Has Obama Been Muddying Waters on Born Alive Act?

Influential conservative writers Robert George and Yuval Levin make the case that Barack Obama is obfuscating on why he opposed the Born Alive Act as an Illinois state legislator:

In Washington, D.C., consensus can be a rare commodity, and never more so than on the issue of abortion. But the Born-Alive Infant Protection Act of 2002 was just such a rarity. The bill passed both houses of Congress without a single dissenting vote-it was 98-0 in the Senate-and numerous states then proceeded to enact similar measures. In Illinois, however, a series of efforts to pass ”Born-Alive” legislation from 2001 to 2003 met with stiff resistance from legislators concerned the measure would constrain the right to abortion in the state. Prominent among these opponents, and the only one to actually speak in opposition to the bill when it was debated in 2002, was state Senator Barack Obama.


Obama’s case against the bill did not revolve around existing state law, as he seemed to suggest last night. The law Obama referred to in the debate was the Illinois abortion statute enacted in 1975. But at the time of the debate about the Born Alive Act, the Illinois Attorney General had publicly stated that he could not prosecute incidents such as those reported by nurses at Christ Hospital in Chicago and elsewhere (including a baby left to die in soiled linen closet) because the 1975 law was inadequate. It only protected ”viable” infants-and left the determination of viability up to the ”medical judgment” of the abortionist who had just failed to kill the baby in the womb. This provision of the law weakened the hand of prosecutors to the vanishing point.


Here’s Obama’s explanation from Wednesday’s debate of why he opposed the Born-Alive Bill:

If it sounds incredible that I would vote to withhold lifesaving treatment from an infant, that’s because it’s not true. The — here are the facts.

There was a bill that was put forward before the Illinois Senate that said you have to provide lifesaving treatment and that would have helped to undermine Roe v. Wade. The fact is that there was already a law on the books in Illinois that required providing lifesaving treatment, which is why not only myself but pro-choice Republicans and Democrats voted against it.

And the Illinois Medical Society, the organization of doctors in Illinois, voted against it. Their Hippocratic Oath would have required them to provide care, and there was already a law in the books.


It’s not the first defense Obama has offered for opposing the Born Alive Act. But as far as God-o-Meter can tell, Obama has never specifically responded to the central charge of his pro-life opponents: that the pre-existing Illinois law Obama cited as already protecting babies who survive botched abortions is contingent on the abortion provider declaring those babies “viable”–which many abortion providers would presumably be reluctant to do.

If anyone has seen Obama get specific about “viability,” let GOM know in comments.


