Palin, Abortion, and the Moral Implications of Casting a Vote Saturday, Aug 30 2008 

McCain’s selection of Palin was certainly a bold and risky move.  It will either work wonders or it will very seriously backfire.  However, it’s fair to say that, based on what was the then-current trajectory, Obama was quite likely to win the White House in November if McCain did no more than make safe and traditional moves.  McCain really needed to put all his chips on the table and go for all-or-nothing.  There seems to be no doubt, among liberal and conservative pundits alike, that this is exactly what McCain has done.  We’ll just have to see if it works.

Palin, it is true, is inexperienced.  She does not have a proven track record, demonstrating that she would be both prepared and competent to handle all of the powers and responsibilities of the head of the Executive Branch and the Commander in Chief of the military, should an elected John McCain die in office.  That is not to say that she would not adequately and effectively carry out such duties – she might very well possess immense innate abilty – but it is obviously the wiser and more reliable course of conduct to predict future behavior on the basis of past behavior, and not on mere speculation.  Still, for those of us who believe strongly that the taking of innocent life in abortion represents one of the greatest moral crimes of our day, the choice between an inexperienced VP/potential-POTUS candidate and another (also inexperienced) candidate who intends to use his office to expand the abortion right, is no choice at all.  The answer is clear: whatever negative consequences could possibly befall the installment of a (potentially) ineffective President, any such incidental injuries are preferrable to what would be the deliberate injuries inflicted by Obama.

The law is vitally concerned not merely with a person’s outward actions, but also the mental state, the mens rea, that accompanies his or her acts.  Accidentally kill ten people in a car crash, and possibly suffer no greater punishment than a revoked license.  Intentionally kill only a single person, and go to jail for the rest of your life.  This makes eminent sense.  The body count is in fact not what counts; it is the morality of the actions, the degree to which they represent a depraved heart and an utter contempt for the value of human life.  For this reason, I marvel at the reasoning of otherwise pro-life voters who count issues such as the environment and national security to be on par with that of the rights of the unborn and entertain a willingness to vote for a candidate who would support abortion on-demand throughout pregnancy simply because they believe he might possibly chart a safer course in foreign policy.

Let’s suppose an admittedly contrived chain of events happens.  Suppose the McCain-Palin ticket wins the election.  Suppose further that McCain tragically dies in office; Palin assumes the Presidency under the 25th Amendment; and Palin, as a result of inexperience and poor judgment, embroils the country in an imprudent and unnecessary war that claims the lives of 50,000 Americans.  Which is worse, incompetence that incidentally results in 50,000 deaths, or the deliberate taking of countless innocents, voiceless and defenseless to the abortionist’s skillful forceps and scissors?  Which represents the greater moral atrocity?  Heck, even with such a hypothetical scenario, even going by the numbers without respect to intentionality, a tragic 50,000 lives absolutely pales in comparison to the over 1.3 million lives claimed every year by abortion in this country.  Hence, to truly make my point, I’d need to construct an even more extreme (bordering on the absurd) hypothetical.  One would have to imagine Palin placing the United States at the mercy of a sadistic superpower that dropped enough nuclear bombs on our soil to kill 1.4 million people, not just once, but year after year, while Palin did nothing to stop the regular, meticulous destruction.  It is a shame that one has to concoct such ridiculous, B-movie scripts simply to amass enough hypothetical deaths to rival the very real number of abortion-deaths each year in order to posit the sterile academic question: which is worse?

Well, the criminal law system has always known which is worse, and so do we.  Make no mistake about it, Palin, if eventually President of the United States of America, could not bring the abortion death toll down to zero, thus saving 1.3 million lives.  But even if she served a full four-year term in office and saved not a single unborn life, she could say one thing that Barack Obama would not be able to say: “I was not complicit.”  I know that John McCain will not be a perfect President; I know that it is at least possible that he or Palin could be the economic or international undoing of our great country (although I doubt it very much).  But I also know that, regardless of what incidental harms might result from such a vote as mine, I will be able to look in the mirror and say to myself, “I was not complicit.”  Will you?

