Thursday, May 19, 2005

A Call for Boldness: "The things urged on the president were scaled back to the slightest, simplest things that could be requested, and yet it was made clear that even the slightest things were too much to ask. Such as what? What about simply informing hospitals and clinics that there was such a thing as the Born-Alive Infants' Protection Act—that it was against the law now to withhold medical care from a child who survived an abortion? Even this year, administrators at hospitals professed not to know of this law. In the spring of 2003, we thought we had an agreement at the White House that the secretary of Health and Human Services would issue such a circular. Why did it take nearly three years? And why did the press to make this move have to come from the Congress, or from people outside the administration? Why not from the White House?"

"After the Born-Alive Act was passed, I suggested, in memos to the White House, that he consider moves as simple and costless as this: He could note that the Born-Alive Infants' Protection Act provides no penalties, criminal or civil. The bill was meant as a 'teaching bill,' you might say, mainly to plant premises in the law. But now the president could simply ask one of the committees on the judiciary, in either house, to consider the question of what an appropriate penalty might be for withholding medical care from a child born alive. And yet—I would have had the president say—let us make the question even gentler. Instead of threatening people with jail, or with knock-out fines, why don't we simply remove federal funds from hospitals and clinics who withhold medical care, or who perform the hideous partial-birth abortions? The only further exertion for the President was merely to pose one more question, either to Congress or his attorney general: What counted as a recipient of 'federal funds'? Did the formulas of the Civil Rights Restoration Act apply? In other words, if anyone entering a clinic was receiving a Social Security check or being covered by Medicare, was the whole place now a 'recipient of federal funds'?

"It was just the posing of questions. No executive orders, no major arguments. Entirely costless. But Ronald Reagan showed that he could set off weeks of discussion on late-night television, and stir hearings in Congress, simply by observing that fetuses feel pain. With the placing of those simple but pointed questions, the president could have set off deep tremors among the Democrats—the kinds of tremors that could indeed amplify into grave tensions, unsettling his adversaries, and yet setting the ground for other, serious measures. Was that really too much of a burden for a president to bear?"

"The Dred Scott decision on slavery was not undone by appointments to the courts. It was undone by a national, political movement led by Lincoln, and the resistance was felt in legislation long before it was felt in the courts. That political movement shaped the climate of opinion in which judges would work. We've had now 25 years of appointments to the courts by Reagan, and two Bushes, and we know the sorry record. We would also be engaging in a remarkable act of collective illusion if we imagined that even a Supreme Court, suitably altered, would move soon toward the overruling of Roe v. Wade. The courts are more likely to make their way to that end if the climate of opinion has been noticeably altered."

"Even Hillary Clinton makes sounds of reaching out to that pro-life constituency so massively lost to the Democrats. But she and her friends are evidently incapable of doing anything but making the most cosmetic of changes. This new move of the administration—this move to begin enforcing the Born-Alive Infants' Protection Act—is the gentlest of moves, and yet it is a momentous breakthrough."

"If the Congress moves with these further steps, I myself believe that nothing will hold the Democrats together. They could be pushed here into a crisis that could be terminal for them on this matter. We never expected to see the Soviet empire collapse in our lifetime; and here, I actually believe that we could be at the edge of the endgame on abortion. The administration has now produced, as I say, a breakthrough quite striking. This is not the time to hold back in doubt. If there was ever a time to push on, with measures gentle but pointed, this is surely that time. And to take a line from Lincoln, may the vast future not lament our failure to act right now, with measures so moderate, so focused, so readily within our grasp."

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