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Barack Obama and the Culture of Death - Rick Santorum's Take

This appeared in this morning's Philadelphia Inquirer. Pennsylvania U. S. Senator Rick Santorum asks the question and then answers it: "Who would oppose a bill that said you couldn't kill a baby who was born? Not Kennedy, Boxer or Hillary Rodham Clinton. Not even the hard-core National Abortion Rights Action League (NARAL). Obama, however, is another story. The year after the Born Alive Infants Protection Act became federal law in 2002, identical language was considered in a committee of the Illinois Senate. It was defeated with the committee's chairman, Obama, leading the opposition." Here former Senator Santorum's essay in its entirety:

American voters will choose between two candidates this election year.

One inspires hope for a brighter, better tomorrow. His rhetoric makes us feel we are, indeed, one nation indivisible - indivisible by ideology or religion, indivisible by race or creed. It is rhetoric of hope and change and possibility. It's inspiring. This candidate can make you just plain feel good to be American.

The other candidate, by contrast, is one of the Senate's fiercest partisans. This senator reflexively sides with the party's extreme wing. There's no record of working with the other side of the aisle. None. It's basically been my way or the highway, combined with a sanctimoniousness that breeds contempt among those on the other side of any issue.

Which of these two candidates should be our next president? The choice is clear, right?

Wrong, because they're both the same man - Barack Obama.

Granted, the first-term Illinois senator's lofty rhetoric of bipartisanship, unity, hope and change makes everyone feel good. But it's becoming increasingly clear that his grand campaign rhetoric does not match his partisan, ideological record. The nonpartisan National Journal, for example, recently rated Obama the Senate's most liberal member. That's besting some tough competition from orthodox liberals such as Ted Kennedy and Barbara Boxer.

John McCain's campaign and conservative pundits have listed the numerous times in Obama's short Senate career where he sided with the extremes in his party against broadly supported compromises on issues such as immigration, ethics reform, terrorist surveillance and war funding. Fighting on the fringe with a handful of liberals is one thing, but consider his position on an issue that passed both houses of Congress unanimously in 2002.

That bill was the Born Alive Infants Protection Act. During the partial-birth abortion debate, Congress heard testimony about babies that had survived attempted late-term abortions. Nurses testified that these preterm living, breathing babies were being thrown into medical waste bins to die or being "terminated" outside the womb. With the baby now completely separated from the mother, it was impossible to argue that the health or life of the mother was in jeopardy by giving her baby appropriate medical treatment.

The act simply prohibited the killing of a baby born alive. To address the concerns of pro-choice lawmakers, the bill included language that said nothing "shall be construed to affirm, deny, expand or contract any legal status or legal right" of the baby. In other words, the bill wasn't intruding on Roe v. Wade.

Who would oppose a bill that said you couldn't kill a baby who was born? Not Kennedy, Boxer or Hillary Rodham Clinton. Not even the hard-core National Abortion Rights Action League (NARAL). Obama, however, is another story. The year after the Born Alive Infants Protection Act became federal law in 2002, identical language was considered in a committee of the Illinois Senate. It was defeated with the committee's chairman, Obama, leading the opposition.

Let's be clear about what Obama did, once in 2003 and twice before that. He effectively voted for infanticide. He voted to allow doctors to deny medically appropriate treatment or, worse yet, actively kill a completely delivered living baby. Infanticide - I wonder if he'll add this to the list of changes in his next victory speech and if the crowd will roar: "Yes, we can."

How could someone possibly justify such a vote? In March 2001, Obama was the sole speaker in opposition to the bill on the floor of the Illinois Senate. He said: "We're saying they are persons entitled to the kinds of protections provided to a child, a 9-month child delivered to term. I mean, it would essentially bar abortions, because the equal-protection clause does not allow somebody to kill a child." So according to Obama, "they," babies who survive abortions or any other preterm newborns, should be permitted to be killed because giving legal protection to preterm newborns would have the effect of banning all abortions.

Justifying the killing of newborn babies is deeply troubling, but just as striking is his rigid adherence to doctrinaire liberalism. Apparently, the "audacity of hope" is limited only to those babies born at full term and beyond. Worse, given his support for late-term partial-birth abortions that supporters argued were necessary to end the life of genetically imperfect children, it may be more accurate to say the audacity of hope applies only to those babies born healthy at full term.

Obama's supporters say his rhetoric makes them believe again.

Is this the kind of change and leader you believe in?

Comments (45)

Is this the same Santorum that found those weapons of mass destruction is Iraq, overlooked by 165,000 troops?

