More on Obama and the Born-Alive Act

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Remember that Born-Alive bill that requires an additional doctor present at an abortion to keep any survivor of an abortion alive? Back in February, I wrote about Barack Obama's insistence on not passing such a law in Illinois, finding it at best puzzling given his party's wholehearted passing of the law in the U.S. Senate, with people like Barbara Boxer and organizations like NARAL endorsing the law.

As I said in my previous post, I don't think it's fair to call Obama a supporter of infanticide (as distinguished from abortion) because of this. At the same time, I don't see any consistent justification for opposing the law, and his own official reason didn't hold up. He said it was because the federal version had a neutrality clause that stated that the law takes no stance on the issue of the moral status of the fetus, while the Illinois law had no such clause.

At the time, it seems that Obama himself had held up a neutrality amendment in committee, so he was the one to blame for the laws not being similar in that way, and that's no reason not to pass the law if you do support the federal one. I concluded that either he didn't really support the federal law (and was thus lying about his views) or he was just inconsistent in the various things he's said without any sense of really believing anything clear on the matter.

Now it seems Obama actually did put the neutrality amendment before his committee. But then he and all the other Democrats on the committee voted against putting the amended law before the whole Illinois Senate. So, again, I'm not sure what to make of this. Is this another example among many of him simply lying about a past position that embarrasses him politically because it's far to the left of the mainstream, hoping no one would catch up with him on it? Or is there some way to put together what he's said with this revelation? I suppose he could have forgotten what his reasoning at the time was, but it's been an issue in the campaign long enough that he should be thinking it through and preparing a response that fits with the actual Senate records.

What possible motivation could he have had to pass this amendment and then still vote against the bill? It's not just inconsistent with what he's been saying happened. I'm not sure it's even internally consistent. What would be the point of voting for the amendment (an amendment that I'm pretty sure the Republicans had added) and then voting against the amended law? Was there some other amendment to the law that his party, who was in the majority on the committee, somehow couldn't get away from the law? That sounds unlikely. But if it was something in the law proper, then why would he say he would have been fine with the federal version?

According to Justin Taylor, Obama had also defended his past actions by saying "there was already a law in place in Illinois that said that you always have to supply life-saving treatment to any infant under any circumstances...." (See the 8/12 JT comment here.) He cites a David Freddoso book that says that's factually incorrect. Perhaps Obama misunderstood the law, so he may not have been lying, but if that's right then he at least hadn't done his homework, which as a legislator he ought to have been doing. This is second-hand information, so I'm open to correction on this, but I think if these things are right, then this piece of Obama's past that already reflected very badly on him is probably at least a little worse than it had seemed.


I'd be careful about what the facts are here. A lot of this is coming down to various things that supposedly happened in committee, and I've found it hard to track down exactly where this information is coming from. For the floor debates & votes, you can get sent to the Illinois state government web site. But when it comes to what happened in committee, I find (though I haven't researched this carefully yet) myself ending up at web pages like this:
That's a type written page on the National Right to Life web site. I haven't seen where they (NRLC) were getting that from, or any presentation of what exactly the proposals were that were supposedly killed by Obama & Co. (We get descriptions of what was killed or rejected, but we don't get to read any complete proposals.) Or you get this:
Again, where is NRLC getting this, and what exactly are these votes?
My worry -- which I'd be happy to have put to rest if you have info I haven't found yet, which is quite possible b/c I haven't been looking all that hard -- is that what happened in committee is ultimately coming from Republican Illinois senators in that committee. If so, be very suspicious. One of the oldest tricks in the book: Offer your opponent something that includes a nice provision but also a nasty provision (poison). When your opponent rejects your offer, simply report him as having rejected the nice thing.
But maybe you (Jeremy) or someone reading this knows something more about the ultimate sources here. I really am anxious to get the facts straight, whoever they favor.
About Justin Taylor reporting David Freddoso as claiming that Obama's claim about the state of Illinois law being factually incorrect, there is this piece in Chicago Tribune:
The key part:

But if Keyes has ridden here to do battle with those who would callously allow babies to die when they can live on their own, he can saddle up and go home.

For more than 20 years, Illinois law has required that when "there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support," an abortion may only be performed if a physician believes "it is necessary to preserve the life or health of the mother."

And in such cases, the law requires that the doctor use the technique "most likely to preserve the life and health of the fetus" and perform the abortion in the presence of "a physician other than the physician performing or inducing the abortion who shall take control of and provide immediate medical care for any child born alive as a result of the abortion."

