Is Obama "Pro-Infanticide"? Analyzing a Vote in the Illinois Senate

Across the blogosphere, right-wing commentators have been accusing Barack Obama of defending infanticide. In support of this claim, they cite Obama’s opposition, as a state senator in Illinois, to a 2002 proposed law entitled the “Illinois Induced Birth Infant Liability Act” (“the Liability Act”). This proposed legislation would, among other things, have provided a damages action against doctors and hospitals who failed to take proper care of a baby born after a failed abortion. Obama voted against the bill.

Critics have compared the Illinois Liability Act to the federal “Born Alive Infants Protection Act,” (“the Born Alive Act”), which President Bush signed into law in 2002 after near-unanimous Congressional support and a statement by NARAL Pro-Choice America that it had no objection to the legislation. Critics have suggested that Obama is therefore such a radical on the issue of abortion that he outflanks even NARAL, an organization dedicated to the protection of a woman’s right to choose. Is there any truth to the accusations? In this column, I will consider that question.

The Born Alive Act: Federal Legislation for Which Obama Has Expressed Support

The federal Born Alive Act (on which Senator Obama did not have an opportunity to vote but for which he has expressed support) offers two sets of definitions. It first defines “person,” “human being,” “child,” and “individual” – when used in federal legislation – as including a “born-alive infant.” It then defines a “born-alive infant” as a member of the homo sapiens species that has been completely expelled or extracted from its mother and, after expulsion or extraction, either breathes, has a beating heart, has an umbilical cord pulsation, or has definite movement of voluntary muscles.

The statute adds that the definitions apply regardless of whether or not the umbilical cord has been cut, and regardless of whether the expulsion or extraction resulted from natural or induced labor, C-section, or induced abortion. The statute then states that it may not be read to expand or contract legal rights applicable to members of the human species prior to their being born alive.

Put simply, according to the statute, any person who is completely born has all of the same basic rights under law as any other person who is completely born, regardless of whether or not it was wanted. Even if the person’s mother was attempting to terminate the life of the fetus within her, once it is completely outside of her body and alive, its status changes and the law treats this person no differently from any other.

Defending the Born Alive Act

This law makes perfect sense. The reason that a woman has the right to terminate a pregnancy is that the law may not compel her to have an embryo or a fetus inside her body, invading her physical integrity (albeit innocently) against her will. The right to terminate a pregnancy is not based, in other words, on an interest in procuring the death of an unwanted fetus, even though prior to viability, it is impossible to separate termination from fetal death. The definition of “viability,” as articulated in Roe v. Wade, is the time at which the removal of a fetus from its mother’s womb is potentially consistent with its survival. And it is at viability, under Roe, that abortion loses its constitutional protection (other than to avert threats to the mother’s life or health).

If the right at issue for those who are pro-choice is the right to terminate a pregnancy rather than the right to terminate the life of a fetus, then, one might ask, why are methods other than pre-term induction of labor permissible? That is, most abortion methods actively kill an embryo or fetus prior to its expulsion from the woman’s body rather than simply delivering the fetus to die on its own. If there is no right to kill the fetus as such, then why aren’t these other methods prohibited?

There are two answers to this question. The first is that when abortion occurs prior to viability – when expulsion of the fetus necessarily results in fetal death – it seems arbitrary to distinguish between killing the fetus while it is still in the womb and then removing it, on the one hand, and removing it so that it can no longer live, on the other. As long as a fetus is not viable, the method of abortion (whether induction or drugs or surgery) makes no real difference to the longevity of the fetus.

The second answer has to do with the woman’s health. Given that she has a right not to endure the ongoing invasion of her bodily integrity that a pregnancy represents, she also has an interest in a safe termination method that is associated with few complications and side effects. Requiring that she terminate only by inducing labor would interfere substantially with that interest. As long as the fetus is not viable, moreover, the woman’s entitlement to choose a safe method of abortion would appear to be especially powerful, because the fetus will die no matter how the abortion is performed.

Let us suppose, however, that an abortion somehow fails to result in the death of the fetus and instead produces a live birth – a baby who has emerged completely from the womb and is still alive. In that instance, neither the woman nor her doctor has the right to deny that live baby the same access to care that any other live baby in the hospital would have.