I smell herring.

Utterly reprehensible. Obama ought to be thoroughly ashamed of himself.

Regarding the weapons of mass destruction in Iraq, I suggest you read Saddam's Secrets, by Georges Sada, a former general in Saddam's army. In his book, Sada confirms the existences of the WMDs, says what weapons they were, what countries they went to, when they went there, and who took them. He spells it out in enormous detail.

Michael Bauman

Russ, I only know two Rick Santorum's. One is a former US senator, the other owns a small delicatessen in my area and specializes in a great pastrami sandwich. My bet is it's the first guy.

In any case what has being right or wrong about WMD's got to do with killing babies who survive abortions?


We know Obama has a pro-abortion stance, but any further inflammation of the subject at the hand of Santorum is questionable, IMHO. I have every respect for the opinions of anyone who doesn't like Obama for his position, btw.

"Sada confirms the existences of the WMDs,... He spells it out in enormous detail."

He enjoyed his time on the Daily Show, but the Bush Administration refused to grab onto his life-line. And wouldn't Podhoretz & the WWIV crowd devote a year's worth of Commentary to their vindicator? I suspect "confirmation" is still aways off. Not so for the contention that partial-birth abortion is infanticide and anyone supporting such a practice should be socially stigmatized, politically marginalized and kept a safe distance from young children.

Read the book and see exactly why the Bush administration must not (and did not) give public endorsement to Sada's revelations -- not because they are false, but because they explicitly link the Russians, the Syrians and others to the evacuation of the WMDs. No good can come from Bush exposing Putin (and others).

As for Obama and the wickedness of abortion, I think the point is beyond reasonable dispute.

I think Bush and Co. have been remarkably uninhibited in alienating Putin, so I can't fathom why they would pass on this one. Surely the neocons wouldn't allow Realpolitik to suppress Sada's revelations. Not on this issue.

Expect more attempts, like the one by Russ, to link the pro-life agenda to the debacle of Iraq. And if I was dealing from his position, I'd probably do the same thing.


Complaints about Santorum are beside the point and can be ignored by going to the source.

The link above is to the IL state senate transcript in question. Obama opposes the bill, which would require a) that doctors not perform an abortion when it would be likely that the baby would be born alive after the procedure and b) if a baby were born alive, another doctor would need to be brought in to care for the baby.

The relevant section begins around p. 85 of the transcript.

I'm interested in the bit about its requiring the doctors not to perform the abortion if there were reason to think the child would be born alive. That's an aspect I've never heard mentioned before. I certainly had not heard any mention of its being in the federal bill.

The federal bill contained no enforcement provisions. Hadley Arkes, whose brain child it was, had hoped that it could be enforced directly by having federal funds cut to hospitals who perform live-birth abortions, as they do at Christ Hospital in Illinois. While there were some rumblings about warnings of funding cuts to hospitals, the last I heard Christ Hospital was still doing it, so I assume no such thing has happened.

I've skimmed the PDF, and from what I can tell it looks like the only enforcement provision here in the Illinois bill is that the parent or "public guardian of the county" can sue the hospital if they don't provide care to a born-alive infant. Have I got that right? How likely are such suits? Do I understand correctly that these would be civil suits if ever actually filed? So no criminal enforcement?

Does anyone know if this Illinois bill is having any effect, esp. on the Christ Hospital practices?

Is this the same Santorum that found those weapons of mass destruction is Iraq, overlooked by 165,000 troops?

Yeah, you're right. I can't imagine why anyone would be bothered by Obama's acceptance of killing babies who survive an abortion. He also voted against the bill banning partial birth abortion, during which procedure the child gets his brains scrambled by the doctor's scissors. If only they'd found those WMD's, I could get worked up about it.

No William, abortion is a terrible thing and you shouldn't play politics with it. Don't for Obama then, fine by me. I don't retract what I said though, Santorum is worthless.

Russ, a little late in the game to call for a time out on politics, about thirty five years late. But if we keep quite will the other side do so as well? Can you give us a guaranty? If not do we not concede the field to the advocates of what you call "terrible". And if everybody keeps quite what happens to the practices described above?

Still hammering away on Santorum, the irrelevance of which hammering eludes you. "Worthless"? I wish we could say the same and only that for Obama, but thanks for respecting my position, that the terrible is not to be made public policy.

