The Sticky Nature of Lawmaking

During last night's Presidential debate, the issue of abortion came up toward the end. In my view, Barack Obama was a little weak on the issue, appealing more to pro-choice voters and barely touching on abortion being, at the very least, something we should strive to prevent.

Still, there was this comment by Senator McCain:
"Sen. Obama, as a member of the Illinois State Senate, voted in the Judiciary Committee against a law that would provide immediate medical attention to a child born of a failed abortion. He voted against that."
During my senior year in high school, I was involved in a Youth and Government program. One weekend, schools across Oregon sent "delegates" to Salem, where we drew up, debated and voted on fake bills.

Anyone who's ever paid attention to law-making, or examined a state measure or proposition, understands laws are rarely simple. Lawmakers often have to sift through mounds of information, small-print and also have an understanding of previous legal findings. On the surface a law might look clear and obvious (Clean water in our Public Schools? Who could argue with that!), but underneath there may be myriads of stipulations, qualifiers, financial issues, etc. (The clean water goes only to the four richest schools in the district? Well that doesn't seem right...)

To put it more bluntly and theoretically, maybe a Senator is trying to pass the "Love the Children Bill", which makes it illegal to not love children. But maybe, on page 473 of that bill, there's a little line that says all adults over the age of 65 should be turned into food to feed starving children. SOYLENT GREEN IS PEOPLE!!!

So when voters are asked to look at the voting records of candidates, it behooves them to really examine the bills that were voted on.

My wife Mindy, who is adamantly pro-life and a pediatric resident here in Phoenix, has repeatedly explained the law Senator McCain refers to above. I may be paraphrasing here, and my facts may be a bit off, but here's the gist:

As Barack Obama pointed out, doctors are already required by law to provide medical attention to babies born from failed abortions. The issue is, as Mindy puts it, there are times where children cannot be kept alive (for instance, before 24 weeks in the womb, when they are unviable to life outside). Doctors, therefore, are wary of laws which force them into doing something they already do, especially since those laws could force them to keep premature children alive no matter what. This is one of the reasons, as Obama stated last night, the Illinois Medical Society was against the law. It wasn't because they were soulless baby-killers, it was because the law was unnecessary. Ultimately, it was another strategic move in the abortion debate to gain legal precendent, which has been the main battleground in recent years.

On the other hand, those stipulations and earmarks are often used to bat down proposals lawmakers may disagree with. If they don't like what a bill is proposing, legislators can basically focus on the details, which delays a bill's passage until it's written for broader appeal, or shutdown completely.

The point is, lawmaking is not easy, we need to investigate attacks on candidates voting records, and oversimplified rhetoric only works on a populace of fools.

(Note: I am one of those fools, because who has time to read through all that stuff?)


  1. Thanks Jordan, you're like our own, personal School House Rock. Maybe you can come up with something to help us understand the current economic climate as well.

    Perhaps "Recession Depression" a la "Conjunction Junction"? Or maybe "Soylent Green Jean" in the style of "Interplanet Janet"?

    And depending on what year you graduated, we may have debated each other in Salem back in the good old days.

  2. or "the patriot act? who wouldn't support something called the patriot act right after 9/11?"