The Illinois Analogs to the Born-Alive Infants Protection Act II Friday, Aug 22 2008 

I’ve now read through the 13 different bills, and found the five that represent the Illinois versions of the federal Born-Alive Infants Protection Act (BAIPA).  As should be apparent, the first four are identical.  They are similar to the federal BAIPA, but contain no “preservation” clause.  The last bill, however, does contain a preservation clause.

Obama claims that he voted against (or voted “present” – no real difference) on the Illinois BAIPAs because they contained no preservation clause similar to that of the federal BAIPA, but would have voted for the federal BAIPA.  Since Senate Bill 93-2855 did contain such a preservation clause, it is now important to figure out the bills for which Obama did vote.  That’ll be my next task.

Observe the language in the following bills:

2001-2002 (92nd General Assembly)

Senate Bill 92-1095
(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.

See Full Text [PDF] and History

Senate Bill 92-1662
(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.

See Full Text [PDF] and History

2003-2004 (93nd General Assembly)

Senate Bill 93-1082
(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.

See Full Text [PDF] and History

Senate Bill 93-2631
(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.

See Full Text [PDF] and History

Senate Bill 93-2855
(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” shall 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 his or her mother of that member, at any stage of development, who after such 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) 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.

See Full Text [PDF] and History

The Illinois Analogs to the Born-Alive Infants Protection Act Thursday, Aug 21 2008 

In my last post, I discussed the federal Born-Alive Infants Protection Act (BAIPA) and posted its (relatively short) text in full.  I now begin analysis of the Illinois versions and Obama’s involvement therein.

I have to say, my knowledge of the intricacies of legislative processes is not great.  Law school focused almost exclusively on the judicial interpretation of already enacted laws, and almost never on the ugly process by which sausage is made.  Thus, it took me quite a while to simply track down all of the relevant the bills; leaving insufficient time to analyze them in this post.

Here’s what I’ve found thus far.  During the 92nd and 93rd General Assemblies, there were 13 separate bills introduced in the Illinois Senate regarding protection of infants following botched abortions.  These bills can essentially (and numerically) be divided into five almost identical sets.

I’ve read that Obama opposed the (failed) Induced Birth Infant Liability Act on three separate occasions.  Since there are four sets of bills listed here, I have to figure out on which bills Obama actually voted.  Once I figure that out, I’ll undertake analysis of the bills themselves and their comparison to the federal BAIPA.

2001-2002 (92nd General Assembly)

SET 1

Senate Bill 92-1093

Senate Bill 92-1094

Senate Bill 92-1095

SET 2

Senate Bill 92-1661

Senate Bill 92-1662

Senate Bill 92-1663

2003-2004 (93rd General Assembly)

SET 1

Senate Bill 93-1082

Senate Bill 93-1083

SET2

Senate Bill 93-2631

Senate Bill 93-2632

Senate Bill 93-2633

SET3

Senate Bill 93-2855

Senate Bill 93-2856

The Born-Alive Infants Protection Act of 2002 Wednesday, Aug 20 2008 

For the next month or two, I’ll be developing commentary on Barack Obama’s record on abortion, particularly his position on the Born-Alive Infants Protection Act (hereinafter “BAIPA”). As I stated in my first post, and I’ll probably reiterate over and over again, this blog is concerned with politics and with political candidates only so far as they relate to abortion. Obama has made it abundantly clear that he is pro-choice.1 For that reason, I oppose his candidacy. And if John McCain were pro-choice and Obama pro-life, I’d be voting for Obama and criticizing McCain.

As I currently understand it, the BAIPA was the federal version, whereas the Induced Birth Infants Liability Act was the Illinois version that Obama opposed. Obama claims that he opposed the IILA because it did not contain language contained in the BAIPA that the law would not be construed to abridge the abortion right guaranteed by Roe v. Wade. I’ll get to the veracity of that claim after I lay a foundation for the comparison. The purpose of this post is to analyze the federal BAIPA.

The text of the BAIPA reads as follows:

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall 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 his or her mother of that member, at any stage of development, who after such 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) 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.2

Three things should stand out.

First, after all of the (quite appropriate) fuss about it, actually reading the text of this Act should surprise most people. Its purpose was to require that infants who survive an abortion be provided with medical care, yet in no place does it grant any affirmative rights to such infants. Instead, the BAIPA is nothing more than a rule of construction.