It's fascinating how "we shouldn't politicize abortion" or "we shouldn't play politics with abortion" is always a code phrase for "abortion should be legal." How did that happen, I wonder? It's been like that as long as I can remember. Bring up the abortion issue in some company, and someone will purse his lips and say, "Well, I don't think that should be a political issue," as though uttering some profound truth. What is it supposed to mean _besides_ "I think abortion should be legal and pro-lifers should just drop the subject"? I've never been able to figure that out.

But let's remember, this Illinois bill was about taking care of children who survive an abortion and also (I've just learned in this thread) about not performing induction abortions with the intent that the _born_ child will be left to gasp out his last few breaths without care. Obama just couldn't stomach that, though. If a child isn't "viable," he says it isn't a "person," whether it has been born or not, so how can we require _any_ care of it? What's the matter with all of us? One wonders what, on Obama's view, should be the penalty for _active_ killing of born children who are not "viable" but who, darn it, keep on breathing for a while. Since he believes the omniscient Supreme Court has defined children not expected to live as "non-persons" (which isn't even true), should there be any penalty for strangling them or smothering them?

Perhaps I don't want to know the answer. And if he balks at that, why? After all, his whole objection to this bill is that non-viable children should not be given protection in law because they are not persons. The Constitution says so, y'know. So logically why have any problem with active killing? But logic is, I gather, not Obama's strong suit here. In that, of course, he's just being like his fellow pro-aborts.

Russ. If Santorum is "worthless," then you must consider him an unborn human being, one that could be subject to having scissors stabbed into the base of his head followed by his brains suctioned out and his skull crushed as he is dragged out of the only shelter he has ever experienced.

Requesting that we ought to keep this out of politics suggests that there is no injustice in this act that the community ought to remedy. "Keeping out of politics" means there is nothing wrong with this act and that the rest of us who are moved by it should be silent and acquiesce without resistance to its taking place.

We will call this "virtual disenfranchisement," all the banned political participation without the fire hoses. Ain't liberalism generous!

I think you all are on attack mode and waiting for my nefarious motives to spring out. I meant by playing politics was simple, abortion is a noble cause to be against, fine, I respect that, but my objection is there should be no room for theatrics or criticizing me for pointing out Santorum hasn't a credible reputation. Of course he's not literally "worthless." Dang, I'd better move along. Thanks for putting up with my opinions.

In case you hadn't noticed, we're always in attack mode when it comes to murdering innocent people.

No room for theatrics? Whose theatrics? Santorum is theatrical for pointing out the facts about Obama's indifference to the lives of unborn children, and the means by which they are killed? The only theatrics here (and the only instance of "playing politics") was your bringing up the WMD's when the subject at hand was killing babies. Stick to it.


I'm talking about your theatrics. I can have an opinoin that Santorum is a nut without being attacks as pro-abortion. Why does Santorum attack Obama when hillery has the same views on abortion? Why dosen't he talk about McCain being for stem cell research? Btw, Santorum didn't find those WMD in Syria, he found them in Iraq! Here is cheering on War based on lies. "I think he's been a terrific president, absolutely," Santorum said in the nearly hour-long debate on NBC's "Meet the Press." Defense Secretary Donald H. Rumsfeld -- whose resignation is being sought by some Republican candidates -- "has done a fine job," he said, and "there is no question that the Iraq war should have commenced."

You're still doing it. Talk about Obama's (and Hillary's too, if you wish) disdain for the lives of the unborn, or else shutup. When someone posts a thread on the Iraq War and WMD's, then you can talk about it.

Have I got that right?

That, I don't know.

How likely are such suits?

If there's a buck to made in it, highly likely. In fact, I hope such suits become so financially devastating to any defendant involved in it that it drives them out of business (or at least forces them to drop the practice).

Do I understand correctly that these would be civil suits if ever actually filed? So no criminal enforcement?

In many respects, when dealing with an institutional defendant rather than an individual, civil suits can be just as good, in some cases even better, than criminal enforcement. Criminal enforcement requires a higher burden of proof and has more strict sentencing guidelines. With a lower burden of proof and the specter of punitive damages, civil enforcement leaves much more uncertainty. Also, much harder to hide behind the 5th Amendment in a civil suit.

Oh yeah, not to mention that civil suits are "enforced" by the private litigants whereas criminal has to go through the prosecutor's office who may or may not have the time to deal with it.

But in this case the civil suit would have to be brought either by the "public guardian" (who presumably doesn't stand to gain anything himself) or by the parent of the child. But the parent presumably consented to the live-birth abortion in the first place and is therefore (I would think) unlikely to sue. I mean, suppose some state passed a law that women can sue abortion providers for aborting their babies, even if they consented to the abortion. It's just a weird set-up. If it is having no effect, I _think_ this is probably going to be why.

