115th Congress may pass Born-Alive Abortion Survivors Protection Act (H.R. 37)

February 8, 2017

The 115th Congress, Defense of Life, and Christian Convictions

January 2017 was a productive month for the pro-life movement in the nation’s capital. Many pro-life leaders believe that with Republicans’ continued control of the U.S. Senate and House of Representatives extended into the 115th Congress, the inauguration of President Donald Trump, the 44th annual March for Life, the SCOTUS nomination of Neil Gorsuch, and, perhaps most notably, the introduction of several pieces of pro-life legislation in the Congress, America’s pro-life movement is winning the culture war.

It’s hard to deny that the driving force behind pro-life policy initiatives are the strongly-held Christian convictions in many legislators and pubic officials that all life is sacred. As my colleague Joseph Rossell reported, 90.7 percent of congressmen and congresswomen identify specifically as Christians. In light of this year’s new political atmosphere in Washington, key pro-life advocates, academics, and politicians see new opportunities and are channeling their convictions into the fight to adopt national pro-life policies.

The 44th March for Life attracted thousands from all across the country on January 27 and spawned several smaller pro-life events and conferences throughout the week, many of which I attended. In my judgement one of the most important of these events was a small policy panel held on January 24th at the Alliance Defending Freedom’s Washington office regarding the strategic importance of the Born-Alive Abortion Survivors Protection Act (H.R. 37). The panel was comprised of Rep. Trent Franks of Arizona, the bill’s sponsor, Sen. James Lankford of Oklahoma, Charmaine Yoest, and Steven Aden. The panel was moderated by Professor Hadley Arkes, the bill’s main architect, and the Director of the James Wilson Institute.

In the words of Rep. Trent Franks, the Born-Alive Abortion Survivors Protection Act is all about “preserving the life of a child who survived an abortion.” If passed into law, the proposed legislation would institute new regulations to defend the rights of children born alive as an unintended result of botched abortions. (Those interested in reading the bill’s comprehensive provisions in their entirety can do so here.)

The bill would also mandate that violations of its regulations be reported to law enforcement so that anyone who “intentionally performs or attempts to perform an overt act that kills a child born alive” may be punished for “intentionally killing or attempting to kill a human being.” Herein lies the strategic genius of Rep. Franks’ bill. By equating the rights of children who are born-alive abortion survivors with those of “regular-born” children, the bill calls into question the current legal understanding of Roe v. Wade as a whole.

According to Arkes, the “right to abortion would be unraveled” if the bill is passed because “the Democratic understanding, now [is that] the right to abortion, as proclaimed in Roe v. Wade, is not confined to the pregnancy. It must entail nothing less than the right to kill a child born alive.” Arkes argued that if this truly is the case, “then the meaning of Roe v. Wade 43 years later is hardly settled…. Whatever the [Supreme] Court meant to proclaim in Roe v. Wade, surely it did not mean to proclaim a right extending beyond the pregnancy and entailing nothing less than the right to kill a child born alive who survives the abortion.”

Beyond Congress, this public policy initiative deserves the Church’s attention, too. For every Bible-believing Christian there should be no ambiguity on the issue of the sanctity of life. Scripture tells us that all people are “fearfully and wonderfully made” in the image of God (Psalms 139:14). We can thus deduce that all people, regardless of age, level of physical development, or level of human dependency are entitled to their natural human rights. To this point Rep. Franks called the understanding that all people’s souls are stamped with the imago Dei the “basis of all law.”

By taking strong stances on the issue of the sanctity of life, Christians and the Church also have an excellent opportunity to profess their Christian witness to unbelievers. Sen. Lankford shared a personal example of how his pro-life convictions helped lead a Democratic member of Congress to Christ:

“I had a conversation during my orientation in 2010 as a brand new member of Congress with another brand new member of Congress, and in that conversation he said to me, ‘Does your faith ever get in the way of your voting?’ And I said, ‘I don’t know of a time that the Bible conflicts with the Constitution.’ He said, – he was on the other side of the aisle – he said, ‘Well sometimes I attend church and they’re opposed to abortion but politically I [support it].’ Well, that opened up a several year conversation [and] at the end of it he came to know Christ and there’s been a transformation in his life. He still calls me every Christmas and says, ‘Christmas is very different for me now than it ever was before.’”

Arkes also provided a compelling legal argument for why the Congress is permitted to play a larger role in curbing judicial activism, especially on life issues. According to Arkes, the classic opinion of Supreme Court Chief Justice John Marshall in Cohens v. Virginia (1821) found that “the judicial power of every well-constituted government must be coextensive with [that of] the legislative and must be capable of reaching every judicial question that arises out of the Constitution and the laws.” Arkes hence argued:

“The legislative power of the national government must be coextensive with judicial power; when the federal courts extend their reach to new issues and create new rights, those issues, those rights become part of the business of the federal government, and therefore they must be subject to the legislative powers of the Congress… If the Supreme Court can articulate new rights- say the right to abortion- then the legislative branch must be empowered to vindicate those same rights under same clause of the Constitution where the judges claim to find them… in [by] filling them out [and] marking their limits… The one thing that cannot be tenable under [the] Constitution is that the Supreme Court can articulate new rights and then assign to itself a monopoly of the legislative power in shaping those rights.”

Sen. Lankford agreed in this assessment that advancing pro-life policy is not just about delegating the work to pro-life judges. Sen. Lankford said, “We must win it legislatively as well as judicially… This is a both and argument: that we win over hearts and minds, we put in place pro-life judges, but we also raise up well-educated legislators that have thought these issues through and have made a decision and are willing to stand on the life issues.”

And while Rep. Franks admitted that he “wasn’t a Trump guy in the primary because he wasn’t always with us on this issue,” he remains hopeful, as he has “seen everything that [Trump]’s done… all the change in the right direction” and believes “now maybe we have a chance for the first time in 100 years to restore protection to these little babies.” And indeed, the bill does stand a fair chance of being passed, as in September 2015 it quickly passed the House in four days by a vote of 248 to 177. The bill has since been reintroduced in the House and now has a compliment version in the Senate, courtesy of Sen. Ben Sasse of Nebraska.

Rep. Franks also remarked that of all three of his pro-life bills currently in the House, the Born-Alive Abortion Survivors Protection Act has the “best chance to circumvent the rules in the Senate and I am praying that somehow we can get a fair vote, because if we do, it will pass.”

Pro-life advocates and people of faith can applaud Rep. Franks’ and Sen. Lankford’s efforts to defend the sanctity of life in the national legislature. Not only do their efforts have great potential to expand protection for the inherent rights of all human beings, but they also give Christians opportunities in our personal daily lives to discuss policy issues pertaining to the sanctity of life with our secular neighbors and fellow citizens. In doing so we have opportunities to share our Christian witness to shape hearts and minds for the glorification of God.


2 Responses to The 115th Congress, Defense of Life, and Christian Convictions

  1. immigrant1 says:

    Geat article George. Keep up the good work. In creating these regulations we must still keep in mind that the child in the womb is not the only victim. The woman herself is sometimes the victim of the abortion if not the pregnancy. As a society we need to also change our outlook on the sexualization of America and the world. As men we have to do our part to live chaste and pure lives and to protect the dignity of women.

  2. spongebuck says:

    Nice work, George. This is a great reminder of the practical implications our faith should have.

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