Republicans Getting Tripped Up By IVF Should Focus The Abortion Debate On Infants Born Alive

In Leon Trotsky’s famous line, you may not be interested in war, but war is interested in you. The Republicans may not be eager to fight the 2024 election over abortion, but Mr. and Mrs. Obama have made it clear they mean to make that the central point of the campaign to come. Clearly, the Obamas regard abortion as the main ace left to them, apart from former President Donald Trump. And the very reluctance of Republicans to talk about abortion — their evident diffidence, their persisting wish to change the subject — just makes it all the surer that the Democrats will insist they talk about it.

Republicans have clearly become the pro-life party, but politicians most confident in talking about this issue are those in the House, where they’ve been closer to pro-life constituencies. The story has been different with the contenders for the presidential nomination — they have fallen over themselves in trying to get their words in order.

All of this has been more deeply and amply confirmed with the panic shown by the Republicans over the last week with the issue of frozen embryos in Alabama. Some frozen embryos had been inadvertently destroyed, and the Supreme Court in Alabama upheld the claim of the couple who had lost the embryos they had generated in the process of in vitro fertilization (IVF). The embryo was not mere property; it was already the unique, small human being that, when implanted and allowed to grow, would emerge as the baby the couple had been seeking.

The court had not held that the embryo was a “child” — it was no more a “child” than a “major league outfielder.” These were just names given to human beings at different stages in their lives. But of course, if the embryo were a small human being and not a mere piece of property, like an extra suitcase to be stored, then it could not rightly be destroyed at will.

That set off the controversy — and the panic. Republicans had to rush to affirm that they supported the freedom to engage in IVF — and hope that the legislature in Alabama would find a reasonable way of settling the matter and allaying any panic. But the Democrats have grasped the issue as a way of trumpeting what dangers lie ahead if the Republicans hold to the notion that this embryo is — gasp! — the same kind of human being you and I were when we began. And yet the Republican political class cannot seem to find the wit or the nerve to explain to the public that simple truth standing at the heart of the matter.

To make things worse, the defenders of abortion have scored some successes in Ohio, Kansas, Kentucky, and Virginia, with lies that the pro-life states would deny the right to abortion even if the life of the pregnant woman were in danger. That is patently and persistently false, but with heavy funding and a raffish disregard for the truth, the false ads kept running.

In Texas, pro-life doctors have made it clear that pro-life laws have been framed to offer protection even to women who have suffered premature cervical dilation or premature rupture of membranes. This condition endangers the mother, and Texas law amply allows the intervention to separate the mother from the child even if there is no onset of infection and even if the threat is not immediate. Yet a cohort of pro-abortion doctors have brazenly muffled this news and actually broadcast the opinion that the Texas law would oppose these interventions for the mother.

Stepping Away From Distractions

The Republicans need to find a way of putting a decisive end to the distortions and focusing the public mind where it should be. It would be useful to step away from the distractions over barring abortions at 15 weeks or six weeks, at the state or federal level.

Supreme Court Justice Samuel Alito remarked in the Dobbs v. Jackson Women’s Health Organization case that if the law can protect a child at viability (around 24 weeks), it should be able to protect that same child before viability — for after all, as he pointed out, we are dealing with the same entity: a small human being in different phases of its growth. And yet Trump thinks he may negotiate over 15 weeks, while Florida Gov. Ron DeSantis did a “terrible thing” when he signed a bill to protect the same child at six weeks. Does Trump think we’re dealing with two separate beings, one not yet quite human?

Some have thought to finesse this issue by leaving it to the states to decide. But even before and after Roe v. Wade, the federal government had to deal with the public funding of abortion, or with the practice of abortion in military and diplomatic outposts abroad, the territories, and the District of Columbia. And President Joe Biden has made it clear that the first order of business for a Democratic Congress would be to enact Roe in a national statute.

Born-Alive Bill

But it may be folly to become embroiled in arguments over 15 weeks and six weeks when there is something far simpler and more disarming at hand. In 2002, Congress, with the Senate under Democrat control, passed the Born-Alive Infants’ Protection Act to protect children who survive abortion. But the serious penalties had been stripped from the act to avert a veto from President Bill Clinton when the bill was first introduced in 2000, and that omission remained later as a way of gaining passage of the bill.

In 2013, the country was shocked to learn of the abattoir run by Dr. Kermit Gosnell in Philadelphia, routinely snipping the necks of children born alive in late-term abortions. I was part of a movement to restore the civil and criminal penalties that had been stripped from that original bill.

Starting in September 2015, a new bill restoring the penalties has been voted on three times in the House, the latest in January 2023. And what it has revealed is the most radical transformation of the Democrats: All 220 Republicans voted for the bill, while all Democrats but four voted against the bill to protect children born alive. For the Democrats, the right to abortion does not even end at the point of birth — and that is the truth that the media have regarded as just too unsettling to report.  

For the past nine years, the media have blacked out this story. Republicans, unified in the Senate, have never been able to get 60 votes just to bring the Born-Alive bill to the floor for a vote. And yet the bill had already been enacted at the national level, with the support of Democrats. The only question is whether a serious penalty should be attached to doctors killing babies born alive in abortion.

This modest bill makes a beginning and starts a conversation. Whether the limit is extended later, to 15 or six weeks or even earlier, will simply depend on whether people are persuaded step by step. That will take serious, contested work, yet the matter may ease as people come to see that we are simply talking about the same child in the womb, just days or weeks earlier.

The mystery is why Republican candidates will not take a prudent step back and contest the Democrats at this precise point, which exposes what is most radical and embarrassing in the position of the Democrats: the position so jarring that the corporate media have collaborated in hiding it. Andrew Jackson, at the Battle of New Orleans, supposedly said, “Boys, elevate them guns a little lower.” It’s time for the Republicans to aim where it really counts.

Prof. Hadley Arkes is the founder and director of the James Wilson Institute on Natural Rights and the American Founding. He was also the architect of the original Born-Alive Infants’ Protection Act (2002).

The Federalist