Wow, There’s Some Good Research Tuesday, Sep 30 2008

Just came across this solid legal research and analysis by the National Right to Life Committee (NRLC).

The NRLC uncovered something that I missed.  I originally stated that Barack Obama did not vote against a BAIPA bill with a preservation clause because the three bills on which he did vote – 92-1095, 92-1662, and 93-1082 – did not contain preservation clauses.  What I apparently missed is that SB 93-1082 was later amended to include a preservation clause, after which Obama did vote against it, contrary to his claim.

NRLC lays out all of the facts in detail and even has links to some of the legislative documents that are not available online.  For example, here is a PDF of the amendment to SB 93-1082, which shows that the preservation clause was added.  And here is a PDF that shows Obama’s committee votes on that amended bill.  Here is a picture of the same.

Senate Bill 93-1082 votes

I need to make clear that I have not fully repeated the NRLC’s research steps, e.g., ordering a full bill folder from the Illinois General Assembly Archives department.  But as far as I can tell, everything matches up.  For instance, the date of the document in the image is March 12, 2003, which corresponds to after the bill was amended.  See the history of the bill here.

Hats off to the NRLC for its excellent research.  I’ll try to further verify these findings when I get a chance.

But for those who’d like a short summary of what this all means:

1. Obama voted against several bills that would mandate medical care for infants who survive abortions.
2. Obama claims that the only reason he voted against these bills was because they did not contain a clause that guaranteed that the law could not be used to prohibit abortions (a “preservation clause”).  Obama claims that if any of the bills had contained a preservation clause, he would have voted for them.
3. Senate Bill 93-1082, after it was amended, did in fact contain a preservation clause.
4. But Obama voted against SB 93-1082 anyway.
5. Obama lied about his reason for voting against the Illinois bills.

Related Posts:

1. Why Obama Voted Against the Illinois Born-Alive Infants Protection Act
2. Obama’s Specious Rationale for Voting against the Illinois Born-Alive Infants Protection Act
3. Obama’s Statements on Illinois Senate Bills 92-1093, 92-1094, and 92-1095
4. The Illinois Analogs to the Born-Alive Infants Protection Act III
5. The Illinois Analogs to the Born-Alive Infants Protection Act II
6. The Illinois Analogs to the Born-Alive Infants Protection Act
7. The Born-Alive Infants Protection Act of 2002

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Why Obama Voted Against the Illinois Born-Alive Infants Protection Act Saturday, Sep 27 2008

In my last post, I explained why Barack Obama’s declared reason for voting against the Illinois BAIPA – namely, that the law would be held unconstitutional – did not hold water.

With that rationale shot down, that leaves open the question: Why did he oppose the bill?

Possibilities:

(1) Although mistaken, Obama honestly believed that the law would effectively prohibit pre-viability abortions and therefore be unconstitutional.

This seems quite implausible for a couple reasons.  First, as I explained previously, the bill quite clearly limited its scope to members of the species homo sapiens “born alive.”  Since pre-viable fetuses in their mothers’ wombs are not yet born, there is simply no way to construe the BAIPA to grant them any protection from the act of abortion.  The only thing they are given is the right to medical care should they actually survive the abortion.  If Obama was thoughtful enough to speak on the floor about the constitutional dimensions of the bill, he had surely studied it enough to notice the inclusion of the limitation “born.”

Second, Obama taught constitutional law at the University of Chicago.  Obama was certainly educated enough in constitutional law generally, and abortion jurisprudence particularly, to navigate the nuances of the issue.  The (actually rather basic) constitutional analysis I set forth in my prior post would not have been lost on him.  Therefore, one can only interpret his invocation of constitutional principles in his statements before the Illinois State Legislature to be for the purpose of obfuscating the issue to others, not supporting his own position.

(2) Barack Obama hates babies and thinks they should not be given any medical treatment.

Hmmm … while this explanation would certainly be sensational and would perhaps excite the passions of those who, like me, diametrically oppose Obama because of his positions on abortion, it is almost certainly not true, and therefore must be dismissed.

(3) Obama feared it might eat away at the abortion right.

Bingo.  Obama probably would have supported mandating medical care for infants who survived abortions, all things being equal.  Yet he likely worried that if the bill passed and became law, it could possibly work contrary to a generally liberal abortion policy for a couple reasons.

First, it might have added momentum to the pro-life movement.  Social movements are often won gradually, with incremental victories that set the baseline for future goals and spur proponents to continue to fight for the cause.  Few things will re-energize a despondent movement like a victory, however small or symbolic, after years of making no real progress.  Likewise, few things will discourage activists to continue to contribute time, money, and emotional energy to a cause like one more defeat after years without any significant victories.  Perhaps Obama simply didn’t want to embolden pro-lifers to seek even more, and he was willing to take no chances.

