Estimated reading time: 9 minutes

It’s against the backdrop of many very real cases of babies born after abortions being killed or left to die that Republicans in Congress have once-again introduced the Born-Alive Survivors Protection Act. This version, introduced in January, is a rehashing of multiple prior versions, all ill-fated by lack of political consensus or, more rarely, mere lack of political will. It’s an updated version of the Born-Alive Infant Protection Act, whose architect, Hadley Arkes (full disclosure, my thesis advisor), termed it the “modest first step” in legislating against abortion.

But isn’t this too modest a first step? Without Roe, we can just ban abortion, even at the federal level—why don’t we do that?

And at the same time, why can’t we just pass a bill that protects the child born alive after an attempted abortion? Shouldn’t everyone agree on that?

Read those questions again, closely. We can ban abortion as soon as we have the legislators and president to do it, but the reality is that we can’t even pass a minimal law requiring medical care for children as an alternative to infanticide. This dynamic points to why this law, modest as it is, ought to be something all pro-life people are willing to fight for in this political moment.

A Brief Justification of the Born-Alive Bill over a Ban

I feel the need to briefly explain why I think it is morally appropriate to support the introduction and passage of a born-alive bill rather than only a full abortion ban. Two things make this explanation necessary: first, the fact that a total abortion ban is no longer prima facie unconstitutional under Supreme Court rulings; second, the continued presence of self-styled “abolitionists,” who accuse the pro-life movement of (among other things) complicity in abortion because we are willing to support measures other than an immediate, total ban on abortion.

It’s true that a full abortion ban would save many more lives than a born-alive act. It’s also true that merely proposing legislation doesn’t save any lives. Proposing a bill that won’t pass—and given that even this born-alive act hasn’t passed Congress, there’s not a snowball’s chance that a full ban would pass, let alone be signed by President Biden—does nothing unless you can somehow separately weaponize the voting record on that bill. A born-alive act in full effect saves a lot more lives than a full ban that sits dead in committee the moment it’s introduced.

An abolitionist might counter that I’m being utilitarian—sacrificing the good of the many unsaved lives in order to save a few. They may as well argue that firefighters on 9/11 sacrificed all the people they couldn’t get to in order to save those they could. If the firefighters had the power to save everyone, they would’ve; if pro-lifers had the power to save all of the babies, we would. But we don’t, and pretending that the non-exercise of a power we don’t have is aiding and abetting abortion practitioners is ignorant and mean-spirited.

As Arkes describes this principle, tracing it from Scottish philosopher Thomas Reid, “we do not hold people blameworthy or responsible for acts they were powerless to affect.” The corollary is, if people have power to do something, we can hold them blameworthy or responsible. The abolitionists have the power to, for example, support a law that can save lives, both in the short and long run, even though that law is limited in scope. Accordingly, their failure to do so can be held blameworthy; abolitionists are sacrificing those they can save in order to pontificate about saving those they can’t.

One final objection, on my own terms, would be that the born-alive act has nearly as little chance of passing as a full ban, so supporting it is irrelevant. While I would counter that the odds, though low, are much higher than a total ban, a born-alive act can accomplish things for the pro-life cause even while it’s being debated.

A Born-Alive Act Shows that Bodily Autonomy Arguments Are a Sham

Bodily autonomy is not the only justification for abortion, but it is the foremost one offered in the public square, surpassing even a denial of fetal personhood. You hear both—”my body, my choice” as well as “the fetus is a clump of cells”—but the slogans and arguments of the bodily rights position have far more real estate in contemporary abortion discourse.

For the record, we’ve provided many arguments against bodily autonomy as a defense for abortion rights and highlighted that “unplugging” is basically a convenient myth. But even if we granted, for the sake of argument, the full force of the bodily rights position in favor of abortion, it would still be the case that we would be morally required to support a born-alive act. After an unsuccessful abortion in which the child is no longer part of the pregnant body system (or no longer inside of the mother’s body, if you prefer), there are no possible bodily autonomy rights the mother could claim to justify any actions against the body of the child. The mother’s and child’s bodies are now separate; the “termination of pregnancy” has been accomplished.

And yet, pro-choice advocates staunchly oppose a prohibition against infanticide and requirement to provide basic medical care in the case of a child born alive after an abortion attempt.

