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.