The Tribune columnist doesn't specify what law he's referring to, and it is an opinion piece, but because it's at a major paper, it was presumably fact-checked, and so at this point seems a better source than some guy commenting on a blog (like I'm doing right now! ) about something he read.

Keith, I tried to find something more substantial on the born-alive issue, but there were so many blogs posting on it that they took up the lion's share of the Google searches, and I eventually gave up. I was hoping to find at least something even criticizing it or responding to it, and nothing was coming up. The only things friendly to Obama on the issue were fairly old. But I would indeed welcome any substantiation or refutation of these. I'm much more concerned about knowing what happened than I am trying to score points against anyone, and I'm hoping something will shed light on what has motivated Obama on this issue, because I really can't make sense of what leads him to do some of the things he does, especially when it comes to issues in this general area.

Well, Freddoso's National Review opinion column isn't the Chicago Tribune, but it's more than a comment on a blog. That's all I've been able to find right now. It does contain a little more on some of this.

I found a piece by Terence Jeffrey, on Human that names a couple of Republican Illinois senators as sources:
That may be helpful for anyone trying to track this down. (I'll try later doing searches on the names of those senators.)
I put a comment on this up on one of Frank Beckwith's recent posts at What's Wrong With the World. I would have pasted that comment here, too, but it's long & it overlaps quite a bit with my already longish first comment here.

Or: what would be the point of voting for the law since it had already been signed into federal law (which law preempted state law)?

But if that were his reason, you might think he'd bother to say it when questioned about this instead of saying things that make no sense.

I've been following the various posts and discussions on this issue on different blogs and I appreciate both Jeremy and Keith seeking more information on this and from less questionable sources (it's sad seeing your motives questioned and the ad hominem attacks you've received).

I was wondering what y'all thought of this article in the Chicago Tribune on Tuesday,0,1260617.story

What I thought was interesting was the following: "Seldom mentioned in the dust-up is that in 2005 Illinois lawmakers passed a version of the abortion bill that Obama and abortion opponents both support."

What I wonder is if there is a law in place that was passed later on that satisfies those who were pushing for the "Born Alive" bill or law (I don't know what to call it) and Obama did support it then what is the big deal?

Maybe y'all can shed some light on this for me.

Also I am curious what any of you might have thought about the answer to this issue that is on Obama's website (there are 2 pages, one as recent as Tuesday)?

Bryan L

Bryan, I don't see how any of that helps with this new revelation, assuming it's accurate. Nothing in there explains why Obama would bother to vote for the amendment in committee and then vote against taking the amended law to the Senate floor to vote on it.

I also see a couple inaccuracies in some of this. One is that claim that the federal law and the state law were different. They were exactly the same. The only difference was the one bit that constituted the amendment in question. Otherwise, I think they have exactly the same impact.

At one point the so-called fact-checkers (who seem to me to be merely Obama supporters rather than independent fact-checkers based on their tone) claim that the difference between the laws lies in how it would affect Illinois law. Since the federal law just revises a minor federal law, and the Illinois law is a major change to Illinois law, that has to be taken into account. This doesn't hold up. If the federal law applied to Illinois, that it would have the same impact on Illinois as the state law. Since they're worded nearly identically, I can't see how this wouldn't be so. So if it just revises a federal law, then the federal law already applies, and supporting the federal version should imply support for a state version that says the same thing (as the amended version did). And if the state version requires a huge revision to state law, so too would the effect on the state of the federal version, and he ought to have opposed the federal version to be consistent.

It repeats his crazy statement that the law, unamended, would have conflicted with Supreme Court precedent, which I discussed heavily in my comments on my previous post on the topic. I still think that assertion is completely irrational and well against the plain meaning of the words of the law and of Supreme Court precedent, and it makes me wonder what's motivating him to concoct such ridiculous arguments.


you said:
"At one point the so-called fact-checkers (who seem to me to be merely Obama supporters rather than independent fact-checkers based on their tone)"

It's Obama's website. Why would he use independent fact checkers? Of course they're gonna be Obama supporters.

Did you read all of the most recent page on Obama's site?

There is a document at the bottom by Planned Parenthood (another non-neutral participant) that speaks about some of the differences in the Federal and State laws and what their impact was. Of course I know it's put out by Planned Parenthood but I'll take whatever info I can get right now and it's helpful in it's layout of the timeline.


It's a little misleading to use the term 'fact-check' for partisan analysis that doesn't acknowledge all the facts.

Obama's own explanation in 2002 is that the proposed Illinois law defined pre-viable fetuses as persons, which it in no way did. They never commented on the status of fetuses. The federal law (and the amendment Obama voted for in committee before voting against the amended bill) explicitly said that the law didn't comment on the status of fetuses. But the law didn't comment on the status of fetuses even without the amendment. He's drawing that inference, and he's doing so fallaciously, as I argued in my earlier post. The only definition given in the law is of a born-alive infant, which according to the definition does not apply to fetuses who haven't been born.