Based on what I've read elsewhere, Santorum is misrepresenting the facts -- though it's possible that it's what I read elsewhere that's wrong. In particular, Santorum says this about the federal legislation:

To address the concerns of pro-choice lawmakers, the bill included language that said nothing "shall be construed to affirm, deny, expand or contract any legal status or legal right" of the baby. In other words, the bill wasn't intruding on Roe v. Wade.

That's accurate about the federal bill, so far as I know. But he then leads readers to believe that the bill Obama resisted in the Illinois senate was the same. But my understanding is that it was not at all the same. My understanding is that the bill in question is the one that's on-line here. As you'll see, that bill does explicitly stipulate that any fetus "born alive" -- where a pulsating umbilical cord, among other things, suffices for this designation -- are persons. Obama's complaint, which is here (in comment #9) seems not to be that fetuses born alive shouldn't be helped, but that, because the bill under consideration stipulated pre-viable fetuses to be persons, it would be struck down as unconstitutional (presumably b/c of a conflict with Roe v. Wade).

If anybody has other sources of information that conflict with these, I'd like to hear about it. But if the information I link to is accurate, then things are very different from what Santorum would have us believe.



I don't actually understand why Santorum said that about nothing's being construed to expand or contract any legal status of the child and that this made it not in conflict with Roe. First of all, Roe v. Wade does not say and _must not_ be construed to say anything whatsoever about born children. Even the later Casey decision had to do with when an abortion must be permitted, and even to the extent that this is connected with viability, the claim that this extends to a denial of personhood to _born_ "pre-viable" infants seems incorrect as a strict interpretation of the precedents. Now, logically, of course if we deny personhood to the unborn child at such-and-such an age, it seems that consistency would demand denying it to the born child at that age. Pro-lifers rightly point this out in an attempt to drive the pro-abort to rethink his position. But we must certainly resist any attempt to drive it the _other_ way. The consequence would be, of course, that the _born_ child must not (for some bizarre pseudo-constitutional reason) be treated as a person in law, which would seem to mean, for example, that even state laws could not punish the _active_ killing--by asphyxiation, say, or strangling--of the born child as of any other newborn infant, at least if the state did this because (heaven forfend) it was treating born infants below a particular age as persons. (Could the state perhaps prohibit their active murder on the basis of laws against cruelty to animals?!)

If we are to talk of the logical consequences of one's views, _that_ is the logical consequence of Barak Obama's view: He apparently believes (wrongly) that Roe says that it is "unconstitutional" to treat infants at a particular age--born or unborn--as persons in law. It doesn't follow that they "shouldn't be helped," but it does very plausibly follow that no state can _mandate_ either that they be helped or even that they not be actively killed, if the state appears to be basing this requirement on the presumption that they are persons like other born infants.

This certainly should be horrifying.

And bravo for the Illinois state law if it _did_ clarify the legal rights of early premature born infants under law.

But it sounds as if Santorum did quite badly misrepresent Obama's views. And we should be careful here about how we represent what Obama did, too. The reason he gave for opposing the bill was that it would just get struck down as unconstitutional. (It sounds from his comments as if he had thought a previous bill would be struck down, and he had turned out to be right about that, and then this new bill was even more clearly going to be struck down.) I see no reason not to just accept that explanation.

All I can see thus far is that perhaps Santorum misrepresented (which may have been through genuine mistake, I suppose) the extent to which the Illinois law exactly resembled the federal law. Not Obama's views. It's fairly clear (to me at any rate) that Obama thinks it's unconstitutional to protect born infants below a certain age by law as persons. Not only is this a crazy misreading of Roe (which is, we should at least all agree, about abortion, not about born-child infanticide and what rights born infants do or don't have) but also something that no one should be endorsing or acquiescing in quietly but rather challenging tooth and nail. I mean, if someone thinks _that's_ what Roe means, then he should be opposing Roe more rabidly than any pro-lifer, not just acquiescing in it like, "Hey, born preemies younger than X aren't persons. Roe says so. So we'd better not protect them in law as persons, even after they're born. I'm just sayin'." That's not something to be "just sayin'" about.

I note that apparently the Illinois law here in question has _not_ been struck down as Obama predicted, I would say no doubt because, indeed, Roe and its progeny are (we should be thankful for small blessings) only about unborn children, not about born ones.

