set of circumstances that could justify removing that child from the protections of the law.
Lincoln once remarked, in a famous line, that "in giving freedom to the slave, we assurefreedom to the free--honorable alike in what we give, and what we preserve." (13) In this case, we might say that, in setting in place these, most elementary protections for human life, we are securing the ground for all of our rights, for the born as well as the unborn. This is the gentlest step to take, and to paraphrase Lincoln from another occasion, let the vast future not lament our having failed to take it.
1. See "Abortion and Moral Beliefs: A Survey of American Opinion," Washington, D.C., February 28, 1991, p. 38. The study was conducted in the field by the Gallup organization, and commissioned by Americans United for Life, a pro-life group. But the survey was designed by Profs. James Davis Hunter (University of Virginia), Carl Bowman (Bridgewater College), Robert Wuthnow (Princeton). And more recently, see CNN/USA Today/Gallup poll: April 30-May 2, 1999.
2. 440 F. Supp. 535, at 539 (1977).
3. 462 U.S. 476, at 485, n. 7 (1983).
4. One lawyer also recalls, in this vein, that the Supreme Court actually reversed the holding inFloyd v. Anders, or rather sent the case back for a reconsideration. But in an opinion per curiamthe Supreme Court sent the case back on the ground that "the District Court may have reached [its] conclusion on the basis of an erroneous concept of 'viability,' which refers to potential, rather than actual, survival of the fetus outside the womb." (5)
5. Anders v. Floyd, 440 U.S. 445 (1979); emphasis added.
6. Slip opinion, Section I B.
7. See "Abortion Babies 'Should be Left to Die,' by Angella Johnson, African New Service, March 17, 1997. One female doctor declared that the directive was "inhuman and against all my principles." Other reports suggested that as many as 50 per cent of the nurses and "health workers" in the country would refuse to comply.
8. See my piece in National Review (October 28, 1988), pp. 30 ff., and "Anti-Abortion, But Politically Smart," Wall Street Journal (March 28, 1995), Editorial page.
9. See the Congressional Record (September 26, 2000), p. H8157.
10. 6 Wheaton 264, at 384.
11. John Locke, Second Treatise on Civil Government, Sec. 143.
12. See his Opinion published under the heading of "Citizenship" in Opinions of the Attorneys General, vol. X (November 29, 1862) pp. 382-413.
13. Lincoln, Message to Congress (December 1, 1862), in The Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), Vol. V, p. 537.