  3. The NRLC has commented on the abortion portion of the debate last night:

    i highlight this...take it for what it's worth

    " - The Illinois Born-Alive Infants Protection Act (BAIPA) was a simple three-sentence bill to establish that every baby who achieved "complete expulsion or extraction" from the mother, and who showed defined signs of life, was to enjoy the legal protections of a "person." As a state senator, Obama led the opposition to this bill in 2001, 2002, and 2003. On March 13, 2003, Obama killed the bill at a committee meeting over which he presided as chairman. In the October 15 debate, Obama said, "The fact is that there was already a law on the books in Illinois that required providing lifesaving treatment." This claim is highly misleading. The law "on the books," 720 ILCS 510.6, on its face, applies only where an abortionist declares before the abortion that there was "a reasonable likelihood of sustained survival of the fetus outside the womb." But humans are often born alive a month or more before they reach the point where such "sustained survival" – that is, long-term survival – is likely or possible (which is often called the point of "viability"). When Obama spoke against the BAIPA on the Illinois Senate floor in 2001 -- the only senator to do so -- he didn't even claim that the BAIPA was duplicative of existing law. Rather, he objected to defining what he called a "previable fetus" as a legal "person" -- even though the bill clearly applied only to fully born infants. These events are detailed in an August 28, 2008 NRLC White Paper titled "Barack Obama’s Actions and Shifting Claims on the Protection of Born-Alive Aborted Infants -– and What They Tell Us About His Thinking on Abortion," which contains numerous hyperlinks to primary sources."

  4. Ignoring the specifics of the Born Alive Act debate...

    Jordan, your last, parenthetical point may have been said half in jest, but i think it's totally true. The average person has no time to investigate all these things thoroughly. But without informed voters, democracy breeds corruption and incompetence. Representative democracy only works when we can really know the candidates and when the candidates can really know us and our issues. But this can't happen on the national stage. We need to cut back the fed govt and put power closer to home (state/county/city) where we can keep a proper eye on it. Otherwise, we can just expect more waste, corruption, and dissatisfaction with the government on the part of all but the big corporations who can afford to take time to know and influence the national politicians. Centralization of power in DC means that only people with the money and influence to run in the powerful DC circles are represented. If that's not a recipe for corruption and fascist tendencies, i don't know what is.

  5. I agree with Nathan. As I was reading your post the thing that kept coming to mind was the question, "Well, how in the world do we, do I, access that kind of information????"

    I WANT to be informed. I WANT to be able to see ALL sides of things and then form my opinions accordingly.

    BUT......is it just me or do things move so fast and/or are so hard to access and absorb that it seems impossible?

    Short of spending the majority of my time keeping abreast of the issues, what would you guys recommend?

    Seriously, I want to know what the solution is-a practical solution-to this is (besides just voting the "right" candidate in, that is)

    Good post, Jordan.

  6. i've found this site to be very useful. http://www.politifact.com/truth-o-meter/ if one of the candidates says something that sounds fishy to me, i usually look it up there and they'll have a better explanation. they seem to have left off mccain's claim to always come to obama's defense when anyone in his party says anything nasty about him... i'd like to hear mccain call out palin for saying that obama "pals around with terrorists."

  7. What follows is the FULL TEXT of the Born-Alive Infants Protection Act that Obama killed, in the committee that he chaired, on March 13, 2003.


    AN ACT concerning infants who are born alive. Be it enacted by the People of the State of Illinois, represented in the General Assembly:

    Section 5. The Statute on Statutes is amended by adding Section 1.36 as follows: (5 ILCS 70/1.36 new)

    Sec. 1.36. Born-alive infant.

    (a) In determining the meaning of any statute or of any rule, regulation, or interpretation of the various administrative agencies of this State, the words "person", "human being", "child", and "individual" include every infant member of the species homo sapiens who is born alive at any stage of development.

    (b) As used in this Section, the term "born alive", with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after that expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

    (c) Nothing in this Section [the bill] shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being born alive as defined in this Section.

    Section 99. Effective date. This Act takes effect upon becoming law.


    Obama did not even claim, in 2001-2003, that he was opposing the bill because all babies born alive during abortions were already protected by existing law. On the contrary, he explicitly explained that he was opposed to the bill because he thought it to be an infringement on abortion to define what he called a "previable fetus" as a "person," even though the bill only did this for babies who were entirely born, and alive. All of this in documented in the NRLC White Paper, linked above.

    The (false) claim that the existing Illinois law already covered all live-born babies was invented in in 2004, when Obama ran for the U.S. Senate. It has been accepted unskeptically by certain media watchdogs who sometimes are bit too quick to accept a superficially plausible explanation, even though on closer examination the explanation collapses.

