Does Obama Support the Killing of Infants? (Kmiec on the Born Alive Bill)

It's become standard part of the Republican script to say that Obama supports not only killing of the unborn but of the born. As former Senator Fred Thompson put it during the Republican convention, "We need a President who doesn't think that the protection of the unborn or a newly born baby is above his pay grade". This is a reference to his opposition of the Born Alive bill in the Illinois legislature.-- now the subject of new anti-Obama TV commercials.

It's complicated, and Obama does seem to have dissembled about one bit of legislative history. Here are the official run downs from National Right to Life, the Obama campaign and the non-partisan Factcheck.org.

But is it really possible that he supported killing little babies who have survived abortions?

I got new perspective on this issue reading a new book by Douglas Kmiec called, Can a Catholic Support Him? Kmiec is an Obama supporter, but the's a very conservative, pro-life Catholic Republican. He's not only pro-life, he literally was one of the Reagan administration officials who crafted the pro-life legal agenda, including its efforts to overturn Roe v. Wade.

Below is his full take on the Born Alive controversy. His key point: the "Born Alive" bill would have required doctors to administer "heroic" care to non-viable babies that were going to die, and then punish the doctors if they didn'.t. "The act imposes on the birth process the over-extension of life support to a dying patient without any reasoned chance of survival," he writes.

Let me say right at top, that if I were in the Illinois legislature I would have given this law my vote. That said, this legislation, in my opinion and, I believe, in Senator Obama's as well, was not aimed at saving lives so much as shaming them. Now, the history of this measure, which is quite convoluted, is being used to suggest that Senator Obama is a proponent of infanticide. This is an outrageous smear as the detailed accounting of this episode by a Chicago Tribune reporter reveals if anyone cares to look before indulging the accusation. As a man who views his own daughters as the miraculous gift of the Creator that they are, the Senator is justifiably angered by what would very likely be libelous blogs were he not a public figure.

So what does the "Born Alive" Act do? Largely, it redefines what it means to be "born alive." From the time of ancient common law, "born alive" has meant live birth at or near the end of a full term pregnancy with a reasonable prospect of survival. If a woman sadly miscarries earlier and expels a non-viable, but temporarily alive, but unborn child with a transient heartbeat, there isn't a county recorder in the country who would record a live birth. The miscarriage is sad enough; we don't worsen it with the grief of death before life has meaningfully taken hold. But that's what the "Born Alive" Act does. For the most part, it redefines live birth to include non-viable unborn who lack any meaningful chance of survival. In essence, the act imposes on the birth process the over-extension of life support to a dying patient without any reasoned chance of survival. Medical ethics does not require so called "heroic" care at either end of life, and neither does Catholic teaching.

You may have noticed my hedge. I said "for the most part." Insofar as the existing law of the Supreme Court at any time during pregnancy, and it does by means of an overbroad health exception that Senator Obama is on record as quite appropriately wanting to draft more rigorously, a very late term abortion (which thankfully is already extremely rare) could - if the abortion procedure was botched - lead to delivery of a viable unborn child. It is that possibility that would have led me to support that law. And by happenstance, it was that rare possibility that led Senator Obama to tell the legislative drafters that if they would more tightly focus their legislation on viable infants who could in fact be helped, he would sign on. They wouldn't. He didn't. End of story.

Except it illustrates the heartlessness, and deviousness, of the legislating game in which a principled man like Senator Obama will have no part. This law was not put forward to advance the cause of life so much as to advance in a Potemkin-like way the "life credentials" of those who advocate such measures. Of course, many Catholics and people of all faiths who come to the side of legislation like this do so out of good will. They still trust enough to believe the titles of proposed bills and be horrified that is the tragedy of abortion. Senator Obama is savvy enough to read the laws presented to him, and dedicated enough to authentically "choose life" by addressing in a tangible way the social or economic circumstances that prompt the mother to contemplate the horror of abortion of her child and the invasive intrusion of her person. No, the intent of the "Born Alive" Act was to use the law to recriminate against the women involved, to criminally intimidate the participating doctors (indeed, companion legislation would have greatly increased the potential civil liability of the doctor - a fact which partially explains the opposition of the Illinois Medical Society), and apply without purpose medical equipment that most assuredly has better placement.

There have been very real political for Senator Obama for his honest appraisal of this legal charade. Without a face-to-face conversation or a book-length examination like this one - which runs way beyond the modern political soundbite--the Senator is left only with an accurate, succinct, but insufficient lawyers statement that the Act is very likely unconstitutional in most of its applications, and in any event, there are general in just about every state - including Illinois - already protecting viable, premature infants from harm. In the meantime, the good will of people who so desperately want to help women make a life-affirming choice are led astray by Republican Faith Partisans, who only want to make a ruckus and score points for the "right" side. It remains to be determined whether the partisans will mislead an entire nation away from the very person whose leadership could actually make a difference.

Senator Obama decided to avoid the duplicity and unconstitutionality of legislation so cleverly (some might say diabolically) that few lawmakers dared to vote against it. As I said, I would have voted for the measure just so we didn't miss the one-in-a-million miracle infant surviving an induced abortion in viable condition. Of course, if Senator Obama's amendment had been given consideration, I would have given that support as well, since then the law would have actually supplied the specific, abortion-context duty of care on doctors and hospitals, the proponents - at least the good faith ones - claimed to have wanted. The compromise would have honored human life as Pope Benedict XVI and our church requires by widening the class of protected children to include that rare, viable unborn child who has somehow miraculously survived the dissections of the abortionist. And with no money wasted on futile litigation to defend what cannot be defended under existing law, there might even be money to share in support of a new mother and her baby,

Excerpt reprinted by permission of Doug Kmiec. The book, Can a Catholic Support Him? can be purchased here here.