Pro-choice opposition to a born-alive act cannot possibly be rooted in bodily autonomy arguments. In fact, the only personhood arguments that uniformly justify opposition to treating born children like people isn’t that of your standard pro-choice person, but rather of Peter Singer and his acolytes—the sort of people  who, if you trot out a toddler, would have to ask the toddler’s age because they have no fundamental logical issues with killing a one-year old who started walking early.

No, the real argument that justifies the right to an effective abortion—the right to a dead baby—is what I’ll term “absolute self-determination.” The idea here is that an individual doesn’t just have the right to control over their body or their choices, limited by reason, but rather the right to total autonomy—to make any choice they want, and bring it to pass. And so, according to this view, if a woman doesn’t want to have a child, it is not enough that she ceases to be pregnant, or that she is relieved from her duty to care for her child; that child must be wiped from existence to make it that she does not have one.

Absolute self-determination is, of course, a myth. Having someone kill your child doesn’t make it so that you don’t have a child; it just makes you the parent of a dead child. But this myth, false though it is, has much power in our contemporary culture. Even though a moment’s reflection would dispel the notion that you can exercise total autonomy over even banal daily choices, let alone whether and when to have a child, many people have convinced themselves that they do, and ought to, have absolute self-determination, and that it’s the job of the government to empower (and fund) them to bring about whatever choices they want.

Everything I’ve described operates quietly in the background. It’s not that bodily autonomy, per se, is fake; it’s that, rather than standing as a right on its own as it’s generally presented, it’s an instantiation of the broader claimed right to absolute self-determination. This isn’t generally obvious, but proposing a born-alive act forces it out into the open. Violinist-style bodily autonomy arguments can’t support the pro-choice opposition to born-alive bills. Pro-choice advocates’ support for post-birth abortion—or infanticide, as it’s been termed until now in history—reveals their radical claims and shows that their garden-variety bodily autonomy arguments are a sham.

Putting Pro-Choice Politicians on Record as Supporting Infanticide

Beyond this, a born-alive act serves the important role of clarifying the debate. When a born-alive act is put up for a vote, or debated in committee, the question ceases to be “should a woman have the right to do whatever she wants with her body?” Instead, it becomes “is infanticide a part of the purported right to abortion?” And now, pro-choice politicians get to choose between a) fighting the well-financed abortion machine that helped them gain office and sets their agenda, or b) going on record as supporting infanticide when it’s not genuinely controversial in this country that born children are persons with full rights and deserving of protection by the law.

Right now, “pro-life” politicians are practically in hiding because they want to avoid the thorny job of defending unborn humans. Pro-choice activists have no issues with asking questions about difficult edge cases, and why would they? As many feared, a lot of conservative politicians became suddenly unreliable on abortion once there was a real political opportunity and real political cost.

Rather than making a milquetoast defense or bald retreat, pro-life leaders (political or otherwise) should be counterpunching. Here’s the dirty secret of the abortion debate: both sides have hard cases. It’s fine to make pro-life people give an answer about their hard cases; we should have to discuss teen and pre-teen pregnancy from rape and pregnancies where the mother’s life is at risk, even though they’re rare, because they are both very real situations. But then it becomes especially important for pro-choice people to be made to answer for their very real hard cases, too. “Mr. Pro-Choice Politician, do you support leaving babies to die who are born alive after abortions? Do you support the right of women to choose abortions based on protected characteristics, such as sex or disability status?  Do you support third trimester abortions on a healthy woman carrying a healthy, viable fetus? Why do you, a pro-choice man, get to have a say on abortion, especially over and above the many pro-life women? How are your answers consistent with the position you claim to hold and represent?”

Do you know what’s unpopular in America? Killing children. The struggle for the pro-life movement is to convince our compatriots that abortions, which happen behind closed doors and target small humans hidden from view, are fundamentally the same as killing a toddler. The Born-Alive Survivors Protection Act can help us reveal this truth.

After all, if the “right” to abortion means it’s okay to kill at least some newborns, even the mushiest middle is going to start connecting the dots that the right to abortion is, and always has been, the right to a dead baby—and that what is killed in an abortion was a person like us all along.

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The post Banning Post-Birth “Abortion”: Why the Born-Alive Act Matters originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.” 

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