It simply mandates that any right or protection guaranteed to a “person”, “human being”, “child”, or “individual” is also guaranteed to an infant, at any stage of development “born alive” (which it then carefully defines). That is, it does no more than define these words as they are used throughout the United States Code. But if there is no federal law that mandates that medical care be given to a “person” (or “child,” “individual,” etc.), then the botched-abortion infant is none the better, even with the protection of the BAIPA. So, which federal laws were expanded to include protection for these born-alive infants by virtue of the BAIPA?  That will be the subject of a later post.

Second, subsection (b) is interesting in that it sets forth a definition of life. I say a definition of life, because, technically, the term it defines is “born alive”; it does not define “life” itself. Yet, the distinction is not very significant, since “born alive,” as defined in the Act, is nothing more than a purely compound term. Despite being the same sentence, basically, “born” is defined, and then “alive” is defined, but in no way are the definitions dependent on each other. Observe:

(b) As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means

["Born" =] the complete expulsion or extraction from his or her mother of that member, at any stage of development,

who after such expulsion or extraction

["Alive" =] 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,

["Born" (continued) =] and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

With the exception of breathing (which an infant does not do until after the umbilical cord is cut), an infant can meet this definition of “alive” (beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles) not only prior to being born (i.e., while in utero), but even prior to viability.  If a fetus’ heartbeat is detectable around 6 to 7 weeks of gestation, then, under federal law, the majority of abortions result in the end of a life as a legal matter.

Third, nevertheless, subsection (c) maintains the status quo with respect to the legal status of pre-viability abortions.  This was the clause that Obama claims was not present in the Illinois version, the clause that preserves Roe.  But, similar to rest of the Act, such a preservation is couched in very general terms.  Rather than set the limits of the BAIPA’s protection for infants at Roe (or Casey, for that matter), the Act simply maintains the “legal status [and] right[s]” of infants, whatever they happen to be.  This (wisely) allows the BAIPA to expand (or contract) protection whenever current abortion law changes, whether as a result of judicial decision or legislative act.

There are certainly a good number of implications to be explored here.  I’ll try to further develop those implications in later posts.


1. See Barack Obama, Statement on the 35th Anniversary of Roe v. Wade, http://www.barackobama.com/2008/01/22/obama_statement_on_35th_annive.php (“Thirty-five years after the Supreme Court decided Roe v. Wade, it’s never been more important to protect a woman’s right to choose. . . . Throughout my career, I’ve been a consistent and strong supporter of reproductive justice, and have consistently had a 100% pro-choice rating with Planned Parenthood and NARAL Pro-Choice America.”).

2. 1 U.S.C. § 8 (2006), 116 Stat. 926, P.L. 107-207.

Welcome to Nugent’s Law Wednesday, Aug 20 2008 

Alright, so I’ve finally listened to my dear wife’s advice, capitulated, and created a blog. I’ll warn up front that it will probably not be very interesting to many people (probably, Rebecca alone will politely read and obligatorily comment). I intend to limit discussion to only a few select topics: law (mainly abortion, but also intellectual property and First Amendment issues); economics (of which I am but a beginning student at this point); and purely personal musings, rants, and news. There will be no discussion of politics or religion, except as they may relate to the topic of abortion.

I am also open to guest blogging, on a post-by-post basis, for those wishing to comment on the same topics. Just send me an email with a proposal, and I’ll respond promptly (as I expect such emails to be few to none).

Rather than attempt to build this blog up, promote it, and make it the primary vehicle for my ideas, it will instead be more of a public drawing board in which I air the fruits of research, ideas, and argument prototypes for the purpose of testing them for possible eventual incorporation into full-scale academic writings. For that reason, posts may be infrequent (further deterring readership). But also for that reason, I will make every effort to support my posts with accurate, respectable, and verifiable sources. As a former Law Review editor, I find the proper use of authority to be absolutely essential to effective academic writing. Although the use of footnotes in blog posts is rare (if not non-existent), I intend to make extensive use of them.

So, without further ado: Nugent’s Law begins.