Ah, I stand corrected. It looks as though (if I'm reading this correctly) the Illinois law did not _pass_, partly through Obama's leadership. So we will never know for sure if the insanity of the courts would have extended to striking down laws against infanticide on born infants. But I doubt it. There is nothing in Roe or Casey or any of the other decisions that goes quite that far. Not yet.

All I can see thus far is that perhaps Santorum misrepresented (which may have been through genuine mistake, I suppose) the extent to which the Illinois law exactly resembled the federal law...

I guess that would be pretty bad in itself, since in the very respect that Santorum took great pains to emphasize, the Illinois was not at all like Santorum's federal bill, in explicitly doing what Santorum emphasized his bill did not do. Wouldn't this undermine his point about Obama being even more extreme than Boxer, Kennedy, & Hillary? (Incidentally, my understanding is that out on the campaign trail, Hillary has been criticizing Obama for not being pro-choice enough -- not that that means much.)

...Not Obama's views. It's fairly clear (to me at any rate) that Obama thinks it's unconstitutional to protect born infants below a certain age by law as persons.

That seems quite clear, so if Santorum had limited himself to Obama's views about the constitutionality of the various bills, you would be right. But Santorum seems to be quite perniciously "spinning" (to use a very kind word for what he's doing) Obama's thinking in a few spots, like this:

So according to Obama, "they," babies who survive abortions or any other preterm newborns, should be permitted to be killed

Obama objected to a particular bill. He explicitly gave his reasons and expressed willingness to consider better bills that might accomplish some of what the bill in question sought to do while being able to pass "constitutional muster." Mind-readers may think he's not giving his real thinking. But Santorum's representation of Obama's position seems only as fair as it would be in general for a politician's view to be presented as it is viewed by a political opponent who thinks he has an inside track on the original politician's secretly held, dark views -- i.e., not fair at all.

(I'm sure Santorum has been on the receiving end of this kind of treatment by his political enemies quite frequently.)

I consider two things quite relevant: First, there are plenty of "pro-choice" politicians who do not believe that the abortion precedents in place prohibit treating born infants of any age as persons under law. Prima facie, they don't. There has never been any precedent that says that they do. Obama's interpretation of abortion precedents seems itself to be quite radical, and one has to wonder why he holds it.

Second, why isn't he more bothered by this, if this is indeed what he thinks? Yes, yes, I know: You'll say Obama was _just_ saying that he's predicting what the court will do. But in my opinion, anybody who _does_ have that weird interpretation of Roe should be shouting it from the rooftops as an outrage and trying to get it overturned, not using it as a reason to vote down bills intended to challenge it. After all, precedents can be reconsidered. If Obama thinks Roe requires us legally to treat born, living, human infants as non-persons, shouldn't he be looking to see its infanticidal aspects modified rather than acquiescing in them? Basically, I see his approach as saying, "We can't treat born infants as persons if they are 'too young' according to Roe, and I'm okay with that." If you want to call that an overinterpretation, just think about this: Don't you think Senator Obama would say he supports Roe v. Wade, that he thinks Roe v. Wade should be upheld? Of course he would. He'd say it very loudly and clearly. Every pro-choice politician does and would. Yet he thinks this is what it means. A sobering thought.

If a pro-lifer said that this is what Roe means and that that it therefore must be overturned, he'd be cried down as (at a minimum) a scare-monger and misrepresenter, if not an outright liar. But a pro-choicer can get away with not only interpreting it in this strange and radical way but also _supporting_ it and voting against laws that he views as being contrary to it on this infanticidal interpretation.

That's pretty bad. It should even make pro-choicers think twice, but I fear it will not.

Here appears to be the scoop as far as the Illinois and federal bills. First, Santorum is simply unclear in the above article when he talks about the language added. The added language said that the bill would not add or contract any right of any member of the human species *prior to being fully born alive*. It was this language that several very liberal members of the U.S. Congress considered placed the bill beyond the possibility of coming into conflict with Roe. This shows that those people (incl. Barbara Boxer) do not think that Roe says anything about the legal status of fully born children, which confirms Santorum's point about Obama's being to the left of his own party.

Second, here is information on the similarity between the Illinois and the federal bill. Apparently that exact language was offered as an amendment of the Illinois bill, but the bill was still held up by Obama in committee. The exact order in which such things are done (e.g., would the amended language appear on the page Keith linked if the law never got out of committee and had gone into committee before the amendment was offered?) probably is responsible for the confusion. It appears definite, though, that Obama held up the bill even after its sponsor had offered this identical language--which, of course, still allowed the bill to grant full rights as persons to fully born children, as it should do, but which had allayed the fears of Boxer et. al. Here is a long quotation from the story:

That June, the U.S. Senate voted 98-0 in favor of the Born Alive Infants Protection Act (although it failed to become law that year). Pro-abortion Democrats supported it because this language was added: "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."

