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.
September 24, 2008 at 11:04 pm
WE CAN ARGUE ABOUT WHEN LIFE BEGINS BEFORE BIRTH. LETTING A CHILD DIE AFTER BIRTH BECAUSE IT IS NOT WANTED IS INFANTICIDE
September 27, 2008 at 8:31 pm
Mr. Nugent,
Senator Obama mentions testimony that was given to the Judiciary Committee. Do you know if a transcript of that testimony exists?
September 27, 2008 at 9:25 pm
Well, I believe you’re referring to Jill Stanek’s testimony before the United States Senate Judiciary Committee concerning the federal Born-Alive Infants Protection Act (BAIPA) of 2001, which can be found here.
However, Barack Obama is not a member of the Senate Judiciary Committee, nor was he even a United States Senator at the time. Obama was Chairman of the Illinois Health and Human Services Committee when he was an Illinois State Senator, and the Illinois bills that mimicked the federal BAIPA did come through his committee. I have read that after the federal BAIPA passed, Jill Stanek testified in favor of the Illinois BAIPA bills, and that Barack Obama was cold and untouched by her gruesome account. However, I have not extensively researched this issue, and therefore could not comment on its veracity. I don’t believe transcripts of Illinois committee hearings are available on the internet. One would have to order a transcript from the Illinois General Assembly Archives – (217) 782-4866.
September 28, 2008 at 2:10 am
Obama is just creepy. All the other abortion advocates have the sense to roll over and play dead once the baby comes out. And all this playing around with the idea that somehow they’d be given MORE medical intervention than other preemies smacks of paranoia.
What is with him?
October 7, 2008 at 8:41 am
Funny, I find people’s inability to read what Obama said, and instead see what they want to see, far creepier than his concern that the Illinois Senate was passing a law that wouldn’t survive a court challenge.
You’d think people interested in legal protection for children would want that protection to actually be, y’know, legal.
October 7, 2008 at 8:47 am
Hi, Anton. Thanks for your comment. I did my best to explain why that protection would have been “legal” in this post. Furthermore, the federal BAIPA has done just fine, having not been struck down by a court and remaining in effect.
October 16, 2008 at 1:05 am
I linked to you for an Obama on Abortion post. Thank you for all the research you’ve done. You’ll be blog-rolled.
October 16, 2008 at 11:45 pm
Thank you, Lynn. You’re too kind.
October 28, 2008 at 8:01 am
nick, hey man, totally unrelated to the above post, but I’d love to hear your thoughts as to whether you think it is unconstitutional for the IRS to threaten pastors with the loss of their not-for-profit status if they endorse a candidate from the pulpit. Any thoughts or research on this? There seems to be a significant number of pastors defying this in regards to this election.
October 29, 2008 at 10:41 pm
Sorry for the late response, Lucas.
That is a difficult question to answer. The issue seems to hinge on the rather complicated “Unconstitutional Conditions” doctrine. The doctrine basically states that the government may not give you a benefit on the condition that you surrender a constitutional right, if the government couldn’t directly prohibit you from exercising that right in the first place.
For example, the government can’t offer a tax break to anyone who agrees not to criticize it. First, the government could not prohibit that speech directly. Second, the policy would result in a de facto tax increase (relatively speaking) for those who chose not to abide by the condition and therefore forfeited the tax break. Make sense?
Likewise, one could argue that the government shouldn’t be able to offer non-profit organizations tax-exempt status on the condition they not endorse political candidates. Why? Because they have a First Amendment right to political speech that could not be directly prohibited by the government. Therefore, the government should not be able to indirectly dissuade speech by offering tax-exempt status as a carrot.
So, if we go with this rationale, then the law is unconstitutional. But note that it would be unconstitutional as applied to any non-profit. It has nothing to do with the fact that it’s a religious institution at issue.
But the unconstitutional conditions doctrine, if taken to its logical end, would make many things unconstitutional. For instance, isn’t plea bargaining a situation in which the government offers you the benefit of a shorter prison term on the condition that you surrender your constitutional right to trial? But isn’t plea bargaining a good thing? You get the picture.
For these kinds of reasons, the Supreme Court has been equivocal about the doctrine. So, there’s no guarantee this kind of argument would prevail. My best guess is that, if this came before the Supreme Court, the Court would uphold the policy (and you’d probably even have some conservative justices, like Scalia, agreeing).
But, once again, note: the issue turns on free speech, not free exercise. Unfortunately, in Employment Division v. Smith, in 1990 (authored by Scalia), the Supreme Court held that as long as government interferes with religion inadvertently (i.e., by regulations that pertain to all citizens alike), you have no Free Exercise right to exemption from the law. I published a piece on this latter topic, if you’re interested in how the Smith decision might ultimately affect you and your church. Sorry, no human sacrifices for you, Lucas.
December 15, 2008 at 2:29 am
does this mean that a healthy baby could just lay on a table and die after there mother have given birth to them? is this supposed to be some form of abortion? how does this work exactly? how do you plan on letting the child die? i really have a lot of questions about this topic so if you have a response to help more more understand this topic that would be much appreciated!
December 15, 2008 at 2:39 am
this is really disturbing, that is just another form of murder. if we can do this to children that are complietey helpless and have no way to defend themselves why can we put people in jail because they commit murder? whts the diffrence besides the babies that just lie on a table and die have no way to fight for there lives if the child is already born and the mother can just let her child die she is the one that should go to jail. if i have any of this wrong could someone please let me know so that i dont think such a sick thing is really happing and worse allowed to be happening.
December 15, 2008 at 1:28 pm
Linda and Zebadia, thank you both for your comments.
To clarify, generally speaking, it is not the case that a woman could give birth to a child and then let the child simply die on the table. However, there is a form of abortion called “Induced Labor Abortion” in which such medical neglect would be technically allowed.
Normally in an abortion, the fetus is either vacuumed out wholesale or (if too far along in gestation to be so vacuumed) dismembered and then removed piece by piece. Lovely. But in an induced labor abortion, the mother is administered a drug, such as pitocin, that causes her body to go into labor. Typically, this happens prior to viability, such that the child could not survive outside of the womb, even with medical care. However, in a small number of cases, the child is far enough along that he might be able to survive if given medical care. Bills similar to the Illinois BAIPAs discussed on this blog attempt to intervene in cases such as these.
Thanks for asking your questions. You’ve spurred me on to resume blogging (after too long of a Sabbatical) in order to clarify issues such as this.