The James Wilson Foundation on Natural Rights and the American Founding

“A Day in the Senate with the Born Alive Act” – Prof. Arkes in The Catholic Thing

by James Wilson Institute on March 1, 2020
Courts, Politics

In a piece for The Catholic Thing, Prof. Hadley Arkes, JWI Founder and Director, explains the logic and the history of the Born-Alive Abortion Survivors Protection Act, of which he was one of the original architects. The Act has been an ongoing project of Prof. Arkes’s since 1988. Prof. Arkes explains how an earlier form of the Act was passed by voice vote in 2002 under a Democratic Senate. However, today voting on the Act has been almost exclusively along party lines. Prof. Arkes lays out the logic of the Act, arguing that a child born alive should be protected, even if they were born in the course of an abortion procedure. The key element of the Act is to raise the moral and legal question of what differentiates that child’s standing five minutes earlier while he was still in the womb. Prof. Arkes describes how the Republican Senators seem to be missing this critical understanding, but the intent is clearly understood by the other side, based on their opposing arguments. Prof. Arkes plans a follow up piece to discuss the Act further.

Some excerpts from the article:

“The bill would break out to the public news that most people would find jolting.  Most people did not know that under Roe v. Wade and its companion case of Doe v. Bolton, the right to abortion would extend through the entire length of the pregnancy – and even when a child survived the abortion.”

“The matter was blurted out, almost in passing, by Sen. Patty Murray from Washington. She remarked that “Republicans are peddling a ban that is blatantly unconstitutional.”  That is, this move to protect children born alive is incompatible with that “right” proclaimed in Roe v. Wade. For virtually all Democrats now in Congress and national politics, that right to abortion is a right that extends beyond pregnancy itself and entails nothing less than the right to kill a child born alive.”

“Twenty years ago, the beloved Henry Hyde was astonished that the National Organization of Women would come out so strongly against this modest bill.  But the other side knew that we were asking what was different about that same child five minutes earlier, before it was born – but then five days, five months earlier. Hyde’s happy bewilderment revealed a state of affairs that still holds:  the other side understands this bill better than some of our own allies, because it understands the principle that lies at the heart of the thing.”

The full article may be read here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790