Originally posted: August 20, 2008 CHICAGO TRIBUNE
What you need to know about the `Born Alive' controversy and Barack Obama
Now that Barack Obama's voting record on "born-alive" legislation regarding abortion is becoming a mainstream topic --
-- I thought I'd try to take you through this potential wedge issue clearly and simply:
In April 2000, opponents of abortion rights began pushing Federal legislation known as the Federal Born-Alive Infants Protection Act (BAIPA). The full text of the bill, HR 4292, is here.
It was "a simple two-paragraph proposal," in the words of National Right to Life Coalition legislative director Douglas Johnson:
It established in black-letter law that for all federal law purposes, any baby who was entirely expelled from his or her mother, and who showed any of the specified signs of life (breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles), was to be regarded as a legal person for however long he or she lived, and that this applied whether or not the birth was the result of an abortion or of spontaneous premature labor.
A main proponent of this idea was Jill Stanek, a former delivery-room nurse at Christ Hospital and Medical Center in Oak Lawn.
As a 2001 Tribune profile explained:
[Stanek gave] frequent media interviews to criticize the hospital's rare use of labor-induced abortion.
As part of the procedure, doctors artificially deliver a fetus in the second trimester if they detect a severe abnormality that would prevent it from surviving. But the procedure can also occasionally result in fetuses living for as long as an hour outside the womb....
When she witnessed an aborted fetus with Down syndrome that survived outside the womb for 45 minutes, she alerted hospital officials, thinking something went wrong, she said.
In 1999, after consulting her pastor, she complained to the Illinois attorney general's office. Investigators concluded that the hospital violated no state laws.
The state law in question is the Illinois Abortion Law of 1975, and the relevant "born alive" portion reads like this:
720 ILCS 510/6: Any physician who intentionally performs an abortion when, in his medical judgment based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support, shall utilize that method of abortion which, of those he knows to be available, is in his medical judgment most likely to preserve the life and health of the fetus.
Prosecutors in Illinois entered into a consent decree in 1993 agreeing not to prosecute doctors for apparent or alleged violations of this law based on "born alive" definitions and other definitions (see the links below)
The NARAL Pro-Choice America (formerly known as the National Association for the Repeal of Abortion Laws, the National Abortion Rights Action League and the National Abortion & Reproductive Rights Action League) objected to the federal proposal in a news release:
The Act would effectively grant legal personhood to a pre-viable fetus ---in direct conflict with Roe (vs. Wade, the U.S. Supreme Court decision legalizing abortion)--- and would inappropriately inject prosecutors and lawmakers into the medical decision-making process....Roe v. Wade clearly states that women have the right to choose prior to fetal viability. ...In proposing this bill, anti-choice lawmakers are seeking to ascribe rights to fetuses "at any stage of development," thereby directly contradicting one of Roe's basic tenets.
This bill did not become law (though it enjoyed considerable popular support) in part because of the reservations of some lawmakers that it might conflict with Roe v. Wade. A new version, HR 2175, was introduced in June, 2001. It contained a new passage, meant to mollify legislators who favor abortion rights:
Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being "born alive" as defined in this section.
The mollification effort, the so-called "neutrality language" worked.
"Whatever concerns anyone may have had that this might become some clever way to undermine the rights protected under Roe v. Wade have, I think, been addressed," says the statement of U.S. Rep. Jerrold Nadler (D-NY) in this House Judiciary Committee report (.pdf). "Unless someone attempts to disrupt this effort by dragging the abortion debate back into it, I have little doubt that it will be passed without much controversy."
It sailed through both houses of Congress and was signed into law on August 5, 2001 by President Bush, whose signing statement dragged the abortion debate "back into it" and made it clear that anti-abortion activists, anyway, considered the bill a stalking horse for their cause:
This important legislation ensures that every infant born alive -- including an infant who survives an abortion procedure -- is considered a person under federal law. Today, through sonograms and other technology, we can see clearly that unborn children are members of the human family, as well. The Born-Alive Infants Protection Act is a step toward the day when every child is welcomed in life and protected in law. It is a step toward the day when the promises of the Declaration of Independence will apply to everyone, not just those with the voice and power to defend their rights.
But of course it's at the state level where most of the legislative action takes place in the abortion issue. And in 2001, abortion-rights opponent Sen. Patrick O'Malley (R-Palos Park) sponsored Senate Bills 1093, 1094 and 1095 -- "born-alive" bills that didn't have the "neutrality" language and contained additional provisions that would have exposed doctors to greater penalties.