It's amusing that the Obama campaign thinks it matters that some of the pro-choice senators who voted with Obama were Republicans, as if they're going to be more likely to stick with their party than with their views.

Here's an example of what I said in my last comment:

"The federal legislation is considered to be a restatement of existing federal law. It does not amend or change current Illinois law. Federal law does not regulate abortion practice. That is left to the states. Therefore, it is state legislation that would affect abortion practice in Illinois."

Either this means the federal law doesn't apply in states and thus only covers non-states like D.C., Puerto Rico, or Guam, or it does apply in states. If it applies in states, either it's invalid because it covers something only states can regulate (in which case Roe v. Wade is unconstitutional), or it has the same effect in Illinois that it would have in other states. I don't see how any of these options make the above statement both plausible and significant enough to explain why someone should vote against the law at the state level but support it at the federal level.

One purported difference is that the earlier Illinois bill doesn't spell out exactly what medical care is required. I'm not sure how this is supposed to be definitive for supporting one and not the other. That's never specified. Also, it doesn't explain Obama's own (at the time) justification for why he voted against the bill, since his concern was about conflicting with Supreme Court precedent, not with forcing doctors to perform very specific life-saving procedures instead of others. His concern was with the status of a pre-born fetus, something the bill never says anything about.

So I don't really think there's any reason to see the differences between the federal and Illinois laws as sufficiently different that someone could consistently support one and not the other.

A closer look at the claim that there was already a law in effect requiring this shows that the difference is that this law moves from requiring medical care for those with a reasonable chance to requiring it for those with a less-than-reasonable chance of survival, which Obama and NARAL had no problem with in the federal version (since that covered all born-alive infants as well).

I conclude from the chart at the bottom that Obama's primary opposition is mainly his fallacious argument that defining a born infant as a person, with or without specifying that it doesn't change abortion law (since he still voted against the amended version), somehow creates a legal definition of a pre-born fetus as a person, thus in his view undermining Roe v. Wade despite the fact that no Supreme Court precedent, including that decision, bases its reasoning on whether a fetus is a person. I've spent enough time on that issue in the previous post, which is linked to above, that I don't want to reiterate my arguments against it. His position is relatively extreme among pro-choice views, and a close look at the details on is so-called fact-checking page do much to touch that conclusion.

Thanks for the link to the Chicago Tribune story, Bryan. There's also this, new a couple of days ago, from Zorn, which contains some very significant facts (supposing it's all true) that I hadn't seen before:

I do support the attempt to get the facts straight on what happened in the Illinois Senate, but the attempt (being made in various right-wing blogs) to paint Obama as extreme, even by the standards of liberal democrats, as being way beyond the likes of even Kennedy, Boxer, and Clinton, seems to me quite silly. They're all pretty much on the same page on abortion, and to the extent there are differences, I certainly wouldn't count Obama as the most pro-abortion of the four of them. Recall that though Clinton was happy enough to run to the right of Obama on many issues, when it came to abortion, her complaint about him was that he was "weak on choice." Well, that was also pretty silly. There isn't *that* much difference between them -- if he was "weak on choice," then she was at least "almost weak on choice." But to the extent that there was a bit of difference, Clinton seems to me to have the comparison right: she seems to me more consistently opposed to the criminalization and restriction of abortion. It may be that Obama voted in committee against a version of born alive essentially the same as what these other dems voted for (though I think I'm learning more about the circumstances in that). But that's clearly just a matter of them having made a certain political calculation that that differed from the one made by Illinois dems. All seem to have voted with their respective packs (whatever that might say about their courage). Look, serious pro-choice people know better than to think that Obama is way beyond, or even beyond in any significant way, Clinton or Kennedy on abortion. (Boxer I know less about.) If anything, they seem to be a bit beyond him.

Or: what would be the point of voting for the law since it had already been signed into federal law...?

jpe: The federal law dictates that the "born alive" will count as 'persons', etc. for the purpose of interpreting acts of the U.S. Congress and federal regulations, etc. There could still be a point in the various states making similar laws for how 'person' etc. will be interpreted in state laws and regulations. I think the idea is that the state born alive laws do for other state laws and state regulations what the federal law does for other federal laws and federal regulations.

Jeremy: Thanks for your thoughts.

Hope you find some helpful stuff in some of those links and maybe even post some more of you thoughts when you get a chance.

Bryan L

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