Democratic Sen. Barbara Boxer explained that with this language the "amendment certainly does not attack Roe v. Wade."

On July 18, 2002, Democratic Sen. Harry Reid called for the bill to be approved by unanimous consent. It was.

That same year, the Illinois version of the bill came up again. Obama voted "no."

In 2003, Democrats took control of the Illinois Senate. Obama became chairman of the Health and Human Services committee. The Born Alive Infant bill, now sponsored by Sen. Richard Winkel, was referred to this committee. Winkel also sponsored an amendment to make the Illinois bill identical to the federal law, adding -- word for word -- the language Barbara Boxer said protected Roe v. Wade. Obama still held the bill hostage in his committee, never calling a vote so it could be sent to the full senate.


There is confirmation of this story here, at the Illinois government's own page:


Where it says what this bill does:

Amends the Statute on Statutes. Defines the terms "person", "human being", "child", and "individual" to include every infant member of the species homo sapiens who is born alive at any stage of development. Defines "born alive" to mean the complete expulsion or extraction from the mother of an infant, 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. Provides that nothing in these definitions 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.

Thanks, Lydia. I think this is beginning to clear up a bit for me.

I was just going by Santorum's own description of the federal law. That was a mistake. It seems the federal law does stipulate that every member of our species that is "born alive" according to the specifications of the law will be construed as a person, regardless of its stage of development, while it specifies that this law will have no effect on the status of those that haven't been "born alive": see
(I'm following the text of the law itself in putting "born alive" in quotation marks: it's just to indicate that the phrase is to be understood as defined in the bill; I don't intend to be expressing any judgment about whether the use of the phrase is appropriate here.) But Santorum's own description of the federal law in the piece quoted above would seem to indicate that it merely prohibits the killing of babies "born alive" w/o saying anything about their status:

The act simply prohibited the killing of a baby born alive. To address the concerns of pro-choice lawmakers, the bill included language that said nothing "shall be construed to affirm, deny, expand or contract any legal status or legal right" of the baby. In other words, the bill wasn't intruding on Roe v. Wade.

So the federal law was like the state law -- at least in one form that the Illinois state law was being considered, at least in a committee meeting. What all this seems to mean is that Santorum does misrepresent (though quite possibly unintentionally) the content of the bill Obama opposed, but he does so by misrepresenting the content of the federal bill and then saying that the Illinois bill was like the federal bill. Thus, as is important to his comparison of Obama with Boxer, Kennedy, and Hillary Clinton, Santorum accurately portrays the relation between the two bills: that they were the same. (Well, the Illinois bill itself, as I've seen it & as it's linked to above, was different, but an amendment was apparently being considered that would bring it into line with the federal law, and apparently Obama still opposed it. That should be good enough for our purposes.) So it seems fair to say that Obama opposed a bill that was essentially the same as the law that was accepted by the other dems mentioned.

It is still clear, though, that Obama's professed reason for opposing the bill his belief that it was, and would likely be struck down as, unconstitutional. Worries about constitutionality do seem sensible to me here -- though I'm not in a very good position to judge this matter. The matter of when personhood begins has been a matter of constitutional interpretation; a mere state law (though this concern would apply to federal laws as well) that starts designating who is and who is not a person, and in particular that declares pre-viable humans to be persons, would seem constitutionally dicey to me -- though how reasonable this constitutionality worry is should be judged by those with a much better grasp than I have on the state of constitutional law. (Perhaps by those who have taught constitutional law? :)

Interestingly, if someone does have such a worry about constitutionality, modifying the bill to match how Santorum (mistakenly) described the federal law would directly address this worry -- and Santorum does present this feature of the law (that he misdescribes) as bringing the law into line with Roe v Wade. I wonder: Might he be simply misremembering the content of the law, and thinking (along with Obama?!) that there is a worry about the constitutionality of a law that declares the "born alive" to be persons that would addressed by having the law simply prohibit the killing of those humans while saying nothing further about their status?

No, I think there's just an ambiguity on the phrase "the baby" in Santorum's article. That is, I think it's merely badly written. He's speaking _there_ of a hypothetical unborn baby. Pro-lifers like Santorum and me do, of course, use the phrase "the baby" to refer to unborn babies. But I would have written the sentence more clearly.