Comments read comments(6)
post a comment
Douglas Johnson

posted October 17, 2008 at 3:05 pm

The first time the Born-Alive Infants Protection Act (BAIPA) reached the Illinois Senate floor, on March 30, 2001, Obama was the only senator to speak against it, and his remarks clearly reflect that he holds the most expansive view on the scope of Roe v. Wade and the “right to abortion.” Obama said that “whenever we define a previable fetus as a person that is protected by the equal protection clause or the other elements in the Constitution, what we’re really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a – a child, a nine-month-old — child that was delivered to term.” In order to grasp the import of what he was saying, you have to actually look at the language of the bill he was talking about, a bill that was only three sentences long. As he understood perfectly well, none of the sentences could possibly be construed to apply to a human at any point PRIOR to being born alive.
Here is the bill he was talking about:
[SB1095] AN ACT concerning infants who are born alive.
Sec. 1.36. Born-alive infant.
(a) In determining the meaning of any statute or of any rule, regulation, or interpretation of the various administrative agencies of this State, the words “person”, “human being”, “child”, and “individual” include every infant member of the species homo sapiens who is born alive at any stage of development.
(b) As used in this Section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after that expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
(c) A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.
Section 99. Effective date. This Act takes effect upon becoming law.
[end of bill text]
That’s it. That is the whole thing. Now, Obama was correct, in his Senate floor speech, in observing that this bill defined a baby as a legal “person” even if the baby’s lung development was insufficient to allow long-term survival — BUT it applied this status only if the baby (1) had achieved “complete expulsion or extraction” from the mother, AND (2) was alive, as indicated by the criteria in the bill, which were just the traditional criteria for determining whether a live birth had occurred. It simply did not matter to Obama where the baby was — what mattered was that an abortion was involved.
(Note that Obama’s 2001 objection to the bill is not consistent with his current claim that Illinois law already protected all infants born alive during abortions. Rather, he recognized that the bill proposed to extend or clarify protection to a new class of human infants, and he objected to this.)
As recently as August 19, 2008, the Obama campaign issued a memo that quoted clause (c) of that bill as a particular justification for Obama’s opposition: “A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.” The August 19, 2008 Obama memo called that sentence “Language Clearly Threatening Roe.” Yet, that sentence is inconsistent with Roe only in the mind of somewho who believes that the “right to abortion” extends even beyond the womb.
On March 13, 2003, Obama, by then chairman of the Health and Human Services Committee, presided over a committee session at which that “immediate protection” clause was deleted from the bill, and replaced with the “neutrality clause” copied from the already-enacted federal Born-Alive Infants Protection Act. The neutrality clause read: “(c) Nothing in this Section [the bill] 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 as defined in this Section [the bill].” Chairman Obama readily agreed to the change — and then he led all the committee Democrats in voting down the amended bill, anyway. Because, you see, the amended bill still recognized a living, breathing, “pre-viable” baby, born after an abortion, as a “person.”
To illustrate some of the troubling implications of the rationale that Obama gave for opposing the BAIPA, consider the following hypothetical. (This is a hypothetical offered to illuminate the legal issues, not a description of an actual case, although there are credible accounts of actual cases that are just as bad.)
Hypothetical: In an induced-labor abortion, at 21 weeks gestation, a human is born alive. In this particular case, it appears unlikely that the newborn will survive for six to eight hours. However, after one hour the abortion doctor, who has another appointment, simply picks up a hammer and brings it down on the baby’s skull.
Question: Has this hypothetical abortionist violated the Illinois abortion-survivor law (720 ILCS 510.6), the law that Obama is now trying to hide behind? Answer: The hypothetical abortionist certainly has not violated that law. That law comes into play only when the abortionist declares that the entity being aborted enjoys “a reasonable likelihood of sustained survival . . . outside the womb.” No physician — pro-life or pro-abortion — would affirm that a 21-week fetus has “a reasonable likelihood of sustained survival” outside the womb — the lungs are insufficiently developed. 510.6 simply has no application to this baby.
Question: In such a scenario, what are the implications of Obama’s stated reason, in 2001, for opposing the Born-Alive Infants Protection Act? Answer: Under Obama’s legal theory, the hypothetical doctor would not be committing a crime against a person, because there is no “person” under that theory. It appears that under this theory, the hypothetical abortionist would merely be completing the abortion of a “previable fetus,” albeit outside the womb, still operating under the protection of Roe v. Wade.
Anybody who is in a mood to be indignant about the hypothetical, please be prepared to explain why the Obama campaign reiterated, in writing, on August 19, 2008, that the following clause was particularly objectionable: “A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.
Douglas Johnson
Legislative Director
National Right to Life Committee
Legfederal // at // aol-dot-com
website: www-dot-nrlc-dot-org

report abuse

Steven Ertelt

posted October 17, 2008 at 4:13 pm

Well, the nurse who exposed the practice of born alive abortions that oled to the bill says Obma misrepresented his record.
“Obama voted against this straightforward human rights legislation four times stating as the sole state senator speaking against it on the Senate floor in 2001 it would be ‘unconstitutional’ to declare very premature abortion survivors persons,” Stanek explained.

report abuse

Douglas Johnson

posted October 19, 2008 at 11:13 am

I see there was a typo in the hypothetical scenario in my posting just above. It was supposed to say that “it appears likely that the baby would live for six to eight hours.”