Those bills failed. A similar attempt in 2002 -- Senate Bills 1661, 1662 and 1663 -- also failed. Obama voted both "present" and "no" on these bills -- same effect, different optics. Six Republican senators voted "present" or "no" on at least one of these "born-alive" bills as well.
One major sticking point was that these bills did not contain the "neutrality language" regarding abortion rights that the federal proposal contained. But it was not the only sticking point.
Another was that these proposals were twinned with proposals that would have increased the potential liability of doctors who perform abortions. Another was that they skirted/blurred the key issue of l viability -- "sustained survival of the fetus outside the womb" -- in state law, and seemed likely to mandate costly and futile medical care for expelled or aborted fetuses in very early stages of gestation (fetal heartbeat begins in the 5th week of pregnancy, according to the Mayo Clinic, when the embryo is 1/17th of an inch long).
And finally there was the trepidation with which pro abortion-rights legislators regard any proposal so enthusiastically pushed by opponents of abortion rights, particularly one that to be attached to the state laws regulating abortions: What's the real agenda? What are the non-obvious legal ramifications of the bill?
Here's some of what Obama said on April 4, 2002 during floor debate in the Illinois Senate:
The source of the objections of the (Illinois State) Medical Society (was that this proposal) puts the burden on the attending physician who has determined, since they were performing this procedure, that, in fact his is a non-viable fetus; that if that fetus, or child—however way you want to describe it—is now outside the mothers’ womb and the doctor continues to think that it’s non viable but there’s, let’s say, movement or some indication that, in fact, (the fetus is) not just coming out limp and dead, that, in fact, they would then have to call a second physician to monitor and check off and make sure that this is not a live child that could be saved….. The only plausible rationale, to my mind, for this legislation would be if you had a suspicion that a doctor – the attending physician – who has made an assessment that this is a non-viable fetus and that, let’s say for the purposes of the mother’s health, ...that labor is being induced, that that physician a) is going to make the wrong assessment and b) if the physician discovered, after the labor had been induced, that, in fact, he made an error, or she made an error, and, in fact, that this was not a non-viable fetus but, in fact, a live child, that that physician or his own accord or her own accord would not try to exercise the sort of medical measures and practices that would be involved in saving that child. Now if—if you think that there are possibilities that doctors would not do that, then maybe this bill makes sense. But I suspect --and my impression is that the Medical Society suspects as well --that doctors feel that they would be under that obligation, that they would already be making those determination and that ,essentially adding an additional doctor who then has to be called in an emergency situation to come in and make these assessments is really designed simply to burden the original decision of the woman and the physicians to induce labor and perform an abortions. Now if that’s the case… I think it’s important to understand that this issue ultimately is about abortion and not live births.
OK, so now here's the language of the 2003 version of the bill, SB 1082, as it was introduced by Ill. Sen. Richard Winkel (R.-Urbana):
a) In determining the meaning of any statute or of any rule, regulation, or interpretation of the various administrative agencies of this State, the words "person", "human being", "child", and "individual" include every infant member of the species homo sapiens who is born alive at any stage of development.
(b) As used in this Section, the term "born alive", with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after that expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
(c) A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.
As usual, the bill had a companion, SB 1083, the Induced Birth Infant Liability Act, the relevant portion of which read:
If a child is born alive after an induced labor abortion or any other abortion, a parent of the child or the public guardian of the county in which the child was born may maintain an action on the child's behalf for damages, including all costs of care to preserve and protect the life, health, and safety of the child, punitive damages, costs of suit, and attorney's fees, against any hospital, health care facility, or health care provider who harms or neglects the child or fails to provide medical care to the child after the child's birth.
It isn't hard to see why Planned Parenthood, the Illinois State Medical Society and other groups were anywhere from wary to alarmed at what this might mean (see Obamas' speech above). Note also that the words in red above were not part of the Federal BAIPA bill.
So let's pick up the story with the account of Richard Winkel, who has left the General Assembly and is not now an adjunct professor of law at the University of Illinois Law School, in an e-mail to me this week:
Before I presented my bill to the Senate Health & Human Services Committee (chaired by Obama), I became aware that opponents of my bill believed it was an attack on Roe v. Wade. That was not my intention for this bill, so I prepared an amendment that added language to the bill identical to the federal Born Alive Infant Protection Act that, in 2001, the United States Senate approved 98 to 0.
Just to be very clear, that amendment added the words, "Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being born alive as defined in this Section.." Exactly the words that were added to the federal bill that greased its passage.