    The bill that Obama killed, quoted above, was virtually identical to a federal bill enacted in 2002 without a dissenting vote in Congress. That federal law, in effect now for six years, has not resulted in any futile medical care being provided to newborns. But it does ensure that nobody can argue that a living human infant is not a "person" for purposes of federal laws or regulations.

    Douglas Johnson
    Legislative Director
    National Right to Life


  8. @Nathan,

    Excellent, excellent point. I agree wholeheartedly. I've got another post in the works that may address that issue. It's all over the place right now.

    @douglas johnson,

    The law states: "...the words 'person', 'human being', 'child', and 'individual' include every infant member of the species homo sapiens who is born alive at any stage of development."

    I believe that fits under my wife's point on the law, which is that hospitals would then be legally obligated to keep babies alive who were so premature they could not viably live.

    In fact, that law states, if life begins at conception, that hospitals would be obligated to keep a fertilized egg alive!

    As for Barack Obama's explanation, that certainly is questionable, but I have no idea what other Illinois lawmakers had already said on the issue. They don't take turns reiterating every single point, and maybe he was not asked to argue that point.

    You also claim the law is "virtually identical", but, as was the point of my post, "virtually" could mean a lot of things. Does it state the definition I listed above?


  9. Getting back to the overarching issue, it's not that complicated you guys. Obama votes EVERY TIME he gets the chance to expand abortion rights. He told Planned Parenthood that the first thing he would do when he got into office is sign the Freedom of Choice Act. He is not pro-life. If Christians or Catholics want to vote for him, and they are looking for ways to justify his pro-abortion stance so that they feel okay about this, then they should just be honest about it. Don't pretend he is something he's not, or waste time look for clues/hope in his voting record that he has some shred of regard for the unborn.

  10. yeah, never mind that obama has a plan to make abortions rare, and mccain just wants to let states make the hard decisions. it's a lot easier to just paint a candidate as "pro life" or "pro choice" and be done with it.

  11. Jordan,

    The federal BAIPA and the 2003 Illinois BAIPA (the version that Obama killed in his committee), were the same except that the federal bill defined terms for purposes of federal laws and regulations and the Illinois bill defined the same terms for purposes of state laws and regulations. Here are the federal and state bills laid side by side:

    In quoting the bill, you have confused yourself by severing one part of the definition, the "any stage of development," from the other key components. You have to read them all together. Under the bill, in order to defined as as "born alive," you must be (1) a member of species homo sapiens, who (2) has achieved "complete expulsion or extraction from its mother," and (3)
    "who after that expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles . . ." And if you meet ALL of those conditions, then the term "person," "human being," "child," or "individual," in law or regulation, apply to you.

    A "fertilized egg" (a misnomer to begin with, because once fertilized there is a complete genetic set and it is not an "egg" anymore, but never mind) cannot possibly meet these conditions. Humans might be "born alive," as defined by the bill, starting roughly at 18 weeks, which is at least a month before they reach the point where such "sustained survival" –- that is, long-term survival –- is likely or possible (which is often called the point of "viability") -- a point that begins at about 23 weeks.

    In induced-labor abortions, labor is deliberately induced as an abortion method, and live births are not uncommon. For example, in testimony before the Illinois Senate Judiciary Committee on March 27, 2001, nurse Jill Stanek said: "It is not uncommon for a live aborted babies to linger for an hour or two or even longer. At Christ Hospital one of these babies once lived for almost an entire eight-hour shift. Last year alone, of the 13 babies that I am aware of who were aborted at Christ Hospital, at least four lived between 1-1/2 to 3 hours, two boys and two girls."

