Abort, Retry, or Ignore?
The Simple Strategy the Political Class Won’t Use to Protect Life
by Hadley Arkes
For the last three or four years we have been at the threshold of the endgame on abortion. But almost no one in the leadership of the Republican party seems to have recognized the moment—or had the will to take even the simplest moves to act upon it. And the simplest moves were all that were needed.
Critical Steps
The first critical step had been taken in the summer of 2002, with the passage of the Born-Alive Infants Protection Act. That Act cast the protections of law around a child who survived an abortion. It was the most modest first step on abortion, meant to lay the groundwork for other steps to come.
One federal judge had declared that a child who survived an abortion was not a child protected by the law; he had been, rather, a fetus marked for termination. The right to an abortion was the right to an “effective abortion” or a dead child. The Congress would now reject that claim, and in protecting the child it would establish that even the child marked for an abortion had a claim to the protections of the law.
After some real strain among the Democrats, the bill finally passed without a dissenting vote from either party. The next year the Senate completed the passage, for the third time, of the bill on partial-birth abortion. This time, with a Republican President, it was signed into law. Still there were 151 votes against that bill in the House, 141 of them from Democrats.
After many challenges and blocking in the federal courts, the bill was upheld by the Supreme Court in June 2007, in Gonzales v. Carhart, by the narrowest vote (5–4). For the first time since Roe v. Wade the Supreme Court had sustained a bill that actually barred a certain kind of abortion.
The Born-Alive Act had actually done the same thing; it barred what has become known as the “live-birth abortion,” where the child is born alive and then put aside to die. But that Act has never been challenged in a court. Or to put it another way, no challenge has been posed to the constitutionality of that first, critical act of legislation in marking a limit to the right to abortion. That cardinal fact may yet come into play.
With these two moves in legislation, the pieces were now in hand for the endgame on abortion.
Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and one of the authors of the Born-Alive Infants Protection Act. His most recent book is Natural Rights and the Right to Choose (Cambridge).
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