Second, mandating protection for infants who survive abortions would probably have contributed to a “culture of life” or, as I call it, a “pro-life orthodoxy.”  Think about it.  If a law requires that medical care must be administered to infants surviving abortions, it is implying that those lives have instrinsic worth and therefore are worthy of protection.  That then raises a quandry in the minds of citizens: if a fetus is indeed a human life and is even considered a person with a vested right to medical care when he survives an abortion, why is he not protected from the abortion itself?  Why would an infant born as the result of an induced abortion (where the fetus is fully delivered) at 20 weeks of gestation be protected by the law, while the fetus of 22 weeks could be legally dismembered within her mother’s womb and vaccuumed out through a tube?  If a human life is valuable outside the mother’s womb at one point, why is it not valuable inside the mother’s womb five minutes prior?

There are countless ways to formulate these kinds of questions, many of which might pose themselves in the minds of citizens hearing about such a law.  Although the BAIPA clearly distinguished between born and unborn life, such that it was not in danger of being found unconstitutional, for most people the distinction is hard to maintain both intellectually and emotionally.  Hence, by affirming the value of life immediately subsequent to abortion, the law would help contribute to a pro-life orthodoxy that affirms the value of life immediately prior to abortion.  And Barack Obama did not want that.

But even if Obama honestly believed that abortion was a fundamental right, or a good thing, how far could he in good conscience go to protect it?  Take various things that you believe are right and good.  How far would you go to protect them?  You believe that free speech is good.  Would you die to protect it?  I commend you if you would.  But would you kill to protect that right?  Would you take innocent life?  Would you allow other innocent people to die rather than allow events to come to pass that would threaten that right?

In the end, that’s the problem with Obama’s votes against the Illinois BAIPA.  Even assuming for a moment that abortion were a fundamental good, Obama should never have used the lives of innocent children as shields to protect it.  If Obama wants to die for what he believes in, fine.  But shame on him for substituting helpless infants to make that sacrifice in his place.

So, for those who’ve read all of my posts on this subject so far, I hope it’s been apparent that I have not sunk to the level of demonizing Barack Obama in order to strengthen my criticism against him.  While it would be quite easy to allege, as others have, that Obama disregarded infant life as having any value whatsoever (the “monster” rationale), I have not done so.  Instead, I have given Obama the benefit of the doubt in assuming that he would have supported medical care for these infants were it not for his concern for the effect it might have on the so-called right to abortion (the “strategist” rationale).

But, you know, it’s strange.  Because even after I have discounted the “monster” rationale in favor of the “strategist” rationale, I wonder if I have done Obama any favors.  We may think that a man who regards infant life as worthless is a monster and a villain.  But, when you think of it, in the end, which is really worse?  The man who refuses to protect life because he deems it worthless, or the man who knows quite well the value of life but refuses to protect it because it isn’t expedient?  I’m not so sure.

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Obama’s Specious Rationale for Voting against the Illinois Born-Alive Infants Protection Act Thursday, Sep 25 2008

In my last post, I set forth, in their entirety, Barack Obama’s statements in 2002 on the floor of the Illinois Senate in which he spoke against passage of the Illinois Born-Alive Infants Protection Act (BAIPA), SB 92-1095.  Now, I’ll analyze whether his reasons for voting against the bill had merit.

Obama stated two reasons why he believed that the bill, if enacted into law, would be held unconstitutional.  As to the first, which I’ll analyze in this post, he stated,

Number one, whenever we define a previable fetus as a person that is protected by the equal protection clause or the other elements in the Constitution, what we’re really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a — a child, a nine-month-old — child that was delivered to term. That determination then, essentially, if it was accepted by a court, would forbid abortions to take place. I mean, it — it would essentially bar abortions, because the equal protection clause does not allow somebody to kill a child, and if this is a child, then this would be an antiabortion statute. For that purpose, I think it would probably be found unconstitutional.

Obama’s constitutional argument essentially goes like this:

The Fourteenth Amendment to the United States Constitution states, in part, “No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The first clause is known as the Due Process Clause; the second is known as the Equal Protection Clause.  Both clauses require that states grant certain basic protections to “person[s]” within their borders.

The Supreme Court has held that states can neither prohibit abortion entirely prior to viability, nor place restrictions on abortion prior to viability if those restrictions amount to “undue burdens” on the right to an abortion.  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).  Now, how does that square with the Due Process Clause, which prohibits states from depriving persons of life without due process of law?  The Supreme Court addressed this very argument in Roe, dismissing the notion that prenatal fetuses are “persons,” because “in nearly all … instances [of the word 'person' in the Constitution], the use of the word is such that it has application only postnatally.” 505 U.S. at 157.  Needless to say, I find this reasoning highly dubious, for reasons I won’t go into right now.  But that is the current law of the land: a fetus is not a “person,” and therefore not protected by the Fourteenth Amendment.

