Obama and Infanticide

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Barack Obama's opposition as an Illinois State Senator to the Born Alive Infant Protection Act has been making the rounds, with a lot of people overstating their case on both sides. Some conservatives are taking this as a sign that Obama thinks infanticide is morally ok, and some liberals are acting as if his approach is what any supporter of keeping abortion legal before viability should say. I'm not sure either is true, but I'm also not sure this reflects well on Obama.

Here is the law. It says that if a baby is born alive, whether by intended delivery or by failed abortion, it is legally a person, a human being, a child, and an individual. It counts as born alive only if it is completely removed from the mother (ignoring an umbilical cord connection, which does not count as a sufficient connection according to this law). Partial-birth abortion is thus not ruled out, because a partial birth is not a complete removal of the fetus. As long as the birth has not fully taken place, this law threatens no actual abortion rights.

Obama's reason for not supporting this ban is not because he thinks it's ok to kill a born fetus. As far as he's said, he does not actually support infanticide (and he didn't vote against the law; he just voted present, although that in itself was part of a strategy devised by Planned Parenthood of Illinois to protect pro-choice politicians from voters seeing how pro-choice they are). For his actual words, see comment 9 here. What he says is that he worries about the logic. Here is what seems to me to be his argument:

1. The Supreme Court has declared laws banning abortion before viability to be unconstitutional.
2. There is no difference between the moral status of a fetus inside its mother before viability and the moral status of a born baby at the same developmental stage.
3. Therefore, banning the killing of a born baby at this stage is morally tantamount to banning abortion at a pre-viability stage. (from 2)
4. Therefore, the law is unconstitutional. (from 1 and 3)

This argument does not amount to supporting infanticide morally. It is merely an argument based on the constitutional issue. According to Supreme Court precedent, this law is unconstitutional, and thus it's pointless to pass it. He gives no moral argument against the ban, just a pragmatic one. So from this speech alone it's impossible to get any clear support for infanticide.

Nevertheless, I think this is a terrible argument. The first premise is clearly true. I would argue that the second is also true. I see no difference in the intrinsic moral status of the fetus merely because it is contained within someone or is separate. However, I don't think 1 and 3 guarantee 4. There's no legal reason why morally inconsistent laws can't occur. You can ban something that's morally equivalent to something else that's unconstitutional to ban, as long as the first thing isn't unconstitutional to ban. But the real problem I have with the argument is his inference from 2 to 3.

The standard pro-choice argument is not that a mother has a right to kill a fetus growing within her. Only the most extreme abortion-choice proponents hold such a view. The standard view is that a woman's right to control her body is morally more important than whatever rights a fetus might have. That argument allows for a fetus to have some sort of moral status such that killing it would be prima facie wrong, even if the bodily rights of the mother outweigh that. What this means is that the standard pro-choice argument does not accord a mother the right to the death of the fetus. If it survives removal, her rights have been satisfied. That means the moral status of the fetus is what kicks in to determine what you should do in such a case, and this law settles that question. It does not threaten the woman's bodily rights, at least not according to the standard justification of abortion rights.

What this tells us about Obama is that he probably doesn't hold to the standard justification for abortion rights. If he thinks 3 follows from 2, then he must think a mother actually has a right to the death of the fetus growing within her, even if it's born. If he thinks the moral status of the fetus is what justifies keeping abortion legal, then he must think the pre-viable fetus has no moral status and thus a born pre-viable fetus has no moral status. So the right to expulsion isn't what gives the right to abortion. What gives that right, on Obama's view, is the utter lack of moral status of a human organism halfway through its uterine development.

Now this is a view that some people have. Mary Anne Warren has a paper defending the view that infants born at full term have no intrinsic moral status. She gives other reasons to oppose infanticide, but she doesn't base those on moral status of the fetus. Peter Singer and Michael Tooley actually defend infanticide as morally permissible. But these views are extremely radical. Obama's view (as far as we see here) may not be as radical as Warren's, never mind Tooley and Singer's, but I think it's still far more radical than the view of the majority that supports pre-viability abortion rights.

The U.S. Senate voted 98-0 in favor of a law virtually identical to this one (with the only exception being a clause that makes it explicit that this law doesn't change any legal status of pre-born fetuses). Senator Barbara Boxer (D-CA) gave a floor speech explaining why no pro-choice Democrat should worry about such a bill undermining or conflicting with the Supreme Court's guarantee of abortion rights. Hillary Clinton was among the 98 Senators who voted yes. No senators voted no. Yet Barack Obama refused several times to sign on to what a unanimous U.S. Senate was willing to pass. So I think this is a very good example of how far to the left Obama really is despite the unfounded sense that so many people have of his being a moderate.

