Factcheck.org: Obama and 'Infanticide'

Anti-abortion activists accuse Obama of "supporting infanticide," and the National Right to Life Committee says he's conducted a "four-year effort to cover up his full role in killing legislation to protect born-alive survivors of abortions." Obama says they're "lying."

At issue is Obama's opposition to Illinois legislation in 2001, 2002 and 2003 that would have defined any aborted fetus that showed signs of life as a "born alive infant" entitled to legal protection, even if doctors believe it could not survive.

Obama opposed the 2001 and 2002 "born alive" bills as backdoor attacks on a woman's legal right to abortion, but he says he would have been "fully in support" of a similar federal bill that President Bush had signed in 2002, because it contained protections for Roe v. Wade.

We find that, as the NRLC said in a recent statement, Obama voted in committee against the 2003 state bill that was nearly identical to the federal act he says he would have supported. Both contained identical clauses saying that nothing in the bills could be construed to affect legal rights of an unborn fetus, according to an undisputed summary written immediately after the committee's 2003 mark-up session.

Whether opposing "born alive" legislation is the same as supporting "infanticide," however, is entirely a matter of interpretation. That could be true only for those, such as Obama's 2004 Republican opponent, Alan Keyes, who believe a fetus that doctors give no chance of surviving is an "infant." It is worth noting that Illinois law already provided that physicians must protect the life of a fetus when there is "a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support."

Republican Senate candidate Alan Keyes attacked Barack Obama over this legislation during their 2004 race for the U.S. Senate, repeatedly  accusing him of favoring "infanticide." Because of this, Keyes said, "Christ would not vote for  Barack Obama." Nevertheless, 70 percent of Illinois voters did vote for Obama, but now the issue has bubbled up again.

The National Right to Life Committee released a statement Aug. 11 saying it had obtained proof that Obama was misrepresenting his 2003 vote by stating that the Illinois "born alive" bill that he voted against in committee lacked a provision, contained in the 2002 federal law, that foreclosed any effect on abortion rights. Obama, in an Aug. 16 interview, then said critics of his "born alive" stance were "not telling the truth" and "lying." On Aug. 18, the NRLC updated its white paper and continued to accuse Obama of dissembling.

As originally proposed, the 2003 state bill, SB 1082, sought to define the term "born-alive infant" as any infant, even one born as the result of an unsuccessful abortion, that shows vital signs separate from its mother. The bill would have established that infants thus defined were humans with legal rights. It never made it to the floor; it was voted down by the Health and Human Services Committee, which Obama chaired.

Earlier versions of the bill, in 2001 and 2002, had met with opposition from abortion-rights groups, which contended that they would be used to challenge Roe v. Wade. Because the bills accorded human rights to pre-viable fetuses (that is, fetuses that could not live outside the womb) as long as they showed some vital signs outside the mother, abortion-rights groups saw them as the thin edge of a wedge that could be used to pry apart legal rights to abortion. Obama stated this objection on the Senate floor in discussion of both bills.

However, Obama has said several times that he would have supported the federal version of the bill, which passed by unanimous consent and which President Bush signed into law Aug. 5, 2002, because it could not be used to challenge the Supreme Court's Roe v. Wade decision granting a legal right to abortion. On Aug. 16, the candidate repeated that again to David Brody of the Christian Broadcasting Network. He also prefaced his remarks with an attack on those who said he had misrepresented his position on the state bills, saying they were "lying."

CBN Correspondent David Brody: Real quick, the born alive infant protection act. I gotta tell you that's the one thing I get a lot of emails about and it's just not just from Evangelicals, it about Catholics, Protestants, main – they're trying to understand it because there was some literature put out by the National Right to Life Committee. And they're basically saying they felt like you misrepresented your position on that bill.

Obama: Let me clarify this right now.

Brody: Because it's getting a lot of play.

Obama: Well and because they have not been telling the truth. And I hate to say that people are lying, but here's a situation where folks are lying. I have said repeatedly that I would have been completely in, fully in support of the federal bill that everybody supported – which was to say – that you should provide assistance to any infant that was born – even if it was as a consequence of an induced abortion. That was not the bill that was presented at the state level. What that bill also was doing was trying to undermine Roe vs. Wade.

Who's "Lying?"
NRLC objects. They point to evidence that SB 1082, the bill Obama voted against in committee, was amended to contain a "neutrality clause" that is identical to one contained in the federal law. (The Illinois government's legislative information Web site shows the proposed amendment, but doesn't give results for votes in committee. NRLC's documents show that the amendment was adopted.) Since he voted against the state bill, NRLC says, his claimed worry about Roe v. Wade is a smokescreen, intended to cover up his unconcern with the protection of infant lives.

In the NRLC white paper, Legislative Director Douglas Johnson writes that Obama "really did object to a bill merely because it defended the proposition, 'A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law.' And it is that reality that he now desperately wants to conceal from the eyes of the public."

NRLC posted documents – which are so far undisputed – showing that  Amendment 001 was adopted in committee and added the following text: "Nothing in this Section 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." That wording matches exactly the comparable provision in the federal law.

The documents NRLC put out are a "Senate Republican's staff analysis" and a handwritten roll call confirming that the amendment was adopted. We contacted Patty Schuh, spokesperson for the Illinois Senate Republicans, who stated that both documents are genuine. We also contacted Brock Willeford, who was the staff aide whose name appears on the "staff analysis." He stated that he wrote the document immediately after the committee meeting and that he was in the room at the time of the votes. We asked Cindy Davidsmeyer, spokesperson for the Illinois Senate Democrats, about this. She declined to answer our questions but did not dispute Willeford's firsthand account.