Fast forward to 2002.  What would happen if Illinois passed a law that stated simply, “In determining the meaning of any statute, the words ‘person’ and ‘individual’ include every member of the species homo sapiens at any stage of development”?  Well, since a pre-viable fetus is a “member of the species homo sapiens,” albeit in an early stage of development, that pre-viable fetus would be considered a “person” or individual” under any Illinois law.  Coupled with pre-existing Illinois laws that include the words “person” or “individual,” this expanded definition would have serious consequences.  Observe the Illinois murder statute:

A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual …

720 ILCS 5/9‑1. If a pre-viable fetus falls within the definition of “individual,” then the murder statute can be read thus:

A person who kills [a pre-viable fetus] without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that [pre-viable fetus] or another, or knows that such acts will cause death to that [pre-viable fetus] …

So, by simply expanding the definition of “person” or “individual” to include pre-viable fetuses, the legislature has made it illegal to intentionally kill pre-viable fetuses.  Since that is exactly what abortion is – the intentional killing of a pre-viable fetus – the legislature has made all (or most) pre-viability abortions illegal.  But because Roe holds that states constitutionally may not prohibit pre-viability abortions, the law, which again did nothing more than expand the definition of “person,” effectively bans abortions and is therefore unconstitutional.  Make sense?

There’s only one problem with this argument: the BAIPA bill very clearly indicated that it was not expanding the definition of “person” to include all pre-viable fetuses, as Obama represented, but only members of the species homo sapiens (whether fetus or not) who had already been born.  Observe:

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.

Since pre-viable fetuses still inside their mothers’ wombs who are slated for abortions are not yet born, the bill would in no way prohibit pre-viability abortions.  What about induced abortions?  In an induced abortion, the abortionist, rather than killing the fetus while still inside the mother’s womb (e.g., by dismemberment, vacuum, or other lovely procedure) causes the mother to actually give birth to the fetus, who then either dies during the process or is born and, because of the poor fetus’ early stage of development, dies shortly thereafter.  Would the BAIPA prohibit those kinds of abortions, since the fetus is actually born?  Well, no, it wouldn’t.  Because the fetus would not yet be born when the abortionist induces birth, the fetus would not yet be considered a “person,” and would therefore not be protected by the BAIPA.  Now, once the poor child is born, the abortionist (or other attendant) would be required to employ all reasonable means to keep the newly born child from dying, but that itself does not prohibit the abortion (i.e., the expulsion of the child from the mother) from taking place.

Still, all of this legal analysis, while perhaps helpful for giving context, was not a prerequisite to understanding why the Illinois BAIPA would not have prohibited any abortions and therefore was not unconstitutional.  Instead, Obama needed to do one simple thing to alleviate his concerns about protecting the right to abortion: read the bill.  A single word can alter the meaning of an entire law.  Perhaps the word “born” escaped his notice.

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Obama’s Statements on Illinois Senate Bills 92-1093, 92-1094, and 92-1095 Sunday, Sep 21 2008

In my third installment of Barack Obama’s actions with respect to the Illinois analogs to the federal Born-Alive Infants Protection Act of 2002 (BAIPA), I promised to post the statements Obama actually made on the Illinois Senate floor when the Senate Bill 92-1093 came up for voting.  Here is what I’ve found.

As shown in a previous post, the first Illinois bill that mimicked the federal BAIPA was Senate Bill 92-1095, which was proposed in the 92nd General Assembly (2001-2002).  SB 92-1095 was proposed along with two other bills – SB 92-1093 and SB 92-1094 – that also sought to mandate the provision of medical care to infants that survive abortions.  It was actually in the context of SB 92-1093 that Obama made the following statements.  However, when SB 92-1095, which was the Illinois BAIPA, came up, Obama made it clear that his earlier statements with respect to 92-1093 also pertained to 92-1095.

I’ll post the full text of the discussion here and then analyze the pertinent points in a later post.

[Update: analysis debunking Obama's statements here]
[Update: theory as to the real reason Obama voted against the BAIPA bills here]

ACTING SECRETARY HAWKER:
Senate Bill 1093.
(Secretary reads title of bill)
3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR KARPIEL)
Senator O’Malley.

SENATOR O’MALLEY:
Thank you, Madam President, Ladies and Gentlemen of the Senate. Senate Bill 1093, as amended, provides that no abortion procedure which, in the medical judgment of the attending physician, has a reasonable likelihood of resulting in a live born child shall be undertaken unless there is in attendance a physician other than the physician performing or inducing the abortion who shall assess the child’s viability and provide medical care for the child. The bill further provides that if there is a medical emergency, a physician inducing or performing an abortion which results in a live born child shall provide for the soonest practical attendance of a physician other than the physician performing or inducing the abortion to immediately assess the child’s viability and provide medical care for the child. The bill additionally provides that a live child born as a result of an — of — of an abortion procedure shall be fully recognized as a human person and accorded immediate protection under the law. All reasonable measures consistent with good medical practice, including the compilation of appropriate medical records, shall be taken to preserve the life and health of the child. I’d be pleased to answer any questions there may be.