Postscript: There is one argument I've seen out there defending opposition to the Illinois law while supporting the federal law:

Obama's campaign did not return calls for comment, but Pam Sutherland, president of the Illinois Planned Parenthood Council, said the Illinois legislation was misleading and a far cry from the Senate's legislation. Obama was aware of this difference, she added.

Sutherland noted that every medical group in the state was opposed to the state legislation, which would have opened the door to "civil suits and criminal charges" for doctors and led directly to an overall ban on abortions.

"The legislation was written to ban abortion, plain and simple," she said. "Sen. Obama saw the legislation, when he was there, for what it was."

On the narrower issue of "born alive" infants, Sutherland said, Planned Parenthood of Illinois worked last year with the anti-abortion group, the Illinois Federation of Right to Life, to pass legislation that protects infants that survive abortion procedures.

This will not fly, however. The only difference between the federal law and the state law is the extra clause in the federal law declaring that the law does not affect any legal status of unborn fetuses. The first reason this difference shouldn't be a deal-breaker is that such a clause is either unnecessary or contradictory. If the law really doesn't affect any legal status of unborn fetuses, then the clause isn't needed. If it does, then adding the clause creates a contradiction in the law, and pro-choicers shouldn't have been supporting the federal version either (and pro-lifers shouldn't have either). But the language of the law is clear enough that it extends only to the born, so I don't think it's contradictory in the final analysis. That means the extra clause is redundant. But either way, one position you cannot take is that it's ok to support the federal version and not the Illinois version if the reason for opposing the Illinois version is what Sutherland and Obama give.

The second reason this defense of Obama won't work is because the Illinois state legislature considered an amended bill that does have the clause from the federal version. Obama killed the amended bill in committee. Unless there's some independent justification for this, I don't see how he could consistently have voted for the federal law that passed the Senate unanimously and garnered a floor speech from Senator Boxer about how no pro-choicer should vote against it. So no matter how you slice it, he really is more liberal on this issue than Barbara Boxer and Hillary Clinton. That really does say something. Both of those senators, as far as I've been able to determine, have consistently voted against any actual restriction of abortion no matter how much support the restriction has popularly, which indicates that they believe the right to abortion is so absolute that any restriction would be immoral.

11 Comments

I agree with you here. If a child is born and is able to survive outside of its mother, intentionally killing the child at that point would clearly be infanticide; the operative words, of course, are born and intentionally.

I don’t think that Obama stepped out-of-bounds morally by taking that stance. I don’t think that he was particularly courageous either. He was walking the political tight rope and seems to have covered himself fairly well by employing lawyerly oratory.

Jeremy: It doesn't look to me like you've got Obama's reasons right. He's not making or relying on any claims about the comparative moral status of this vs. that, or about what's "morally tantamount" to what (your 2 and 3), as far as I can see. His words really don't address any moral issues at all.

What then is he arguing? Well, note that the proposed law doesn't just declare what shall be done if a baby is "born alive" after a certain point in development, but declares the personhood of babies that are "born alive," in the sense it stipulates, "at *any* stage of development" -- including those who have not yet reached viability. Now, given what the proposed law says about what it takes for them to count as "born alive," these babies in effect have to be at least some way into development. But some of the sufficient conditions the proposal lists, I believe, can be met quite early in development. (Don't we get beating hearts and/or pulsating umbilical cords before viability?) Obama seems to be simply arguing that feature of the proposed law makes it unconstitutional: it proposes an account of personhood at odds with the courts' current interpretation of the constitution on when personhood begins. I don't know enough about the then-current state of constitutional law to know if he was right about that claim. (What did the courts say about the personhood of babies "born" with a pulsating umbilical cord but way before they were viable? I don't know, but what Obama says leads me to suspect that there was some ruling indicating that these were not ruled persons.) But at any rate, what he seems to be arguing is nothing about morality, but that the proposed law was unconstitutional b/c of its declaration of the personhood of entities that were not persons by the courts' current interpretation of the constitution.

Well, his first argument is that if you apply terms that would give such a pre-viable born child equal protection under the 14th Amendment then it would forbid abortions. So he calls it an anti-abortion statute. That's not just about the legal status of pre-viable fetuses. It's about his concern that it would apply to pre-viable fetuses in the womb even though it never says any such thing. How would that be unless he's assuming the equal moral status claim?

