Making Sense of the Born Alive Controversy: The Verdict on Obama

Some anti-Obama forces have taken a legitimate issue and turned it into an illegitimate smear. The legitimate issue is this: Obama supported legislation that could have potentially allowed for babies who came out alive during the course of an abortion to be left to die. (More on why he did that in a minute.)

The anti-Obama forces now claim that Obama, therefore, "favors infanticide," which strikes me as an unfair characterization:
"His vote in favor of infanticide" - Catholic.org
"voted in favor of infanticide" - National Review
"Obama's 10 reasons for supporting infanticide" -- WND.com
"Barack Obama Admits He Supported Infanticide" - Human Events ]
"Obama On His Support for Infanticide" - LaShawn Barner
"Believes and favors infanticide. Not just abortion, but infanticide." - Rush Limbaugh
"Obama's support for infanticide." - Inside Catholic

Someone who favors weak penalties for crimes may (or may not) make possible more murders. But that doesn't mean he favors murder. President Bush was criticized for not giving proper body armor to our soldiers; that doesn't mean he favored their potential murder. Pro-life folks will say that I'm making a distinction without a difference. If he allows for a baby to die, then he's favoring infanticide. But to me there is a meaningful difference between saying that a candidate favors a situation that results in death and saying he wants to murder infants.

Obama today would support the Born Alive legislation. This may seem like a weak defense; sure, he would support it now; he's been suffering politically! Nonetheless, he now says he would have supported the bill (endorsed by the pro life groups) that passed the legislature after he'd left and that he would have voted for the bill that passed Congress.

This doesn't eliminate the issue of what judgment Obama showed back then (a fair issue) but it does reduce the possibility that Obama would allow for "infanticide" to occur on his watch. Obama and McCain now have identical positions.

This episode does indeed tell us something about Obama: he has been very, very pro-choice. The episode does show him to be a down-the-line pro-choice legislator. In fact, the charge that Obama is the most pro-choice candidate in years may well be true (though the other Democrats were pretty pro-choice too). When I read through the legislative history, I came to believe that Obama's general impulse was: when it doubt, side with NARAL. If you're ardently pro-life, you are absolutely justified in being scared of Obama for that reason alone, without having cast him as a serial killer.

In fact, if you're pro-life there are substantively far more persuasive points to be made against Obama - the most important of which is that he strongly supports the Freedom of Choice Act, which would wipe out many state laws restricting abortion.

The Born Alive ad doesn't prove what it intends to prove. (Explanation here)

Obama's claims that he is an abortion centrist are becoming increasingly difficult to believe. I do think it is possible to be pro-choice and pro-life at the same time. You can want the choice to ultimately be with the woman but still want to reduce the number of abortions in America. That's why the position articulated by Obama at the Saddleback Civil and to some degree in the Democratic Platform was conceptually important. If he were actually to follow through on that, providing a concrete agenda for reducing the number of abortions through adoption tax credits, maternal health care and prevention, he could make a strong case that his past pro-choice activities should be seen in a new, broader context: one in which he wants to put the power of the state behind reducing the number of abortions.

However, as I've written repeatedly, the evidence is mounting that Obama does not place real emphasis on abortion reduction. He's run two abortion ads now - neither of which mention abortion reduction. His new campaign book doesn't mention providing aid to pregnant mothers, instead only backing the parts of abortion reduction favored by pro-choice groups (i.e. birth control and sex ed). In the heat of the political campaign - perhaps in his yearning to win Hillary voters -- the Obama campaign has sided with the pro-choice forces, not the pro-life progressives who wanted to keep abortion legal but reduce the numbers. Maybe he'll prove me wrong in the next few weeks but as of now, it's awfully hard to take him seriously on abortion reduction, especially in light of his previous down-the-line support of the pro-choice agenda and his support for the Freedom of Choice Act, which would likely increase the number of abortions.

And now for the nub of the issue: Was Obama right or wrong about the Born Alive bill?

Having read through the various arguments back and forth, here's my gut about what actually happened and what was actually at stake. The crux of the debate was over what, legally, counts as "alive." At the time, some doctors, courts and lawyers were operating on the assumption that a baby was effectively viewed as alive only if it was "viable," i.e it could survive, even with life support. That was, in effect, Obama's view.

The bill declared that the very act of being born and still being alive, gave you protections. Being alive was defined as one who "breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles." Before the law: a baby who had a pulsating umbilical cord but who would not - in the view of the doctors - survive would be allowed to die. After the law: the question of viability would be removed from the equation. If they were born, then they were deemed to be alive. Period.

As a result of the redefinition, doctors would need to treat any living baby that was produced through an abortion the same as one produced through an intentional birth, including taking urgent steps to keep it alive. That's why some pro-choice leaders viewed it as an attack on Roe v. Wade. The abortion process sometimes results in non-viable fetuses/babies living for a short time; to outlaw that, was to prohibit a legal form of abortion.

To some degree, what this is really about is who you trust to make that decision. The pro-choice forces and the Illinois Medical Society argued that "the doctor" was in the best position to make such a decision, not some anti-abortion activists. The Born Alive bill was accompanied by legislation making it easier to sue, feeding doctors fears that it really would be the trial lawyers working with anti-abortion groups that would wrest authority from the doctors.

On the other hand, the pro-life forces argue that the doctor in charge happens to be an abortionist, someone with a vested interest in claiming that the baby was not viable. For an abortionist to admit that the baby was viable he would be admitting that he failed at the basic task of performing a successful abortion - a profound conflict of interest. This strikes me as a very legitimate concern on the part of the pro-life advocates. They argued that its "alive"-ness should simply be assumed: if the baby is alive, it's then a case for the neo-natal doctor.

I hope you can see from my description that the born alive bill was neither a slam dunk, unconstitutional, boneheaded bill (as the Obama campaign said) nor a clear, black-and-white verdict on whether you care about life. It was a gray-area dispute over how non-viable fetuses brought forth during an abortion should be treated.

I think I also now understand why Obama has given such varied and shifting answers on this. My guess: the real reason he opposed it is that her preferred the old definition that focused on viability. But try saying that out loud: "I believe that babies that are still alive should be allowed to quietly die. " It's actually a defensible position. If you support mercy killing for terminally ill patients, for instance, you'd feel totally comfortable with allowing non-viable babies brought forth during an abortion to die, too. But it is excruciatingly difficult to explain without sounding like Dr. Kevorkian. You'd have to say what many people believe and yet is still harsh in the articulation: "Some things that are alive should be allowed to die. It is neither compassionate nor wise to sustain life that will not survive." How's that for winning campaign line? Better just say it's "unconstitutional." (For a more positive view of why Obama did what he did, see Doug Kmiec's book excerpt. For a less positive view, read the National Right to Life Committee's site)

My personal view is that Obama made a mistake in opposing the bill. He obviously made a mistake politically. But more important, he made a mistake in concluding that because the legislation was coming from the pro-life forces that it was therefore a trick entirely lacking in merit. He claims he's about bringing people together but in that case, he did not succeed in forging a workable compromise. In fact, when workable compromises came before him, he either voted no or did not embrace them. No, he did not show himself to be an infant killer. That charge is, as he's said, a lie. But he did show himself to be uninterested in forging common ground around abortion. He now says he wants to do just that but given his ardently pro-choice record, the burden of proof is on him to show that he's sincere about that.