The James Wilson Foundation on Natural Rights and the American Founding

“President Trump and His Executive Order”: Hadley Arkes in The Catholic Thing

In this article, Prof. Hadley Arkes comments on President Trump’s recent announcement that he would enact a new Executive Order to enforce the Born-Alive Infants’ Protection Act, which had previously had its penalties stripped from it. Arkes was initially disappointed by the announcement, for Mr. Trump failed to make a connection between the Born-Alive and abortions, which meant that it can’t be used for its original teaching purposes. But he came to realize that the new Executive Order would put into place protections for all newborns. It would include features that were intended to be inserted into Born-Alive, and it would even take these things further, prohibiting doctors from tipping the scales against children that might have a poor “quality of life.” Arkes commends the work of the young attorneys in the administration who worked to develop this Executive Order and points out the hope that they bring. Arkes ends by saying that while the main instrument would still only be the threat to remove federal funds, these efforts show that this pro-life administration is more serious about its convictions than any previous pro-life administration. 

Some excerpts from this article:

When the president announced his new Executive Order, I was called by the redoubtable Cathy Ruse, who was one of my own main allies on Capitol Hill thirty years ago when I was going door-to-door, trying to sell this bill. Cathy sent me congratulations, for it looked like a vindication of what we had done years ago. But I, conditioned to disappointment, found my way to the grounds of my disappointment. The most notable was that the president, in his remarks, made no connection between the Born-Alive Act and abortion. And neither did his Executive Order.

But the benign surprise was that the Executive Order had picked up on features that we had sought to insert into Born-Alive 2, including a requirement that a hospital have at hand the equipment and procedures for dealing with a newborn at the edge of life. And in that vein, the Order held out the possibility of discretionary grants of support flowing to research and programs that “may improve survival – especially survival without impairment – of premature infants or infants with disabilities.” And yet all of this was taken a step beyond what even our own team drafting of the Born-Alive Act did not think we could ask: a warning given to all those people in positions of responsibility in hospitals that “they may not unlawfully discourage parents from seeking medical treatment for their infant child solely because of their infant child’s disability.” That is to say, a warning shot to doctors who gently seek to tip the balance of the scale by assuring the parents that they would be doing nothing wrong in letting go, for the child would have a poor “quality of life.”

Right now I have the sense that the persons in the Administration who have brought for this Executive Order would apply it with a surge of seriousness and conviction. And I say that with some direct knowledge, for the young lawyers in the administration who have produced this Executive Order are some of my own former students and the children of close friends. But if the Trump Administration does not survive into a second term, they will of course be gone. The possibilities they brought forth will vanish overnight, along with the Executive Order that gives them new life.

The complete article can be accessed 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