President Bush suggested that the Born-Alive Infants Protection Act, that gentlest of measures which he signed into law earlier this month ("Welcome to the 'human family,'" Aug. 17), could be a first step in restoring a culture of life. It may well be, if the administration encourages further steps with other moves, quite as gentle. They would require no new legislation, and they might involve simply the artful raising of questions in public.
For one thing, the Department of Justice could inquire of places like Christ Hospital in Oak Lawn, Ill., whether they are still performing the so-called "live birth abortions," in which a baby is delivered, and then put aside to die. Or they could be asked whether they are performing any abortions that just might run afoul of the new law.
Merely to pose the question raises the prospect that a hospital or clinic could be in violation of federal law. And while the violation carries no penalties, there must be, ever hovering, the prospect of losing federal grants. That prospect may set off deep tremors; it could also induce many facilities to consider again whether they would be better off getting out of the business of abortion altogether.
The plot is thickened even further when we recall that, under the so-called Civil Rights Restoration Act of 1988, a school was considered to be a recipient of federal aid even if a student, not the school, was receiving a loan from the federal government. The president could now raise the question, just as a matter of interest, to his attorney general: Would comparable standards apply here? Might it be that a facility would come under federal regulations oriented toward preserving life if anyone entering the building was receiving, say, a loan or a Social Security check from the federal government?
The Bush administration includes many pro-lifers, and just the posing of that question to the Department of Justice is likely to be taken as the stimulus that begets, in turn, other questions and initiatives, inspired now by young lawyers, spirited in temper. We can also expect that people will appear at hospitals, seeking to act as guardians ad litem for children who might be endangered, for they might claim to act now to protect the civil rights of newborn infants under the Born-Alive Infants Protection Act, the right not to be destroyed if one survives an abortion.
It would be hard to contest any of these moves in court, for there is no prospect of suffering penalties, criminal or civil. And yet, just by posing these questions, or mulling over, in public, the possibility of executive orders, the administration could set off tremors among its adversaries. Perhaps President Bush could even ponder a problem aloud, as Ronald Reagan often did, in his remarks on the State of the Union. Mr. Bush could say, "We came together as Republicans and Democrats to protect the child who survived an abortion. But what does that mean? Does the child have an intrinsic dignity that commands our respect and protection? And if so, what follows from that? How does that understanding bear on the way we treat other children, born or unborn? I am not offering answers tonight; I just pose the question."
The president may not wish to remind some of his followers that his position on abortion is one they find uncomfortable. Still, they are not likely to be offended by a simple, disarming posing of questions. There is little to be lost in this gentle public teaching, and yet it may set off movements that cause wonder to us all.
-Amherst professor Hadley Arkes originated the concept of the Born-Alive act