I do not teach constitutional law and have no credential for doing so. But I have followed federal abortion precedents for nearly twenty years. There is _nothing_ in _any_ of them that makes Obama's concerns reasonable. They are about abortion. Indeed, they base their opposition to restrictions on abortion on the claim that we cannot know when the unborn child becomes a person and that _therefore_ the mother's "privacy" requires that she be permitted to abort. Nothing about her privacy, obviously, would apply to laws treating a born child as a person. In fact, this is the reaction pro-lifers routinely get in argument when they say that the pro-abort's position would require the legalization of infanticide: "But that's different." The concern is all for the woman's supposed right to control her body, to have a medical procedure, etc. There is nothing "dicey" about either the federal or the Illinois bill in terms of predicting that it will be struck down. And here I _can_ point out that no one has even tried to challenge the federal law in federal court. Not even NARAL. No one but Obama in a political position has said that it might be struck down in that way.

I repeat, too, that if Obama thinks that born children must not be treated in law under the abortion precedents, he should not be supporting them, as of course he is.

Does anyone know the case law for the term 'person'? I tried to do a Google search for anything on that, and I didn't come up with a lot. I posted what I came up with in a comment on my post on this issue last month. It didn't seem that there really was any precedent on the meaning of 'person'.

An opinion that served as the swing opinion to decide a case did comment on it, but it was only signed by three justices, and the other six didn't comment on that issue, even though some of them signed on to part of the three's opinion and the others signed on to other parts. The part in question only had support from those three, though.

In Roe itself, anything that discusses the moral status of the fetus is clearly only referring to a fetus within its mother's body. There's nothing about whether its status changes once it's born. So I'm not sure how he could be inferring it from that.

Exactly, Jeremy. He couldn't. Not if he had read Roe, of course, as opposed to talking through his hat about something he'd never done even minimal research about. Which, of course, is entirely possible. Perhaps Roe has penumbras as well as the Constitution. Who knew?

By the way, "fetus" refers _by definition_ to an unborn child. No born child, of any age, can be a "fetus." That's just a mistaken use of the medical term. I realize this is difficult for philosophers to get their minds around. We philosophers realize that location is not essence. It's a shame that pro-choice philosophers can't make the right application of that principle, of course. That is, if they have any problem with the legality of born-child infanticide.

I'd need to read a lot of the actual decisions. If what (certain) rulings do is permit abortions under certain conditions, without specifying how the abortion is performed, that would seem to be prima facie permission for procedures which kill the (pre-viable) baby right after it has been removed from the mother, since it doesn't seem necessary to death by abortion that the death occur inside the mother. [Compare: A regulation is passed that says houses in a certain neighborhood may be painted green. A home owner subsequently paints his house lime green. The neighbors complain. He points out that the regulation permits him to paint his house green. They would seem to be on pretty shaky ground if they responded: "Yes, but that regulation didn't say you could paint your house *lime* green. It doesn't ever address the issue of *lime* green houses." I'm not asserting the situation here is comparable; just that whether it is comparable depends on various details of the rulings that I don't now know about.] If decisions invoke the questionable status of the pre-viable babies (whether they constitute persons) in connection with rulings that abortions are to be permitted under certain circumstances, and they do so without specifying that the abortion must result in the baby's death before it (or its corpse) is removed from its mother's body, that would really seem to muddy the waters.

Relevant to this issue concerning Obama, what's important is not just Supreme Court decisions, but also the lower courts that have jurisdiction over Illinois. In particular, I'd very much want to know what earlier bill he's referring to here, what its exact content was, and what exactly became of it:

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.... We're going much further than that in this bill.

The "he" in my previous comment by the way was Obama.

Of course, the whole abortion situation is metaphysically a mess. The mother's right to privacy has been invoked to permit the killing of her unborn child on the basis (in part) of supposed agnosticism about the child's metaphysical status. That that should lead to a lot of legal fictions is almost inevitable.

But here's the thing: You can permit some abortion method that _might_ result in the child's death after birth, but you can also mandate that any child receive assistance after birth as a full person. This would, of course, provide a large motivation for the abortionist not to perform a method that is likely to result in a live birth, but it does not actually, per se, ban any abortions at all. It does not follow from a right to an abortion that one has a right to a dead child, post-birth. That is exactly what Hadley Arkes (who is, by the way, a constitutional scholar) was pointing out when he crafted the Born Alive act.