A June 30 Obama campaign statement responding to similar claims by conservative commentator William J. Bennett says that SB 1082 did not contain the same language as the federal BAIPA.

Obama campaign statement, June 30: Illinois And Federal Born Alive Infant Protection Acts Did Not Include Exactly The Same Language. The Illinois legislation read, "A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law." The Born Alive Infant Protections Act read, "Nothing in this section 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." [SB 1082, Held in Health and Human Services, 3/13/03; Session Sine Die, 1/11/05; BAIPA, Public Law 107-207]

The statement was still on Obama's Web site as of this writing, Aug. 25, long after Obama had accused his detractors of "lying." But Obama's claim is wrong. In fact, by the time the HHS Committee voted on the bill, it did contain language identical to the federal act.

Same Words, Different Effect?
Obama's campaign now has a different explanation for his vote against the 2003 Illinois bill. Even with the same wording as the federal law, the Obama camp says, the state bill would have a different effect than the BAIPA would have at the federal level. It's state law, not federal law, that actually regulates the practice of abortion. So a bill defining a pre-viable fetus born as the result of abortion as a human could directly affect the practice of abortion at the state level, but not at the federal level, the campaign argues.

And in fact, the 2005 version of the Illinois bill, which passed the Senate 52 to 0 (with four voting "present") after Obama had gone on to Washington, included an additional protective clause not included in the federal legislation: "Nothing in this Section shall be construed to affect existing federal or State law regarding abortion." Obama campaign spokesman Tommy Vietor says that Obama would have voted for that bill if he had been in state office at the time.

But whether or not one accepts those arguments, it is not the reason Obama had been giving for his 2003 opposition. He told Brody that the federal bill "was not the bill that was presented at the state level." That's technically true; though the "neutrality clause" was identical in the federal and state bills, there were other minor wording differences elsewhere. But the Obama campaign statement says that "Illinois And Federal Born Alive Infant Protection Acts Did Not Include Exactly The Same Language." That's true for the earlier versions that Obama voted against. In the case of SB 1082, as it was amended just before being killed, it's false.

A Matter of Definition
The documents from the NRLC support the group's claims that Obama is misrepresenting the contents of SB 1082. But does this mean – as some, like anti-abortion crusader Jill Stanek, have claimed – that he supports infanticide?

In discussions of abortion rights, definitions are critically important. The main bills under discussion, SB 1082 and the federal BAIPA, are both definition bills. They are not about what can and should be done to babies; they are about how one defines "baby" in the first place. Those who believe that human life begins at conception or soon after can argue that even a fetus with no chance of surviving outside the womb is an "infant." We won't try to settle that one.

What we can say is that many other people – perhaps most – think of "infanticide" as the killing of an infant that would otherwise live. And there are already laws in Illinois, which Obama has said he supports, that protect these children even when they are born as the result of an abortion. Illinois compiled statute 720 ILCS 510/6 states that physicians performing abortions when the fetus is viable must use the procedure most likely to preserve the fetus' life; must be attended by another physician who can care for a born-alive infant; and must "exercise the same degree of professional skill, care and diligence to preserve the life and health of the child as would be required of a physician providing immediate medical care to a child born alive in the course of a pregnancy termination which was not an abortion." Failure to do any of the above is considered a felony. NRLC calls this law "loophole-ridden."

On the Record
While we don't have a record of Obama's 2003 comments on SB 1082, he did express his objection to the 2001 and 2002 bills.

Obama, Senate floor, 2002: [A]dding a – an additional doctor who then has to be called in an emergency situation to come in and make these assessments is really designed simply to burden the original decision of the woman and the physician to induce labor and perform an abortion. … I think it's important to understand that this issue ultimately is about abortion and not live births.

Obama, Senate floor, 2001: Number one, whenever we define a previable fetus as a person that is protected by the equal protection clause or the other elements in the Constitution, what we're really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a – a child, a nine-month-old – child that was delivered to term. That determination then, essentially, if it was accepted by a court, would forbid abortions to take place. I mean, it – it would essentially bar abortions, because the equal protection clause does not allow somebody to kill a child, and if this is a child, then this would be an antiabortion statute.

Obama's critics are free to speculate on his motives for voting against the bills, and postulate a lack of concern for babies' welfare. But his stated reasons for opposing "born-alive" bills have to do with preserving abortion rights, a position he is known to support and has never hidden.

Reprinted with permission from Factcheck.org.

Johnson, Douglas. "Obama Cover-up on Born-Alive Abortion Survivors Continues to Unravel After Sen. Obama Says NRLC is 'Lying,'" 18 Aug. 2008.

Illinois Senate Republicans. "Staff Analysis, Senate Bill 1082," 13 Mar. 2003.

Illinois General Assembly Committee on Health and Human Services. "Senate Committee Action Report," 12 Mar. 2003.

Obama for America. "Fact Check on CNN and Bennet's [sic] Inaccurate Claim That IL 'Born Alive' Legislation Obama Opposed Was the Same as Federal Legislation He Supported," 30 Jun. 2008.

107th United States Congress. "Born Alive Infants Protection Act," 23 Jan. 2002.

Illinois 92nd General Assembly. SB 1093, 22 Feb. 2001.

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