His second argument is that the Supreme Court drew the line for abortion at viability. After viability abortion can be regulated within limits, but before viability it can't. His reason for saying it crossing the line into unconstitutionality is because he thinks this must go against that somehow. How would it do so? The only thing I can think of is that he's assuming laws requiring physicians to try to keep born pre-viable babies alive would also require them to keep pre-viable fetuses alive in utero.

How would that be unless he's assuming the equal moral status claim?

I don't see how his case is helped at all by making the assumptions you assign to him. You yourself say the resulting argument is "terrible." In general, when you're providing most of the argument in a "well, he must be assuming this and that," and the argument you end up assigning to the guy is just terrible, that might be a sign that you're not construing it right -- you are making it terrible & then complaining about it.

There seems a much better way. What's clear is that he's worried about the constitutionality of the law. Why? Well, in part, it's also clear, because an earlier law had been struck down as unconstitutional. But that's only part of the story because he apparently had thought that earlier bill would be so struck down. He's not very explicit about his earlier, root reason for suspecting such laws of being unconstitutional, and I don't know enough about constitutional law or the content of the previous bill to reconstruct what that reason might be. But it isn't hard to see the general direction of where a constitutional worry might come from. If the current state of constitutional law is that you get a person, in the legal sense, at viability, and then a law comes and says that if the fetus, "at any state of development," even before viability, comes to be outside the mother and has a beating heart or a pulsating umbilical cord, then it becomes a person for legal purposes, it's not hard to see a potential tension there. The proposed law is giving the status of persons to those who, given current constitutional interpretation, weren't considered persons yet. It may be a bit tricky if previous constitutional interpretation never explicitly addressed the issue of fetuses/babies removed from the mother before viability, but I can see how one might worry about the constitutionality of now granting such entities personhood. And when you suspect such a law will be found unconstitutional, and then it is, and then another law comes down the pick with the same problem, well, then, you say basically what Obama said here. All this without making or relying on any claims about what you think is the comparative moral status of this vs. that, or which actions you think are "morally tantamount" to which other actions.

I've tried to figure out what 7th Circuit decision he's referring to, and the only abortion law I can find from Illinois that the 7th Circuit overturned on unconstitutionality grounds was their partial-birth abortion law, which the 7th Circuit had initially upheld before having to submit to the Supreme Court when it declared it unconstitutional. If he's referring to that, I don't know how it declares pre-viability fetuses to be anything. That procedure is about a late-term procedure, and the ground for unconstitutionality had to do with health exceptions and not the status of the fetus. So if that's what he's referring to, then the only connection is that Illinois passed a law that he opposed, and the 7th Circuit eventually overruled it on constitutionality grounds. What made it unconstitutional doesn't have anything in common with his reasons for this being unconstitutional.

Now it's possible that there's some other 7th Circuit decision on an Illinois abortion law that was passed while Obama was in the IL State Senate, but Google isn't being helpful in finding it for me if there is. According to this, his strategy of voting "present" on abortion bills included votes on born-alive legislation, partial-birth abortion bans, and a parental notification law. None of those seem to be the kind of law that would do for your proposed reconstruction. The only other 7th Circuit abortion decision I could find for that period wasn't about a law but about a plaintiff suing his girlfriend for not involving him in an abortion decision.

That leaves me thinking that he either makes a complete non sequitur or he at least has an intermediate premise such as the one I provided. The latter doesn't complete his argument, but it's better than if he just moves from the banning of abortion pre-viability to the born-alive legislation without the intermediate premise I came up with. So I don't think I'm being uncharitable. The only alternative that fits with what I can find is even more uncharitable.

How about?:
1. The courts have ruled that personhood constitutionally begins at viability
2. This law declares some pre-viable human organisms (namely those that are removed from their mother with e.g. a pulsating umbilical cord) to be persons
So, 3. This law is (or at least is likely to be struck down as) unconstitutional

I don't know enough about the state of constitutional law to know if 1 is true or plausible, or is likely what Obama was relying on, but *something* like this seems to be what Obama is suggesting.

I don't know about state courts, but Obama does mention the Supreme Court and the 7th Circuit. I did find a Supreme Court case from the early 80s that relates to born-alive laws and viability.

There seem to be three opinions. On the issue in question, five justices were willing to uphold the law, while four voted against it as written. But there was a further division among the five.