PRESIDING OFFICER: (SENATOR KARPIEL)
Any discussion? Senator Obama.

SENATOR OBAMA:
Thank you, Madam President. Will the sponsor yield for questions?

PRESIDING OFFICER: (SENATOR KARPIEL)
He indicates he will.

SENATOR OBAMA:
This bill was fairly extensively debated in the Judiciary Committee, and so I won’t belabor the issue. I do want to just make sure that everybody in the Senate knows what this bill is about, as I understand it. Senator O’Malley, the testimony during the committee indicated that one of the key concerns was — is that there was a method of abortion, an induced abortion, where the — the fetus or child, as — as some might describe it, is still temporarily alive outside the womb. And one of the concerns that came out in the testimony was the fact that they were not being properly cared for during that brief period of time that they were still living. Is that correct? Is that an accurate sort of description of one of the key concerns in the bill?

PRESIDING OFFICER: (SENATOR KARPIEL)
Senator O’Malley.

SENATOR O’MALLEY:
Senator Obama, it is certainly a key concern that the — the way children are treated following their birth under these circumstances has been reported to be, without question, in my opinion, less than humane, and so this bill suggests that appropriate steps be taken to treat that baby as a — a citizen of the United States and afforded all the rights and protections it deserves under the Constitution of the United States.

PRESIDING OFFICER: (SENATOR KARPIEL)
Senator Obama.

SENATOR OBAMA:
Well, it turned out — that during the testimony a number of members who are typically in favor of a woman’s right to choose an abortion were actually sympathetic to some of the concerns that your — you raised and that were raised by witnesses in the testimony. And there was some suggestion that we might be able to craft something that might meet constitutional muster with respect to caring for fetuses or children who were delivered in this fashion. Unfortunately, this bill goes a little bit further, and so I just want to suggest, not that I think it’ll make too much difference with respect to how we vote, that this is probably not going to survive constitutional scrutiny. Number one, whenever we define a previable fetus as a person that is protected by the equal protection clause or the other elements in the Constitution, what we’re really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a — a child, a nine-month-old — child that was delivered to term. That determination then, essentially, if it was accepted by a court, would forbid abortions to take place. I mean, it — it would essentially bar abortions, because the equal protection clause does not allow somebody to kill a child, and if this is a child, then this would be an antiabortion statute. For that purpose, I think it would probably be found unconstitutional. The second reason that it would probably be found unconstitutional is that this essentially says that a doctor is required to provide treatment to a previable child, or fetus, however way you want to describe it. Viability is the line that has been drawn by the Supreme Court to determine whether or not an abortion can or cannot take place. And if we’re placing a burden on the doctor that says you have to keep alive even a previable child as long as possible and give them as much medical attention as — as is necessary to try to keep that child alive, then we’re probably crossing the line in terms of unconstitutionality. Now, as I said before, this probably won’t make any difference. I recall the last time we had a debate about abortion, we passed a bill out of here. I suggested to Members of the Judiciary Committee that it was unconstitutional and it would be struck down by the Seventh Circuit. It was. I recognize this is a passionate issue, and so I — I won’t, as I said, belabor the point. I think it’s important to recognize though that this is an area where potentially we might have compromised and — and arrived at a bill that dealt with the narrow concerns about how a — a previable fetus or child was treated by a hospital. We decided not to do that. We’re going much further than that in this bill. As a consequence, I think that we will probably end up in court once again, as we often do, on this issue. And as a consequence, I’ll be voting Present.

PRESIDING OFFICER: (SENATOR KARPIEL)
Further discussion? If not, Senator O’Malley, to close.

SENATOR O’MALLEY:
Thank you, Madam President and Ladies and Gentlemen of the Senate. The one thing the previous speaker did say is that this is a passionate issue. And — however, I don’t think it’s challengeable on constitutional grounds in the manner that was described. This is essentially very simple. The Constitution does not say that a child born must be viable in order to live and be accorded the rights of citizenship. It simply says it must be born. And a child who survives birth is a U.S. citizen, and we need to do everything we can here in the State of Illinois and, frankly, in the other forty-nine states and in the halls of Washington, D.C., to make sure that we secure and protect those rights. So if this legislation is designed to clarify, resecure and reaffirm the rights that are entitled to a child born in America, so be it, and it is constitutional. I would appreciate your support.

Later came SB 92-1095, the Illionois BAIPA. Obama made the following remarks:

ACTING SECRETARY HAWKER:
Senate Bill 1095.
(Secretary reads title of bill)
3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR KARPIEL)
Senator O’Malley.

SENATOR O’MALLEY:
Thank you, Madam President. Senate Bill 1095 provides that 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. This is fashioned after the Born-Alive Infant Protection Act that passed the U.S. House last year, and I might add, passed the House of Representatives in Washington, D.C., overwhelmingly. I would appreciate your support.