    The September 2000 report of the U.S. House of Representatives' Judiciary Committee on the federal BAIPA (H. Rept. 106-835) summarized some of the testimony regarding this practice:

    Two nurses from the hospital's delivery ward, Jill Stanek and Allison Baker (who is no longer employed by the hospital), testified before the Subcommittee on the Constitution that physicians at Christ Hospital have performed numerous ‘induced labor’ or ‘live-birth’ abortions, a procedure in which physicians use drugs to induce premature labor and deliver unborn children, many of whom are still alive, and then simply allow those who are born alive to die. . . . According to the testimony of Mrs. Stanek and Mrs. Baker . . . physicians at Christ Hospital have used the procedure to abort healthy infants and infants with non-fatal deformities . . . Many of these babies have lived for hours after birth, with no efforts made to determine if any of them could have survived with appropriate medical assistance. The nurses also witnessed hospital staff taking many of these live-born babies into a ‘soiled utility room’ where the babies would remain until death. Comfort care, the nurses say, was not provided consistently." (see pages 8-9 of H. Rept. 106-835).

    One example given by Mrs. Stanek was that an aborted baby "was left to die on the counter of the Soiled Utility Room wrapped in a disposable towel. This baby was accidentally thrown in the garbage, and when they later were going through the trash to find the baby, the baby fell out of the towel and on to the floor." Mrs. Baker testified that she "happened to walk into a ‘soiled utility room’ and saw, lying on the metal counter, a fetus, naked, exposed and breathing, moving its arms and legs."

    In its 2001 report on the federal BAIPA (H.R. 2175), the Judiciary Committee of the U.S. House of Representatives made these further points in its offical report (Report 107-186, August 2, 2001, pp. 7-8):

    The reason these statutes do not define a live birth as dependent upon the infant’s gestational age is fairly obvious. Many infants are born alive at 20 to 22 weeks and survive for hours, even though their lung capacity typically does not permit sustained survival. Under the prevailing standards of medical care, such infants are understood to be born-alive persons and are treated as such, even though they may only live for a short time. They are, for example, treated humanely, given comfort care, and issued a death certificate. And an individual could not escape criminal prosecution for entering a neonatal intensive care unit and murdering one of these infants simply because the infant will only survive for a short time.

    You have expressed the concern that declaring a live-born human to be a legal "person" would require futile medical treatment, but this concern is groundless. The House Judiciary Committee addressed this point as well:

    [The BAIPA] would not mandate medical treatment where none is currently indicated. While there is debate about whether or not to aggressively treat premature infants below a certain birth weight, this is a dispute about medical efficacy, not regarding the legal status of the patient. That is, the standard of medical care applicable in a given situation involving a premature infant is not determined by asking whether that infant is a person. Medical authorities who argue that treatment below a given birth weight is futile are not arguing that these low-birth weight infants are non-persons, only that providing treatment in those circumstances is not warranted under the applicable standard of medical care. H.R. 2175 [the federal BAIPA] would not affect the applicable standard of care, but would only insure that all born-alive infants—regardless of their age and regardless of the circumstances of their birth—are treated as persons for purposes of Federal law.

    Thus, with the federal BAIPA in force, in any facility within the reach of federal law, it would not be defensible to provide comfort care and pain relief to a very premature baby who had been born by spontaneous premature labor, while sending a baby at the same stage of development who was born alive after an abortion to a soiled utility closet. But there is nothing in the federal law, and there was nothing in the virtually identical Illinois bill, to require medically futile measures for either baby. Under the BAIPA both babies have the same human status and they must be afforded the same human rights.

    Douglas Johnson
    Legislative Director
    National Right to Life

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  13. @ everyone:

    The point of this entry was to point out how complicated voting records are, not to address abortion directly. I used John McCain's statement about Barack Obama's voting record as an example of how those two sentence blurbs can be deceiving, or at least not tell the whole story, especially when it comes to lawmaking.

