Why The Gianna Jessen 'Botched Abortion' Ad Is Inaccurate

This anti-Obama ad featuring Gianna Jessen, the survivor of a botched abortion, is powerful and moving. It vividly shows the horrors of late term abortions, and reminds us of the powerfully important issues at stake in the abortion debate - including ideas that politicians like to sometimes gloss over.

However, the one thing it does not prove is its central political claim: "My name is Gianna Jessen, born 31 years ago after a failed abortion. But if Barack Obama had his say, I wouldn't be here."

Here's why. Pro-life advocates were recommending "Born Alive" legislation because of what they viewed as a growing problem: some doctors, courts and lawyers were operating on the assumption that babies could be left to die if the doctor viewed them as not viable. Pro-life activists believed that was outrageous, and "viability" should have nothing to do with it. If they came out alive, then they were alive. Period. Through the "Born Alive" legislation, they could insure that non-viable babies would not be killed, and that borderline infants would not be maliciously classified as non-viable.

In other words, the key legal goal was not protecting viable infants - who already were protected under law - but non-viable infants and those on the borderline.

Gianna Jessen, by her own account, was a clear "viable" infant. She was aborted at seven and half months, and therefore would have almost certainly been covered by any existing statute.

Jessen points out that one of the reasons she likely survived was that the abortionist wasn't there that day. She may well be right. An abortionist has a conflict of interest: he would have an incentive to declare that any baby produced through a botched abortion was non-viable. To state anything else would be to admit to horribly botching the abortion. It is certainly possible that the doctor would have broken the law.

But it would have been an existing law that he was breaking. As Jill Stanek, the pro-life activist who has championed this cause wrote me, "Don't know 1977 CA abortion/personhood laws, but I expect overtly killing a 29-1/2 gestational week baby would have been illegal. That said, I'm sure it was and is done all the time."

If Gianna Jessen had been killed it wouldn't have been because of the lack of a good law, it would have been because the doctor violated the law. Killing Jessen after the birth would have been illegal, with or without the Born Alive bill.

Now, I write this not as a defense of Obama's position or a critique of the Born Alive bill. In a separate post, I describe why I think Obama was wrong (and also why I think the issue isn't quite what the pro-lifers say either). But my point here is that the case of Gianna Jessen may raise awareness about the sanctity of life. It may make a strong case for a ban on late term abortions. The one thing it doesn't do is prove the importance of the Born Alive bill. Obama's position was that viable fetuses should be protected - his disagreement was over non-viable and borderline fetuses -- it not accurate, as the ad says, that "if Barack Obama had his way, I wouldn't be here."