PRESIDING OFFICER: (SENATOR KARPIEL)
Any discussion? Senator Obama.

SENATOR OBAMA:
Simply to say that the same issues apply to this bill.

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What’s in a Name? Terminology in the Abortion Debate Friday, Sep 19 2008

Because, as I stated in my previous post, I won’t have until this weekend to write any new material, I thought I’d at least recycle some old material for people to read and chime in with their collective wisdom.

Here is an email exchange I had with Dr. Frank Boehm, professor of Obstetrics and Gynecology at Vanderbilt University Medical School and former director of the Division of Maternal-Fetal Medicine at Vanderbilt University Medical Center.  About a year and a half ago, Dr. Boehm was part of a panel discussion on abortion at Vanderbilt Law School.  Although Dr. Boehm, pro-choice in ideology, presented clear and helpful information about the medical aspects of abortion (he candidly admitted that it was “a life” that was being taken), I thought he was greatly mistaken when he submitted that the most objective and accurate terms to label the opposing sides of the debate were “pro-choice” and “anti-choice.”

Dr. Boehm seemed to me to be a thoughtful and reasonable man, so I attempted to challenge his assumptions concerning the fairness of these terms in the following email exchange.

===

[Nugent to Boehm]

Dr. Boehm,

….

I wanted to challenge you on something that you said. You stated that the proper terminology of the debate was not “Pro-Life and Pro-Choice” but “Pro-Choice and Anti-Choice.” However, this terminology is just as obscurant. What “choice” is it that one side opposes and one side supports? The obvious answer: abortion. It would be unfair to characterize you as “Anti-Life” because you support legalized abortion; for you are not opposed to all life. Neither would it be fair to characterize me as “Anti-Choice” because I oppose legalized abortion; for I am not opposed to all choices. Thus, if the purpose of modifying the language is to remove indeterminacy in the terms, “Pro-Choice and Anti-Choice” is just as indeterminate, and thus a mischaracterization.

Instead, to be determinate and fair, the language should be “Pro-Abortion and Anti-Abortion.” That is, one side supports legal abortion and one side opposes legal abortion. That in no way misrepresents either side. I suppose it would be even more accurate to say “Pro-Legalized-Abortion and Anti-Legalized-Abortion,” but, for the sake of concision, “Pro-Abortion and Anti-Abortion,” is a fair abbreviation that does no harm to the obvious meaning.

…

Many thanks,

Nick Nugent

===

[Boehm Response]

Nick, Thanks for your thoughtful email. The real problem I have with using the terms pro and anti abortion is that I know of no one who is pro abortion. The issue is about choice and that is why I perfer anti and pro choice. The implications are clear when using these terms. Hope this helps. Frank

===

[Nugent Response]

Dr. Boehm,

With all due respect, the terms may be clear, but the “implications” are neither clear nor fair (that is, in what they imply). In our society, a positive is presumptively perceived as a good thing, while a negative is presumptively perceived as a bad thing, often irrespective of the proposition that is modified by the prefixing of “anti” or “pro.” Now, there are undeniably two interests involved in abortion: (1) a woman’s choice and (2) the life of her child. Both are positive interests. We want a woman to have as much choice as possible, and we want innocent life to have as much protection as possible.

But, when you presume to set the terminology of the debate by defining the terms around only one of those positive interests, labeling yourselves “pro” that positive interest and us “anti” that positive interest, you are stacking the deck in your favor. The subtle, yet strong, implication to society is that one group advocates for an expansion of a positive interest while the other group advocates for a diminishment. That is, group A wants more of a good thing, but group B wants less of a good thing.

Likewise, framing the debate as “Pro Life” and “Anti Life” obviously stacks the deck in my favor. What is implied, is that I want more of a good thing (life), but you want less of a good thing. Now who looks like the bad guy?

I don’t think that you, as an educated and intelligent man, can deny that the very purpose of framing the debate either way is to create “implications” favorable to one side or to the other. Thus, I don’t understand how you can think that it is fair and intellectually honest to unilaterally declare, as you did at the presentation, that the terminology that creates positive implications for you and negative implications for me is the “proper” terminology.

Therefore, it seems that the only way to create both fair and precise language is to either incorporate both interests into the terms or to narrow focus down to the precise issue disputed. Thus, there are only two options.

(1) “Pro Legalized Abortion vs. Anti Legalized Abortion” – This narrows the focus down to the precise issue disputed and gives no side a monopoly on implications. In fact, it even allows your side to retain the advantage of the positive prefix “pro.” Still, I would have no problem with this language.

- OR -

(2) “Choice-over-Life vs. Life-over-Choice” – This is fair in that it incorporates both interests and represents the positions accurately, even if somewhat simplistically.