The four dissenters (Blackmun, Brennan, Marshall, Stevens) didn't want to extend this protection to all post-viability cases, because some of them required vacuum-abortions for health reasons, and a second physician is stupid in such cases. They thus think having a second physician there limits the woman's rights as established by Supreme Court precedent. Maybe they're thinking the law requires them not to use that procedure so the second doctor wouldn't be dumb to have, and that limits them when their health might be better served by such a position.

Then the two whose opinion generates the result (Powell, Burger) said that the law as written is fine and expressly committed themselves to this only for post-viability cases, which is what the law covered.

Finally, three justices (O'Connor, White, Rehnquist) wanted to indicate their view that they thought laws like this should be fine even pre-viability. The two justices whose opinion has precedential status didn't go that far, but they also didn't get any precedential status for an opinion that forbids protecting pre-viability fetuses in the same way (and the four-justice opinion doesn't address it, so it's not as if there's a different group forming a majority on this issue).

This is the only case I can find with Supreme Court discussions of pre-viability born fetuses. Three justices took a stance, and six refrained from doing so. No opinion generated a precedent on the issue. So if this is what Obama was referring to, he's simply wrong.

As far as Roe v. Wade is concerned, what is says is that the state has a compelling interest in the life of a fetus once it is viable, and it forbids abortion restrictions before that point. It protects abortion before that point but says nothing about the intrinsic status of the fetus or what must be done or prevented from being done once the abortion takes place (whether it is successful or not). The state can't interfere with the decision to abort or with the abortion itself. But it says nothing about what happens if a fetus survives the abortion.

It does give a reason for the choice of the point of viability, and that's that there is the capability for meaningful life outside the womb. It's also true that it therefore doesn't extend that to born-alive fetuses who aren't viable and thus not capable of meaningful life outside the womb. But it doesn't comment on them at all. It doesn't say the state has no compelling interest in born-alive fetuses. Its concern is with abortion of fetuses in the womb.

So if Obama has in mind just what Roe says, and he's doing what you think he's doing, I don't see how it's a legitimate inference from the what the opinion says, not unless he supplies the very same premise that you wanted to remove from the argument.

I'm re-reading Obama's argument, and I still think his first argument is what I outlined, and his second argument is what you focus on. Here is how the first argument goes, using his mostly own language:

1. This bill declares a fetus to be a person protected by the Equal Protection Clause.
2. If you declare a fetus to be a person protected by the Equal Protection Clause, you thereby forbid abortion.
3. Therefore, this law in effect forbids abortion of pre-viable fetuses, which is unconstitutional by Supreme Court precedent.

Now the mistake I was pointing out was to go from (A) a view about the moral equivalence of a fetus in the womb and one outside it to (B) considering the killing of a fetus in one case to be legally equivalent to the killing of the fetus in the other. Isn't that exactly what the above argument does?

The argument you're attributing to him is the one he gives as his second reason. I think that argument fails (for the reasons I give in the 4:20 comment above) if he's just going by RoeCasey v. Planned Parenthood and Planned Parenthood v. Ashcroft, which I discuss in the first half of the 4:20 comment above). But the first reason he gives seems to make exactly the mistake I initially said he makes.

Wow, I think this issue just highlights all the more the flawed thinking of most "pro-choice" people. I put that in quotes, because it my experience that the majority of pro-choice people, don't deal with the rights issue, but rather just think that the fetus isn't really human. (therefore the fetus doesn't have a right to life, nor is the right to choice an important issue). And yet though, we we say "well its come out" it suddenly has rights to most people. Well why is that? Why does location make such a difference? Why should it?

It depends on whether you're talking about the more careful thinkers or the general populace. The most careful thinkers don't commit that error. They think of rights coming in gradually as certain levels of complexity increase. But what changes at birth is that bodily rights no longer matter.

On the popular level, I don't know how many have as careful a view, but if I judge by the ethics students I've had over the years I'd say that it's not a large percentage.

This is just an argument about the "location" of the baby...and yes it's a baby!! This seriously makes me sick! Please people, get a clue! It is a baby at conception..it's not a matter of opinion..it's just the truth. Killing the baby at ANY stage is murder. I ask, what is the difference between anyone who decides to have an abortion and Casey Anthony? It's just a matter of location...isn't it? No woman, no human...has the right to take any life...no matter what the situation is. If we allow this...then open up the jails and let the prisoners free.

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