“Freedom of Choice” vs. “Born Alive:” Critical Questions for an Obama Administration

In a presidential campaign issues arise and then fade from view. The emergence of new media preoccupations may make it seem as though yesterday’s controversy has been resolved. This is rarely true.

Such is the case with the issue of Barack Obama's position on legal protections for infants while an Illinois state senator. In a nutshell, the controversy comes down to a claim from Senator Obama that he would have favored the bill in the U.S. Senate that he opposed while he was an Illinois state senator. More specifically, at issue is the Born Alive Infant Protection Act (BAIPA), which gave "human" legal status to infants born alive accidentally following an abortion. The federal version of the bill passed the U.S. Congress easily, with abortion-rights supporters like Hillary Clinton in the Senate and Jerald Nadler in the House voting in favor. After Obama left the Illinois Senate to run for the U.S. Senate, the Illinois version of the bill flew through that body 52-0. The bill, both the federal and state version, passed unanimously in the U.S. Senate and Illinois Senate, both in Obama's absence.

During his term in the Illinois Senate, Obama opposed the bill, saying repeatedly that he did so because the state bill was worded differently than the federal bill. However, as noted by Factcheck.org and other sources, the bills were identical. As a committee chair, Obama did not allow the bill to get to the Senate floor, yet he said he would have voted in favor of the same bill had he been in the U.S. Senate. After Obama’s campaign admitted that Senator Obama was mistaken, it provided another rationale for his opposition, telling the New York Sun:

… that he had voted against an identical bill in the state Senate, and a spokesman, Hari Sevugan, said the senator and other lawmakers had concerns that even as worded, the legislation could have undermined existing Illinois abortion law. Those concerns did not exist for the federal bill, because there is no federal abortion law.

Versions of this explanation persist. During the Republican National Convention coverage, Alan Colmes of “Hannity and Colmes” said that the reason Barack Obama voted against the Illinois bill was because it conflicted with an existing Illinois law.

I submit that the Obama campaign’s explanation was a dodge. Look again at the campaign’s explanation: Obama says he would be unconcerned about voting for a federal bill giving human rights to born-alive infants of questionable viability because “the legislation could have undermined existing Illinois abortion law” and “there is no federal abortion law.”

First, his campaign claimed there was a state abortion law which influenced his vote. I have asked the campaign to identify the law but have received no clarification.

Second, the campaign’s explanation ignores the fact that Roe v. Wade is the law of the land. When he was a state senator, Obama opposed BAIPA on constitutional grounds and claimed the legislation violated Roe v. Wade. Given this rationale, he should not have claimed support for the federal version with the exact same language and intent.

The strongest strike against the campaign’s rationale is this: Obama wants to create federal abortion law in the form of the Freedom of Choice Act (FOCA) which would prohibit protection of “previable fetuses.” The Freedom of Choice Act, which Obama says would be a top legislative priority, says the government may not regulate abortion if such regulations contradict the following policy:

It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.

Recall that the Obama Doctrine of infant rights requires viability even if the baby has been born. In 2001, Obama said BAIPA was “an antiabortion statute” in violation of Roe v. Wade. He now says that his support of the federal BAIPA hinged on the absence of federal abortion law. It appears to me that Senator Obama has painted himself into a corner. Obama’s stated support for federal protection of infants who survive abortion is rendered moot by his support for the FOCA. If FOCA becomes law, then the rationale for supporting BAIPA disappears.

What happens in an Obama administration when there is a federal abortion statute in the form of FOCA which prohibits antiabortion statutes?

My pay grade is not as high a U.S. Senator, but I think I know the answer.

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