The architect of high-profile Republican legislation to clarify that babies who survive attempted abortions must receive medical care is frustrated by the “timidity” of Sen. Ben Sasse, R-Neb.
Sasse and other Republicans, he believes, failed to follow his original scheme for the bill and to punish Democrats for favoring abortion rights.
“That has been my complaint about Ben Sasse, is he didn’t stick with it,” said Hadley Arkes. “Timidity or want of imagination is why … people [have] been so slow with picking up the fact that this kind of thing really resonates with the public.”
Arkes, a legal scholar who founded the James Wilson Institute on Natural Rights and the American Founding, is widely credited for coming up with the idea for the Born-Alive Abortion Survivors Protection Act, which Sasse introduced and was blocked by Senate Democrats last month. He is now a professor emeritus of political science at Amherst College.
He said the legislation should have included a preamble he drafted that set forth a legal theory that new rights the courts found enumerated in the Constitution can be regulated by Congress. He envisioned the legislation as a vehicle for Congress to establish its right to regulate abortion — beginning with protecting infants who survive abortion and slowly asserting its right to legislate overall abortion.
Arkes said he had lobbied senators to have his preamble attached to the bill but that they did not want to interfere with Sasse’s version, which didn’t include it.
“Sen. Sasse is focused on making the simple and direct case that it’s wrong to deny these babies care,” said Sasse’s communications director, James Wegmann, answering why the preamble was not included in the Senate bill.
Wegmann said the version of the bill Sasse brought to the floor has remained unchanged from versions introduced in both the House and the Senate in previous sessions of Congress.
Arkes first came up with what became the Born-Alive Abortion Survivors Protection Act back in 1988, when he included it in a debate brief sent to then-Vice President George H.W. Bush when he was campaigning against Michael Dukakis for the presidency.
His idea did not reach Congress until the presidency of Bill Clinton. It became law in 2002, in part at least, when President George W. Bush signed a version, though the bill did not include any penalties or reporting requirements.
Robert George, a Princeton professor and a friend of Arkes who worked with him to promote the bill, said the 2002 bill was a compromise. It satisfied Republican lawmakers who wanted credit for doing something with their base and moderate Democrats who wanted to avoid being seen as supporting infanticide, while avoiding backlash from pro-abortion groups like Planned Parenthood and NARAL.
In the years since the passage of the 2002 bill, efforts to get the penalties passed into law gained little traction. “We had a devil of a time convincing members of Congress, even the pro-life leaders in Congress, this was a good idea,” said George.
The controversy surrounding Kermit Gosnell, the Philadelphia abortionist convicted in 2013 of murdering babies born alive, renewed interest in adding penalties and reporting requirements to the current law.
Sasse, a first-term senator, reintroduced Born-Alive legislation in both the 114th and 115th Congresses. In both cases, the bills gained little attention or traction.
It was not until this year, when Democratic Virginia Gov. Ralph Northam appeared to endorse allowing abortions up to the point of birth or not protecting infants born alive, that enough political pressure mounted for there to be a vote on the bill. It failed on a 53-44 vote, mostly along party lines.
Although the legislation failed, Republicans have used it to portray Democrats as extreme on the issue of abortion. President Trump brought up the issue of infanticide in his State of the Union address. Vice President Mike Pence declared at the Conservative Political Action Conference last week that Democrats are “standing for late-term abortion and infanticide and a culture of death.” At least one anti-abortion group intends to use the issue against Democratic presidential candidates.
Arkes favors Republicans using his legislation to drive voters away from Democrats in the 2020 elections and said that Sasse should continue to bring the bill back up, even without his preamble, to keep the issue alive. “This is the distinct contribution he could make,” said Arkes. “Get this into play.”