Back to Winkel's narrative:
Committees in the Illinois Senate routinely approve amendments for consideration in committee out of deference to their colleagues. On February 26, 2003, when I presented the amendment to my bill, all 10 committee members voted to add the amendment. However, during the same committee hearing, the committee then rejected the bill as amended – which was identical to the federal legislation that sought to protect babies who survive abortions. It lost on a vote of 4-6.
It was a party-line vote, with Democrats Barack Obama, Mattie Hunter, Maggie Crotty, Susan Garrett, Carol Ronen and Jeff Schoenberg voting no; Republicans Dale Righter, Christine Radogno, Dave Syverson and Kathleen Wojcik voting yes. (Though this Senate Committee Action Report posted to Jill Stanek's blog suggests the date was actually March 12, 2003; Douglas Johnson of National Right to Life says the vote in question actually took place the following day, March 13, 2003).
Again, Winkel:
Frankly, I was stunned when Senate Bill 1082 lost, since I truly thought the amendment addressed the concerns of opponents since the bill as amended addressed infanticide, not abortion.
I won't question Winkel's sincerity or intent here, I will only point out that the original billhe introduced did address abortion (the words above in red were deleted by amendment) and that Obama's committee vote on SB 1083 is the main cudgel that the right is now using to bash him a radical extremist on abortion.
I do wonder why he was "stunned." Schoenberg, of Evanston, told me today that discussion prior to the vote made the Democrats' objections quite clear:
The feeling of the majority was that the bill (even as amended) still created great uncertainty about whether it would compromise abortion rights. It looked like yet another case of advocates trying to inject politics into the practice of medicine; we saw a desire to keep those those key questions (about abortion rights) unclear.
Winkel did not even bother to call the companion bill. Nor, it should be noted, did he bother to attempt to amend the bill to allay the concerns
of the Democrats and resubmit it, which he had every right to do under the rules of the Illinois Senate. I asked him why. He responded:
My interpretation of the discussion in committee was that the ardor of their pro-choice convictions went beyond those held by such ardent pro-choice proponents as U.S. Senators Boxer, Kennedy, Clinton, and Kerry, who had voted in the U.S. Senate to approve the same language that I used to amend my bill to address the concerns raised over the affect on Roe v. Wade. Even NARAL had long since withdrawn its initial opposition over the same language in the federal bill. That is what stunned me, and I interpreted their comments and negative vote to mean that they did not intend to approve my born-alive bill, nor did they seek any language change to satisfy their concerns. I did not believe that any of the six state senators favored infanticide; however, I was convinced that their negative vote was driven more by pro-choice dogma than concern over the merits of my bill to prevent infanticide.
Yet the following year, 2004, he submitted the exact same bill again. Five other "born-alive" bills were also introduce in the General Assembly that year, and they all met the same fate -- failure.
If you're keeping score Winkel's 2004 bills -- SB 2855 and 2856 -- contained the "neutrality language" as did HB 4770 from Rep. William Grunloh (D.-Effingham). HB 4008 sponsored by Grunloh and SB 2631,2632 and 2633 from Sen. John Jones (R-Mt. Vernon) did not contain the neutrality language. None of these bills emerged from rules committee and Obama, who by that time was heavily into his U.S. Senate campaign, played no part in those decisions. (source: Planned Parenthood of Illinois).
In the 2004 U.S. Senate election, Obama ran against carpetbagging conservative Alan Keyes, whom the GOP recruited from Maryland to run against Obama after the party's senatorial primary winner, Jack Ryan, withdrew after controversy erupted over salacious details in his divorce records.
What persuaded Keyes to make the effort? At the kickoff rally for his campaign he told supporters:
{An event] finally arrested my attention and forced me to consider whether I not only had the opportunity to oppose [Democrat Barack Obama], but the obligation. And that was when I learned that [Obama] had actually, in April 2002, apparently cast a vote that would continue to allow live-birth abortions in the state of Illinois. We are talking about a situation in which, in the course of an abortion procedure, a child has been born alive--is out of the womb, breathing and living on its own--and he cast a vote against the idea that we should not stand by and let that child die!
Obama defended himself against the charge that his votes as a legislator suggested he favored "infanticide," to use a word that Keyes hurled frequently. He said the state BAIPA bills did not have the same "exclusionary language" protecting abortion rights as the federal BAIPA bill. And I was among the pundits who made the same point.
You'd think that Jill Stanek or Sen. Winkel or Illinois Right to Life or Alan Keyes himself would have demanded a correction.