However, both of these are admittedly cumbersome and quite unlikely to become the vernacular of the battle. So, I suppose in the end that leaves us with only one option:

“Pro Choice vs. Pro Life” – The reason is simply this: at least the deck is stacked on both sides.

In conclusion, if you are truly intellectually honest, Dr. Boehm (and this was my impression of you at the presentation), you will admit that framing the debate as “Pro Choice” and “Anti Choice” gives your position an unfair linguistic advantage. Therefore, in the interest of intellectual honesty, I respectfully ask that you not use the obvious weight of your pedigree and intellectual persuasion to publicly advocate for terminology that you know is neither accurate nor fair.

Thank you for your time and consideration.

Sincerely,

Nick Nugent

===

[Boehm response]

I could live with the terms pro legalized abortions and anti legalized abortions. You make some very good points. Alas, I believe our society is stuck with pro life and pro choice. I appreciate your thoughtfulness. Frank

===

I commend Dr. Boehm for considering my points and exhibiting a willingness to use honest terms of debate.  I am curious what other readers think about the terms “pro-life” and “pro-choice.”

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New Modus Operandi Friday, Sep 19 2008

Apparently, readership of this blog has picked up slightly.  While I’m certainly happy about that, it also impresses upon me the need to actually post regularly, lest readers become annoyed with the torpidity of my output.  At the same time, my ability to actually bill 2,000 hours/year at my firm would be compromised were I to try to squeeze in the 1-2 hours it takes to put together a thoughtful post every day.  

So, I have decided that the best approach will be to write a week’s worth of posts on the weekends and then to  string them out one-by-one each day of the week.  That now being the case, I will not likely be able to craft any new posts for a few days, and I wanted to give my readers a heads-up on this.

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Cass Sunstein’s Deceptive Editorial Wednesday, Sep 17 2008

Cass Sunstein, the brilliant and incredibly prolific constitutional law scholar, who just left the University of Chicago for greener pastures at Harvard, has written an editorial warning us about the dangers of electing McCain and Palin, who would most certainly, we are told, pack the federal courts with extreme right-wing ideologues.  Well, it is true that McCain would be more likely to appoint conservative judges and justices, whereas Obama would be more likely to appoint liberal jurists.  And Sunstein, who is certainly a liberal, is free to characterize George W. Bush’s appointees to the courts of appeals as “extreme” (which he does), if such judges are extreme relative to his ideology.  However, in his attempt to scare us about a McCain-packed Supreme Court, he engages in a certain degree of intellectual dishonesty that is, frankly, beneath a man of such intelligence and nuance.

He starts with abortion, and what might happen if Roe v. Wade were overturned as the result of McCain appointees to the Supreme Court.

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

First of all, in the states that prohibited abortion prior to Roe, the law rarely implicated the mother.  Either the law punished only the abortionist (as was the case in the Texas law struck down in Roe) or the law was enforced (if ever) only against the abortionist.  Examples of women actually being fined, much less jailed, for obtaining an abortion are few and far between.  Sunstein either doesn’t know his abortion history, or knows it and is trying to shade the truth with the phrase “threatened to subject pregnant women.”  What does it mean to “threaten[] to subject”?  Is that kinda like almost enacting a law?

Second, while it is true that “Palin opposes abortion even in cases of rape and incest,” Sunstein is being nothing short of disingenous when he states that there is “no doubt that many states would attempt to enact that belief into law.”  With the overwhelming majority of Americans supporting abortion in cases of rape and incest, and even the solidly conservative South Dakota failing to preserve such an abortion prohibition against a state-wide referendum, I doubt that any state would attempt to prohibit abortion in such cases, much less “many states.”  Or is the wiggle-phrase “attempt to enact” kinda like “threaten[ing] to subject”?  If so, yes, Cass, I suppose in most states there would be at least one die-hard pro-life state representative or senator who would introduce a bill to ban abortion in these cases, after which it would be immediately shot down, like countless other doomed-to-fail bills.  And so, yes, Cass, if we total up all of those single-sponsor, doomed-to-fail bills throughout the country, we could make the words “attempt to enact,” coupled with “many states,” true.  I know what you mean.  But you know very well this is not how the average reader, who doesn’t have your legal knowledge, will interpret it.

But Sunstein really shows his hand when he condemns the Supreme Court as conservative activists (if that isn’t an oxymoron) for “[striking] down provisions of the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Violence Against Women Act.”  Sunstein warns, “A McCain court would go further.”

