April 26, 2005,
Enforcement of the act has lagged because information on how often medical help has been withheld from infants has been spotty, and federal officials have been unsure just which laws would now apply to them. Leavitt's Friday statement indicated that hospitals that withhold medical care from infants may be violating the Emergency Medical Treatment and Labor Act, which requires hospitals that have emergency rooms and take Medicare funds to provide treatment to anyone who needs it. Hospitals and doctors who violate that law are subject to fines (as much as $50,000 per violation) and may put their Medicare funding at risk. The law also creates a federal cause of action for any individual harmed. Leavitt also noted that federal grant recipients, under the Child Abuse Prevention and Treatment Act, must have procedures in place to respond to reports of medical neglect of children including, now, survivors of abortion.
These are the first steps toward enforcement of the law; the next will come when HHS takes action against medical providers who have broken the law. But Leavitt's announcement is a victory for pro-lifers, and especially for Hadley Arkes, the professor of jurisprudence at Amherst who came up with the idea for the bill.
Yet Arkes has not been pleased with the Bush administration on abortion. The April 2005 issue of First Things (which came out in March) carries, as its lead essay, Arkes's "Bush's Second Chance." The title would seem to suggest that Bush blew his first one. Which is pretty much Arkes's assessment. He believes that Bush's defeat in November would have been calamitous for pro-lifers. But he complains about what Bush has left undone:
With moves modest by any measure, Mr. Bush could have advanced the pro-life cause and propelled the Democrats in Congress into an internecine war that would surely have torn them apart, and left them morally exhausted during the season of the campaign. That the President should have had no interest in inducing such strain among his adversaries, at virtually no cost to himself, must be ranked among the great political mysteries of our time. But apparently more pressing than any desire to sow confusion among his adversaries has been the President's desire to preserve his reticence on the matter of abortion.
Arkes's argument, then, is first that Bush refuses to speak about abortion and make the case against it, and second that he has not taken a number of "modest measures" that Arkes thinks wise such as enforcing the Born-Alive Act or urging Congress to deny federal funding to any institution that performs partial-birth abortions.
I yield to no one in my admiration for Arkes's intellect and commitment to the pro-life cause. On this occasion, though, I think he has been tougher on President Bush than we pro-lifers have a right to be, and I fear that his proposal to cut off funds to hospitals in which partial-birth abortions are performed could backfire and damage the pro-life cause.
First, Professor Arkes fails to acknowledge many of this president's pro-life efforts. Bush has nominated a series of federal judges that most pro-lifers consider allies; he may yet nominate the Supreme Court justices who will overrule Roe which would be a bigger deal than anything Arkes is recommending would be. Bush signed the Unborn Victims of Violence Act, which said that assaults on pregnant women, when such assaults are federal crimes, are also assaults on unborn children. For the first time since Roe, federal law recognizes the unborn life, at least theoretically, from the moment of conception. Bush has sought to limit federal funding for research that destroys human embryos, withstanding enormous political pressures to liberalize that funding. He has also sought to ban human cloning.
Even Bush's rhetoric deserves better grades than Professor Arkes is giving. Bush doesn't talk about abortion any less than his father or Bob Dole did. My sense is that he talks about it more, if usually in the elliptical language of the "culture of life." Here's what he said in a proclamation for "National Sanctity of Life Day" on January 18, 2002 :
Consistent with the core principles about which Thomas Jefferson wrote, and to which the Founders subscribed, we should peacefully commit ourselves to seeking a society that values life from its very beginnings to its natural end. Unborn children should be welcomed in life and protected in law. On September 11, we saw clearly that evil exists in this world, and that it does not value life. The terrible events of that fateful day have given us, as a Nation, a greater understanding about the value and wonder of life. Every innocent life taken that day was the most important person on earth to somebody; and every death extinguished a world. Now we are engaged in a fight against evil and tyranny to preserve and protect life. In so doing, we are standing again for those core principles upon which our Nation was founded.
Whatever else you might think about that passage, it is hardly reticent.
Pro-lifers would surely be happier if the president used the bully pulpit to make their case more often. But pro-lifers will not get very far unless they are mindful of political realities. A few years ago, I wrote about "Jeff Bell's paradox": the pro-life political consultant's observation that even as Republicans became more uniformly pro-life, they talked about the issue less. Arkes, too, comments on the "reticence" of an administration with more pro-lifers in it than any since Roe.
The paradox is not a puzzle. In the late 1970s and early 1980s, Republicans were able to bring millions of voters into the fold by condemning abortion. But now most of them are in the fold. Louder and more frequent attacks on abortion would, perhaps, get some more pro-life Democrats to switch parties. But they would also drive some voters away. And the backdrop here is a general public that is ambivalent about abortion but not at all ambivalent in its desire not to have to hear much about the issue. There are many places in America where a politician can get elected as a pro-lifer. There are few places that would elect a politician who defines himself, first and foremost, as a pro-life crusader.
The public's temperament sets limits that are immensely frustrating to pro-lifers (and, indeed, to anyone who advocates a change in the status quo: supporters of increased public funding for abortion must also contend with the public's hostility to activism on abortion). But we can't simply wish them away.
Political movements, especially ones based on moral principle, can never content themselves with saying that their allies have done everything they can reasonably do. They should always press for more. If individual pro-lifers think that Republicans can gain ground by making the pro-life case with intelligence and creativity, and that they have missed opportunities to do so, they should by all means offer their suggestions. And then they should debate those suggestions: the proposal that Congress cut off funding for hospitals that perform partial-birth abortions is not the slam-dunk that Arkes thinks it is. Perhaps it would work, but there is an equally good chance that it would fail to win a majority of either house and would be extremely costly to the pro-life movement, which would stand accused of threatening people's health care. On this point, then, the president may have sounder political instincts than the professor.
Whether he is right or wrong on this particular point, Hadley Arkes deserves applause and gratitude from the pro-life movement for many intellectual contributions, above all the proposal for the "Born Alive" act. But he should recognize that George Bush deserves some applause and gratitude, too.