    In this case, though, the law was abortion-related (sort of). Here's what my wife has to say regarding BAIPA:

    "When I read this law, all it says is if you are outside your mother's womb and have any sort of reflexive physiology, you are defined as being 'born-alive'. I think all rational persons would agree an embryo born at 22 days of gestation isn't viable with life, but this is when the embryonic heart starts beating. As I understand this law, it is saying that the 22 day old embryo is considered "alive", if it was outside the mom's womb with it's little beating heart. Now, I don't disagree with this statement,but what does that matter? It doesn't change the fact that the little bean-sized baby isn't going live. (even if we suspend reality and the infant could exist for a nanosecond after the cord was clamped.)""

    "What I would hate to see was this law used to compel a physician to provide care that is not indicated, or (not such a stretch) used to sue a physician who did not seek to resuscitate an infant because of their medical decision-making. I can only imagine this is why the Illinois State Medial Association was also against the law."

    "Also, in no way does it address what happened at Christ Hospital. At our hospital, if a baby is born and not considered 'compatible with life', they would be given supportive care for the few minutes to hours they lived. This includes being wrapped in a blanket, morphine etc. I can't imagine any doctor tossing a still-living infant in a garbage pail...it violates all of our oaths...and I have to think this was an anomaly or medical error. Regardless, this law doesn't address that sort of behavior or dictate comfort care for those infants. Maybe others do."

    This is Jordan again: I think what's most likely is this law was set up as a way of legally defining when life begins rather than having any sort of practical application. Barack Obama probably voted against it because he is pro-choice, but that doesn't mean it was a good law.

  14. Jordan,

    Not to prolong this discussion unduely, but I have to disagree with several of your points above.

    Regrettably, there are many reported examples of abortionists and abortion-clinic personnel treating human infants, born alive during abortions, in ways very different than babies born prematurely under "normal" circumstances. Because, you see, the entire object of an abortion is to kill that baby, and this affects how the abortionists and their helpers think about the targets of the abortions. It is just a complication if a baby manages to be born alive and even more of a complication if he or she persists in clinging to life for more than a few minutes. Terrible things have happened in such circumstances. I won't start posting examples here unless you ask me to as it would probably violate your editorial standards. But suffice to say that once people have it in their minds that they are just dealing with a "product of conception" or with an expendable "previable fetus" (Obama's term), then don't expect those same people to always act as if they believe that some magical transformation occurs as soon as that entity passes through the birth canal.

    As to "oaths," I am afraid that such oaths have proven to be rather elastic (the Hippocratic Oath prohibited physicians from participating in abortions at all, but that's been edited out). If you want babies born alive during abortions to be regarded as something more than medical waste, then you better have explicit laws in place that make it clear that they are legally protected persons.

    The notion that a 22-day-old embryo/fetus could be defined as "born alive" under the BAIPA requires, as your wife said, that we "suspend reality." I prefer not to suspend reality. In reality, you might expect to see infants "born alive," as defined by the bill, around 18 weeks.

    I have already quoted the U.S. House Judiciary Committee report, explaining why recognizing such infants, born alive during abortions, as legally protected human persons, does not require that they receive any greater degree of medical intervention than babies who are born prematurely through spontaneous premature labor. But it does have the effect of affording these two groups of born-alive infants -- the aborted and the not-aborted -- the same level of legal rights and protections. You wife is mistaken in thinking that the BAIPA does not bear on the practices regarding which the Illinois nurses testified. The implications of personhood are not spelled out in the BAIPA, because the BAIPA is a definitional bill that governs the interpretation of all other laws in which the terms "person," "human being," "child," or "individual" appear. And there are a lot of such laws.

    As far as I can see, the Illinois Medical Society did not invest any great effort in opposing the BAIPA. There were some other bills that were under consideration at the same time, dealing with late abortions, and the Medical Society just reflexively signed up as opposed to the whole lot of them. While I can't find it right now, in the recent past a journalist tried to find out what, if anything, the Medical Society specifically found objectionable about the BAIPA, and nobody there knew. Again, Obama's oppostion to the BAIPA, as he expressed it at the time, was precisely to the bill's recognition of a pre-viable born-alive human as a legal person.

