Response to Kmiec on Obama

A reader responds to my earlier post:

A couple of important points in response to Kmiec's excerpt on Obama & the Born Alive bill.  Obama's justification at the time for voting against the bill (before the neutrality clause was added) was twofold.  One, he thought that the principle established by the law that previable unborn children are persons would undermine the rationale of Roe, namely, that viability is a meaningful marker regarding a woman's right to abortion.  Put aside for the moment, that even post-viability, the "health exception" (as interpreted in Doe v. Bolton) creates an essentially unlimited right to choose abortion at any gestational stage.  Two, Obama thought that imposing on doctors the obligation to deliver care to a previable child was an unconstitutional burden.  You can read Obama's statements here:  http://www.ilga.gov/senate/transcripts/strans92/ST033001.pdf (at 86-87).

His remarks in no way mirror those of Kmiec's (which seem to be grounded in some kind of "futility" analysis -- that is, no medical care would be beneficial to these kids, and is thus not obligatory).  Obama instead was worried about preserving the principle that previability, unborn children should be regarded by the law as subhuman.  The Illinois law, by contrast, symbolically and actually reflected the norm that moral respect and protection of the law should not be inversely proportional to one's vulnerability or dependence on others.  To hold otherwise, as Obama does, is to turn our best moral traditions on their head.  As Hans Jonas said, "absolute vulnerability invites absolute protection." 

A final thought -- "viability" is not, as a medical matter, a bright line.  It depends on many things unique to the particular baby in question.  Different babies are "viable" at different times.  I think that even if you take Obama's monstrous view (or Kmiec's wrongheaded view), it strikes me that there would be an obligation to determine viability.  But Obama's other positions on abortion clearly imply that he would oppose requiring doctors to determine viability in cases like this.  Finally, the legislative record showed that these babies were being placed in soiled utility closets, and in some instances took many hours to die.  Obama's position would even preclude palliative care for these children.  Kmiec's argument would similarly preclude palliative care -- which I think is deeply misguided.  I think that there is an ethical obligation to provide palliative care.

And, incidentally, contrary to Kmiec's observation, there are many examples in the law (Torts, Criminal Law, etc.) where a previable baby "born alive" can be the victim of a homicide, negligence, intentional torts, etc.