Again, this is just something coming from Obama. He's way out of the "mainstream," both among his fellow liberal law-makers and in terms of previous jurisprudence. There are no rulings to support him. And again, one has to wonder why he doesn't just accept that (for example) the federal law has been treated juridically as compatible with Roe and other abortion precedents. And why, if he thinks that newborn infants may not be protected as persons because of Roe, does he then support Roe?

Oh, on that last part: I realize he says that the earlier bill was struck down by the 7th. What I'm wondering when I say I wonder "what exactly became of it," is whether the ruling of the 7th was subsequently reviewed, & if so, what the result of that was.

I'm not sure how much longer I can keep it up with this cool, calm, and collected discussion of the bizarre possibility that born children *must not* be treated as persons by the states because of the U.S. Constitution.

I'll state my overall position once, so that it is clear why I find this rather a strain: First, in my opinion Roe itself was a sort of horrible joke perpetrated upon the American people. It was a blatant lie about the meaning of the Constitution. And this is w.r.t. to the subject of abortion and the claim that a woman has a constitutional right to an abortion. I oppose Roe with every fiber of my being, both as a matter of interpretation and as a matter of morality. It is monstrous on both levels.

It has never, however, been ruled to require that _born_ children be treated as non-persons. Never. I am...frankly appalled at the picture of supposedly sane and normal people now looking at Roe and its progeny themselves with a pocket lens, pondering coolly the possibility that they might _also_ somehow, by some indirect, drawn-out, implication, require that states not declare born children to be persons and to protect them accordingly. And doing this, mind you, not while saying, "And if that's the case, I'm switching my position and will support the overturning of Roe, Casey, et. al.," but rather doing it with an eye to making sure that state laws carefully _avoid_ treating born children who have survived an abortion as persons.

Since this is what Obama was doing, he deserves the opprobrium heaped upon him by pro-lifers around the country. And that's really all. I'm trying to say all this rather nicely, of course.

The only Illinois abortion law I can find in connection with the Seventh Circuit Court that would have been during Obama's time as an Illinois legislator was against partial-birth abortion. The oddity about treating that as the one he is describing is that it was initially _upheld_ by the Seventh Circuit (which, by the way, is a federal court, not a state court) and was only later struck down by the 7th Circuit after Carhart (ruled by the Supreme Court) held that PBA must be allowed for the woman's "health." Carhart itself, of course, has been partially modified by a later ruling.

If this is what Obama was referring to, of course it has nothing to do with declaring born children "constitutional non-persons." Moreover, he makes it clear that he is talking about an _abortion law_. What he just apparently does not get is that no matter how many times the courts say that a woman has a right to an abortion, this does not amount to her having a right to her child's being treated as a non-person after birth. And he is...creepy for thinking so and for being so eager to bring his actions as a legislator into conformity with so disgusting a "principle," one which he has merely dreamed up on his own in any event.

For my part, I'm trying (a) to better understand Obama's position myself so that I can properly evaluate it and (b) urge that his position be presented accurately in discussions of it. I wouldn't mind (well, I wouldn't mind all that much) even extremely strong expressions of disgust at Obama's position/actions, so long as those positions were presented accurately and fairly.

Oh, and I thank you, Lydia, for the help you've provided here on project (a), above. I do feel I'm starting to understand the issue better - though there's much I'd still like to know. Hopefully, some of this will be addressed in the general election, if Obama is the dem. nominee. (I doubt this will come out in during the primaries, since, to the extent Clinton has been addressing Obama on the issue of abortion, it has been to complain that he isn't pro-choice enough. ...Though one might have hoped -- and maybe still can hope -- that Santorum's piece in a Philadelphia paper might spur some helpful questioning during the long run-up to the Penn primary.)

I also couldn't find any 7th Circuit decision about abortion during Obama's time in the Illinois Senate except the one about the partial-birth abortion ban. I concluded that the only reason he could have thought it relevant is the mere fact that an abortion-related law was overturned, and he wanted to avoid that embarrassment again.

But this is an argument from ignorance. I should say that it's not just our ignorance, but Google's ignorance, and an argument from Google's ignorance is a lot stronger than an argument from our own ignorance. I tried really hard to find further Supreme Court cases with precedents on personhood and further 7th Circuit decisions on abortion that overturned Illinois laws during the time Obama was a state senator. I probably spent two hours looking through news stories and a few actual cases and then changing my keywords to see if I'd get better results with a different focus.

I'm pretty sure that's the one Obama was talking about. Which is really dragging in an irrelevancy, if I ever heard of one, and that for a number of reasons.

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