Look, my only shtick on this blog is abortion; I’m not going to get into other political issues such as whether these laws were good or bad in terms of what they attempted to do.  But I will say that Sunstein knows full well why these acts were struck down.  They were struck down because the Supreme Court held that they were beyond the power granted to the federal government in the Constitution.  Protecting women from violence is a good thing, just as bringing your wife flowers every now and then is a good thing.  But that doesn’t mean the federal government has the power to legislate with respect to either.  Now, let me be clear, I’m not going to actually take a stand on whether the Violence Against Women Act (VAWA) was beyond the powers granted to the federal government under the 14th Amendment and the Commerce Clause.  I am simply pointing out that there was a principled and constitutionally based reason for the Court’s striking down these laws.  It was not simply because they clashed with the Justices’ personal, conservative views.  Striking down the VAWA as beyond the 14th Amendment was not activism; holding that the VAWA also protected puppies would be.

Sunstein knows constitutional law as well as anybody, and therefore he certainly knows these things.  But he writes in such a way that the reader is left with false impressions, such as a conservative Supreme Court striking down legislation that has admirable goals because they don’t like those goals.  Right, I’m sure Chief Justice Roberts beats his wife on a regular basis, and is eager to protect that right from federal encroachment.

But apparently this is typical for Sunstein.  In Professor Scott Gerber’s article, The Court, the Constitution, and the History of Ideas, 61 Vand. L. Rev. 1067 (2008), Gerber notes that while Sunstein champions deciding moral issues by democratic processes, instead of by wide-sweeping judicial fiat, he does so only when those democratic processes yield the results he likes.  When the democratic process does not produce liberal policies, he would prefer the courts to step in, because the legislatures are “failing to promote democracy ‘rightly understood.’”  Right.

In sum, I find it disappointing when smart men suddenly seem to forget all the nuance they so carefully dissect in their scholarship, leaving readers with impressions that are far from the nuanced truth.  Smart men should know better.  And Sunstein is a very smart man.

But to end this criticism on one good note, I commend Sunstein for disclosing a fact that should help readers to take Sunstein’s comments with a grain of salt.  The article closes: “Cass Sunstein is … an informal adviser to the Obama campaign.”  No … really?

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Lessons in Incrementalism Saturday, Sep 6 2008

The Washington Post has a pretty good article discussing three different abortion-related ballot initiatives in play this November.  The ballot initiatives are as follows:

1. South Dakota: a measure to ban all abortions except in cases of rape, incest, or threat to the mother’s health.
2. California: a parental notification requirement for minors seeking an abortion.
3. Colorado: an amendment to the state constitution to define the term “person” as “any human being from the moment of fertilization.”

The success or failure of each of these three initiatives should provide good insight into (a) the merits of an incremental approach to curbing abortion legislatively and (b) the granularity of such a process (i.e., how large or small the increments should be).

I’ve often said (although not yet on this blog, which I’ve only recently begun) that the most effective way in which pro-lifers can advance a pro-life legislative agenda is through a slow, calculated, incremental approach, and not by means of a full frontal assault.  This was the technique employed by opponents of segregation in the 20th Century. The genius of Thurgood Marshall and the NAACP was that they had so eroded the viability of Plessy v. Ferguson¹ with case after case in which “separate” could not be considered “equal,” that by the time Brown v. Board came along, it pretty much collapsed under its own weight. My Con Law professor called this the “termite approach.”

Those who worked for the legalization of abortion proceeded in a similarly calculated fashion. First, legalize contraception for married couples,² then for unmarried couples,³ then argue that precedent set forth the overarching principle that the state essentially lacked all power to regulate “matters so fundamentally affecting a person as the decision whether to bear or beget a child.”⁴

Pro-lifers should proceed in a similarly incremental, strategic approach. It’s not difficult to perceive a certain degree of annoyance (perhaps yielding increased resistance) in the Casey joint opinion in the words “the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”⁵ If, rather than seeking complete nullification of Roe in each previous lawsuit, pro-lifers had simply attempted to chip away at it, there might have been a different result in Casey.

Maybe.

Interestingly enough, these three initiatives span the continuum of how much, or how aggressively, pro-lifers might attack abortion. At the far end of the spectrum, South Dakota seeks to outlaw all abortion, except in cases of rape or incest or when necessary to save the life or health of the mother. Such an initiative represents an attempt to almost completely reverse Roe.  I say “almost” because while life and health exceptions were the norm for abortion prohibitions prior to Roe, rape and incest exceptions were not.

In middle of the continuum is the California parental notification initiative. A parental notification law (many states have them) does not prohibit any abortions per se, but requires that before an abortion may be performed on a minor, one of that minor’s parents must be notified. That is not to say that such laws do not reduce the number of abortions – they do – but, they do so only indirectly by ensuring sufficient decisional safeguards before the abortion may take place. It also contributes to a pro-life orthodoxy by impressing upon the mother in particular, and society in general, the gravity of the act.

Finally, at the other end of the spectrum is the Colorado initiative, which, like a parental notification law, is meant to communicate a respect for life, but, unlike it, places absolutely no real obstacles in the way of those seeking to obtain or perform abortions. Its sole purpose is to communicate that it is a life that is being taken in an abortion. It relies entirely upon a moral conviction in the hearts of individuals to not take that life.

