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.