NARAL was therefore correct to find a law recognizing the personhood of a separate baby to be both unobjectionable and entirely consistent with a woman’s prerogative to choose abortion. The right for which NARAL fights is the right to terminate a pregnancy, not the right to make sure that the baby dies. For the same reason, Senator Obama’s support for this law is sensible and consistent with his support for the right to choose abortion as well. The Born Alive Act is one piece of legislation on which pro-life and pro-choice advocates can agree.

The Liability Act: The Illinois Statute Obama Voted Against

Like the Born Alive Act, the Illinois Liability Act also concerns itself with the interests of those who are “born alive as the result of … abortion.” Unlike the Born Alive Act, however, the Illinois law does not define its terms. It therefore seems likely that Obama refused to support the Act because of its ambiguity.

The Illinois Liability Act does not tell us, for example, at what point during the process of birth the infant can be said to have been “born alive.” This is important, because so-called “Partial-Birth Abortion” laws regulate the process of terminating a pregnancy, not simply the rights of an infant who survives that process. The difference between regulating abortion and protecting surviving infants who are born alive turns on when in the process of birth the law says that an infant has already been “born.”

One could read the Illinois Liability Act as unclear on the question of whether it applies more broadly than the Born Alive Act – to include the fetus still inside its mother’s womb, with part of its body expelled, and regardless of how early in pregnancy the abortion occurs.

There is, in fact, good cause for concern about ambiguity in the Liability Act, given what it does say about the meaning of “born alive.” It explains that “[c]hildren who are born alive as the result of an induced labor abortion or any other abortion are in special need of protection due to the fact that the intent of their birth is to cause the death of the born child.” If one is speaking of all abortions, as the statute purports to do, this statement is not quite accurate. An abortion provider’s intent is generally not to cause the death of a born child.

The provider’s intent, on the contrary, is ordinarily to cause death prior to the emergence of a “born child,” assuming that “born child” refers to a live birth following complete expulsion or extraction from the mother’s body. We are thus left to guess at the meaning of “born child,” because the statute – unlike the Born Child Act – does not tell us that the definition entails complete expulsion or extraction and at least hints at the possibility that it does not.

Therefore, when Obama’s critics claim that he opposed a statute that is “similar” to the federal Born Alive Act, they are missing (or perhaps disregarding) a critical distinction between the two statutes and, accordingly, between infanticide (the act of killing of an infant who has completely exited the mother’s body) and abortion.

Another Difference Between the Born Alive Act and the Illinois Liability Act

In addition to its lack of clarity on the subject of its protection, the Illinois Liability Act is distinct from the federal Born Alive Act in another respect that ought to concern conservatives. The Born Alive Act requires that a child born after a failed abortion be treated like every other child under existing laws. The Liability Act, by contrast, would authorize a parent or guardian to bring a lawsuit against a doctor or hospital for failing to take care of the child that survived the failed abortion. Stated differently, the Liability Act would create a new cause of action for money damages.

It is not clear what such a threat of litigation is intended to accomplish, particularly if it only applies in the relatively rare case of a baby who is actually born alive after an attempted abortion. As Senator Obama pointed out in disputing the need for such a law, there is no evidence to support the proposition that doctors stand by and let viable infants die. One might guess, however, that the purpose of the proposed law is to chill the practice of abortion – to deter doctors and hospitals from terminating pregnancies at all – by creating yet another associated risk for providers to take into account.

That being the case, it is hardly surprising that a pro-choice Senator, even one who supports the Born Alive Act, as Senator Obama does, would take a principled stand against the Illinois Liability Act. Contrary to right-wing accusations, his position in no way reveals support, either express or tacit, for infanticide.

Correction 8/15/08:

It has been pointed out to me that at least some of the controversy surrounding Senator Obama's position as a state legislator stems from his opposition to an Illinois bill that much more closely resembled the federal Born Alive Infants Protection Act than did the bill that I discussed in my column (and which Obama also opposed and was also criticized for opposing, in similar terms). To the extent that one criticizes Obama for this opposition, as the National Right to Life Committee does here, my column does not directly address that critique. Rather than explore in detail what might have led Senator Obama to oppose this other bill, I refer readers to The Huffington Post discussion of this issue.

Sherry F. Colb is a Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.