You'd think the March, 2003 Senate committee action by Obama and five other Democrats to deep-six the most recent versions of the "born-alive" bills even after the federal language was added would have played a big role in the debates on this issue during the 2004 campaign.
And you would be wrong.
Stanek didn't bring it up during an extensive online debate with me on this issue in 2004 (some of which survives here) and my search for contemporary news articles or blog entries on the SB 1083 amendment issue has so far come up empty.
Indeed, when he left a comment on my blog last Thursday, Douglas Johnson, legislative director of the National Right to Life Committee in Washington D.C. referred to the March, 2003 committee records as "new documents that came to light this week" and "newly released Obama documents."
Not quite. The committee meeting and the votes were held in public, and the records were there all along for anyone who cared to ask for them. The Associated Press even reported the story briefly the following day and the Illinois Senate staff documented the vote.
But to get get back to the narrative: In 2005, after Obama was in the U.S. Senate, yet another "born-alive" bill was introduced in the Illinois House-- HB 984, sponsored by Harrisburg Democrat Brandon Phelps.
It was assigned to the House Civil Judiciary Civil Law Committee, chaired by Chicago Democrat John Fritchey.
"I told the proponents that the bill simply wasn't ever going to get through as long as there was suspicion that it was a back-door way to get at Roe v. Wade or criminalize abortion in Illinois," Fritchey told me today.
Why wasn't the Federal "neutrality language" good enough?
Because the Federal bill was widely seen as window dressing; a proclamation more than a law with almost no potential impact on abortion law in the states. At the state level, particularly with the companion bills for punishing doctors, the proposal looked significantly more fraught.
"I told the proponents, `Just give us some extra language that will establish a comfort level for the pro-choice community,'" said Fritchey.
Here were two provisions Fritchey added:
(d) Nothing in this Section shall be construed to affect existing federal or State law regarding abortion.
(e) Nothing in this Section shall be construed to alter generally accepted medical standards.
"They fought me on that language," Fritchey said. "They said it wasn't acceptable. They said the feds didn't need those kinds of words, why did we need it?"
"Yes, I had a problem with it," Jill Stanek wrote me. "It wasn’t necessary. The bill would have passed without it. Pro-abort legislators needed a reason to support it in the face of mounting pressure and added those 2 redundancies to save face."
Fritchey won out. The bill sailed into law.
The history makes it clear that Obama's role in delaying "born-alive" legislation was minor and based on very understandable reservations of many pro abortion rights legislators in Springfield. There is simply no way to paint him as an "extremist" when multiple versions of this same legislation failed in both chambers, often over bi-partisan concerns -- though Jill Stanek is apparently having some success pushing this angle with those who don't have the patience you've had to wade through all the bills and arguments.
A companion issue that Stanek and other anti-abortion rights advocates are pushing is the question of whether Obama has been engaging in a "cover-up" when he's explained his positions and votes on these bills.
You will see here, for instance, in an Obama 'Fact Check" sent to Change of Subject the assertion that the neutrality language amendment to SB 1082 was a "FAILED AMENDMENT, NOT INCLUDED IN FINAL LEGISLATION."
And just last weekend, Obama told an interviewer for the Christian Broadcasting Network:
I have said repeatedly that I would have been completely in, fully in support of the federal bill that everybody supported, which was to say that you should provide assistance to any infant that was born, even if it was as a consequence of an induced abortion. That was not the bill that was presented at the state level.
The fact that the truth is far more complicated -- l6 bills related to "born alive" in the General Assembly over the years, many different concerns discussed-- doesn't excuse Obama's superficial misstatement of the facts.
It is confusing. Stanek herself, in her blog on Feb. 19 of this year, wrote the following, apparently under the same impression Obama was under that the state and federal bills were different: "Obama held Born Alive on March 6, 2003, from even being voted on in committee. It is also important to note from the docket that on March 13, 2003, Obama stopped the senate sponsor from adding the lately discussed clarification paragraph from the federal BAIPA, to make the bills absolutely identical." Her Jan. 16 WorldNet Daily column htmade the same assertion: "Obama, as chairman of the committee that vetted Illinois' version in 2003, refused to allow an amendment rendering both concluding paragraphs identical. He also refused to call the bill and killed it."
Stanek characterized these to me as "a mistake" and wrote:
The NRLC revelation was huge news. If you look at the ILGA website, it states the bill was “held in Health & Human Services,”…which all these years I took to mean Barack held it. No one caught it for over 5 years, including political opponents and reporters. I sometimes wonder if Barack even remembered or his people knew. It would have been audacious for him to make such bold misstatements otherwise. |