report abuse


posted October 19, 2008 at 2:49 pm

You make the assumption that Dr’s who perform late term abortions because of the possible death of the mother are somehow both immoral and incapable of making an ethical medical decision. On another note, I was very offended by John McCains use of the words”pro-abortion” in last week’s debate. As if those who are pro-choice are all for killin’babies. This characterization of the “enemy” is precisely why no “pro-life” policy will pass into legislation. It is extremist. I think it is more realistic (though maybe just as unfair) to call the movement pro-life movement “anti-choice”, as if all pro-lifers are against the American idea of choice. The name calling, hatred and vitriol is un-christian.

report abuse

Douglas Johnson

posted October 20, 2008 at 12:13 pm

Penny, above, refers to doctors “who perform late term abortions because of the possible death of the mother . . .”
That is hardly the issue. The laws that protected unborn children prior to Roe v. Wade all had exceptions for the extremely rare circumstance in which a mother’s life is endangered by the continuation of the pregnancy. The life-of-mother exception is also contained in the federal Partial-Birth Abortion Ban Act, which Obama opposes, and in the state bill to ban partial-birth abortions, to which he led the opposition while a state senator.
Of course, after the baby is “viable,” even in the rare case in which the mother’s life is in danger, the pregnancy usually can be ended without killing the baby; an early delivery could be induced and the baby cared for as a preemie. If the baby is killed in this circumstance, it is because a dead baby is what is desired.
The Hyde Amendment, which prohibits federal funding for abortion, also has an exception for life-of-mother cases, and rape and incest as well. Obama opposes the Hyde Amendment anyway — he wants unrestricted tax funding of abortion. That is a “pro-abortion” position.
Douglas Johnson
Legislative Director
National Right to Life Committee (NRLC)

report abuse


posted October 20, 2008 at 2:22 pm

This isn’t that complicated, if you have some principles. Obama is looking to gain as many votes as possible by equivocating, while McCain stands for life.

report abuse

Post a Comment

By submitting these comments, I agree to the terms of service, rules of conduct and privacy policy (the "agreements"). I understand and agree that any content I post is licensed to and may be used by in accordance with the agreements.

Previous Posts

Closed for the Season
With Election Day finally having come and gone, God-o-Meter is closing up shop till 2012--or at least 2010. Till then, get your faith and politics fix over at Beliefnet editor-in-chief Steve Waldman's blog. 7 ...

posted 4:32:33pm Nov. 19, 2008 | read full post »

On The Religious Left, Great Expectations
The first priorities for Barack Obama's administration will be the economy and a variety of foreign policy issues. But the burgeoning religious left, which worked so hard to get Obama elected, expects some movement on its issues, including a ...

posted 1:49:31pm Nov. 07, 2008 | read full post »

Howard Dean's Vindication
God-o-Meter wrote a piece for today's Roll Call on the vindication of Democratic National Committee chairman Howard Dean's much-derided 50-State Strategy, which is largely about reaching out to the nation's more religious voters in the red ...

posted 2:01:06pm Nov. 06, 2008 | read full post »

A Post-Election Chat with Ralph Reed
Amid today's talk that Barack Obama has narrowed the God Gap, God-o-Meter checked in with Ralph Reed, who spearheaded religious outreach for George W. Bush's 2000 and 2004 campaigns and who pioneered such outreach for Republicans as executive ...

posted 3:09:07pm Nov. 05, 2008 | read full post »

More Innacurate Faith Storylines From the Media
God-o-Meter is struck by the number of faith-based storylines the news media appear to have gotten dead wrong this year. One was the line that Obama was poised to make big gains among white votes, especially evangelicals, who were undergoing a ...

posted 11:53:20am Nov. 05, 2008 | read full post »


Report as Inappropriate

You are reporting this content because it violates the Terms of Service.

All reported content is logged for investigation.