    I was personally involved in working on behalf of the federal BAIPA, and there was no opposition to that bill by the AMA, or by any other organized interest group other than the pro-abortion advocacy groups (and even they ultimately backed off).

  15. re: the patriot act example

    While I was working at a non-profit working with mothers in addiction & mental health recovery, I worked on several pieces of legislation to expand treatment for women with children. On the state level, we had something passed called "Garrett's Law", which enacted harsh consequences for pregnant women who were found with drugs in their system. Not to make too long of a post, but there were a lot of negatives to what may sound like a moral bill. One of the major issues, was the lack of treatment beds for women, particularly pregnant women and especially women with children. We worked on legislation to expand funding for women's treatment.

    On the federal side, we worked with an organization in D.C. called the Rebecca Project who was addressing a similar issue on a national level. In this case, they were trying to get increased funding for women's treatment written into the Patriot Act.

    The Patriot Act? Man, these women will try to get their grubby hands on money wherever they can find it! Talk about pork-barreling, right?


    You see, during the reauthorization of the act, a senator had managed to add Methamphetamine as a "terrorist". Increased criminilization without increased treatment and rehabilitation options.

    Had the senator worked to pass comprehensive legislation addressing meth production and use, he would have certainly been forced to address all angles of the issue, but by slipping in the drug as a "terrorist" within a larger, popular bill, he was not held accountable to these same standards.

  16. @ Douglas:

    I'm sure you're right re: treatment of infants killed by abortions as opposed to treatment of children born and unviable with life. While I don't know of hard evidence, I see your point there and would assume treatment is different.

    Regarding the BAIPA's stipulation of what would be considered "born alive": Since embryonic heartbeats can be detected around the 22 day mark, wouldn't it be fair to assume an embryo outside of the mother's womb at 22 days would, under that law, be considered "born alive"?

    Does the federal BAIPA include that same exact stipulation? The problem to me seems rooted in the use of "or". Breathing and voluntary muscle movement do not happen until much later in pregnancy, but heartbeats begin around the 22 day mark.

    Thank you, by the way, for being involved in our discussion. I've appreciated the chance to discuss this issue.

    We'll be running a brief interview with Mr. Johnson early next week (the rest of the interview will be located on Bryan Allain's blog).

  17. Jordan,

    It is true that there is a heartbeat by about day 22. But there is no way that a fragile little 22-day-old embryo can achieve "complete expulsion or extraction from its mother" and still continue to manifest that heartbeat at the end of the process, and that is a key part of the definition of "born alive" under the BAIPAs. It would not be uncommon for humans to be "born alive," as defined in the bill, beginning at roughly 18 weeks, which is month or more before their lungs are developed sufficiently to permit long-term survival after live birth.

    Keep in mind, too, that estimating fetal age is not an exact science, and that individual babies vary. So an abortionist may think he is about to abort a 22-week unborn child, but maybe the child is actually 24 weeks. This is another reason why every born-alive child should receive medical evaluation and appropriate (not futile) treatment, rather than disparate treatment based on the circumstances of the birth.

    A child born spontaneously at 23 weeks has about a one-in-three chance of long-term survival with modern neonatal care, yet based on what I've read, few abortionists would consider a 23-week fetus to be "viable."

    Douglas Johnson
    Legislative Director
    National Right to Life Committee (NRLC)

  18. I agree legislation is "sticky" to say the least.

    Moving on.

    Obama consistently votes for pro-abortion legislation, while saying that in office he will work to promote legislation that will prevent the occurance of abortion.

    Okay, fine. That's sweet. But it's also like saying you want to decrease handgun deaths by educating school children while loosening restrictions on handgun ownership and concealed weapons permits. Or fighting for a greener America by aiding organic farmers while relaxing limitations on corporate fossil fuel emissions.

    I mean, really.