As with all my posts so far, there is more that I could say. I’d very much like to further discuss the efficacy of enacting laws and constitutional amendments that function primarily to communicate a pro-life orthodoxy. It seems that many people think these actions useless, and that if we really want to fight abortion we need to go for the jugular. Well, thirty-five years after Roe, we know two things: (1) Roe persists, yet (2) more people consider themselves pro-life than in 1973. Maybe it’s time to reexamine that cynicism. The success or failure of these initiatives should provide a good rubric.

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1. 163 U.S. 537 (1896).
2. See Griswold v. Connecticut, 381 U.S. 479 (1965).
3. See Eisenstadt v. Baird, 405 U.S. 438 (1972).
4. Roe v. Wade, 410 U.S. 113 (1973) (quoting Eisenstadt, 405 U.S., at 453).
5. Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).

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The Illinois Analogs to the Born-Alive Infants Protection Act III Monday, Sep 1 2008

Sorry to have taken so long to follow up on the Illinois Born-Alive Infants Protection Act bills.  Here is what I’ve further found.

1. Thirteen different bills relating to the rights of infants born alive as the result of a botched abortion were proposed during the 92nd (2001-2002) and 93rd (2003-2004) Illinois General Assemblies.  See The Illinois Analogs to the Born-Alive Infants Protection Act.
2. Five bills – 92-1095, 92-1662, 93-1082, 93-2631, and 93-2855 – were essentially copies of the federal Born-Alive Infants Protection Act of 2002 (BAIPA).  However, only the fifth bill contained a “preservation clause” similar to the federal BAIPA.

   [Update/Correction: 93-1082 was later amended to include a preservation clause; however, Obama still voted against that amended bill]

   The federal BAIPA preservation clause states, “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.” This clause (rather unnecessarily, I believe) is meant to preserve the legality of abortions in which the fetus is killed while still inside of the mother’s body.  Obama claimed that the only reason he voted against the Illinois BAIPAs is because, unlike the federal BAIPA, they lacked a preservation clause.
   

3. Senate Bill 93-2855 did in fact contain a preservation clause identical to the federal BAIPA.  See The Illinois Analogs to the Born-Alive Infants Protection Act II.  Thus, if Obama in fact voted against that bill, or attempted to kill it by any informal means, he is misrepresenting his actions and his motivations.
4. The two Senate Bills in the 92nd General Assembly – 92-1095 and 92-1662 – passed the Senate, but died in committee in the House.  I’ve tracked down Obama’s vote on each.  For 92-1095, he voted “present” (equivalent to a “nay” for voting purposes).  For 92-1662, he voted “nay.”
5. None of the bills in the 93rd assembly made it to a full Senate vote.  Senate Bill 93-1082 never made it out of the Health & Human Services Committee, of which Obama was Chair.  There is no way to see online how members of that committee voted.  I could order the bill folder from Archives, but it seems unnecessary to do so, since the language was identical to that of the previous two bills, both of which Obama voted against.  Senate Bills 93-2631 and 93-2855 never made it out of the Rules Committee, of which Obama was not a member.  Thus, it would appear at first glance that Obama had no hand in killing these bills, unless there is something to be found in the transcripts of the 93rd assembly (which I have not yet gone through).
6. This means that Senate Bill 93-2855, the only bill that contained a preservation clause, did not in fact come before Obama’s committee, and thus he never voted on it.

   [Update/Correction: 93-1082 was later amended to include a preservation clause; however, Obama still voted against that amended bill]

7. However, several commentators have stated that Obama did play some role in killing 93-2855.  I am currently investigating this claim, and will post my findings when they are sufficiently concrete.

In Sum

It appears that the claim that Obama voted against an Illinois version of the federal BAIPA that contained an identical preservation clause is false.

[Update/Correction: 93-1082 was later amended to include a preservation clause; however, Obama still voted against that amended bill.  Therefore, the claim is in fact TRUE]

Whether it is true that Obama played in informal role in killing SB 93-2855, I cannot tell at this time.

Still – and I haven’t blogged much about this yet – even if Obama played no role whatsoever in the non-passage of SB 93-2855, I find his explanation of why he opposed the other bills to be highly dubious.  In a soon-to-come post, I will explain my reasons for this conclusion.

What’s next? (i.e., future posts)

1. Carefully explain why a preservation clause was unnecessary to prevent the bill from infringing upon Roe, and why Obama likely already knew this.
2. Post Obama’s statements made before the Illinois Senate when Senate Bills 92-1095 and 92-1662 were voted on.
3. Continue to investigate the veracity of the claim that Obama played an informal role in killing Senate Bill 93-2855, [Update/Correction: ] the only bill that contained a preservation clause.
4. Analyze the other bills relating to the provision of medical care to infants born as the result of botched abortion, compare them to the Illinois BAIPA bills, and examine Obama’s votes or other actions with respect to those bills.

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