Monday, Oct. 13, 2008

How Valid is Palin's Abortion Attack on Obama?

By Michael Scherer / Washington

With less than 23 days to go before Election Day, John McCain and Sarah Palin are launching a range of attacks on their Democratic opponent that revolve around one central question: Who is Barack Obama? Whether these broadsides focus on Obama's ties to former domestic terrorist William Ayers, his votes on funding troops in Iraq or his record on crime in Illinois, they all aim at emotional, hot-button issues that the McCain campaign hopes will cut through the political clutter and current financial crisis to help convince voters that Obama is not the man they thought him to be — nor is he fit for the most powerful job in the world.

The McCain campaign's latest salvo centers around perhaps the hottest issue of all, abortion, which up till now hasn't dominated much of the campaign conversation.

Late last week, and with little fanfare, Palin began claiming at rallies and in a radio interview that Obama had once opposed providing medical care for certain newborn babies, who later died. Without any clear context, Palin's statements seemed to suggest that Obama supported a form of infanticide.

"As a state senator, Barack Obama wouldn't even stand up for the rights of infants born alive during an abortion," Palin said on Saturday, during a Johnstown, Pa., rally. "These infants, often babies with special needs, are simply left to die."

The allegation was part of a broader line of attack that Palin, who opposes abortion in all cases including rape and incest, used to paint Obama as the real extremist on the issue of abortion. "A vote for Barack Obama is a vote for activist courts that will continue to smother the open and democratic debate we need on this issue, at both the state and federal level. A vote for Barack Obama would give the ultimate power over the issue of life to a politician who has never once done anything to protect the unborn."

Two days earlier, during an appearance on the Laura Ingraham Show, Palin said Obama had voted against providing medical care to babies who were alive after attempted abortions. "It's very appalling," Palin said. "If more Americans could understand how absolutely extreme that position is, there would be a heck of a lot more outrage than we have already seen." Hours later, in Wisconsin, she repeated the charge that Obama had voted against providing "health care for a child who was born alive as a result of a botched abortion."

In each case, Palin's words were carefully chosen for maximum effect, without employing any outright falsehoods. Taken in isolation, however, her statements were also quite misleading, as they suggested that Obama supported the death of babies after birth who had a chance of survival.

The reality is very different. Between 2001 and '03, Obama repeatedly voted to oppose bills in the Illinois senate that would have declared, simply, that any child "born alive" as a result of an abortion shall be protected as a "human person" under the law. The bills broadly defined a live birth as any child outside the mother who shows voluntary movement, breathes or has a beating heart, among other attributes.

At the time, as the Obama campaign has pointed out, Illinois state law already required doctors to provide medical treatment for all children born after abortions who demonstrated viability, which was defined under the law as a "reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support." The Born Alive legislation, therefore, would have primarily impacted a different category of babies — those born with life signs that doctors decided did not have a reasonable chance of survival.

During the debate over the bill, Obama and other abortion supporters used the term "previable fetuses" to describe these situations. Obama voiced concern that if applied to state abortion law, the Born Alive legislation's recognition of a "human person's" rights for the previable would complicate the legal underpinnings of abortion rights.

In a 2001 statement on the state senate floor, Obama explained his rationale for opposing the bill. "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 child, a 9-month-old child that was delivered to term," he said. "That determination then, essentially, if it was accepted by a court, would forbid abortions to take place. I mean, 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."

(See photos of Sarah Palin on the campaign trail here.)

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At the time, pro-choice leaders and legislators across Illinois joined Obama in making this argument. "It would have completely eviscerated Roe v. Wade," says Pam Sutherland, who was president of the state's Planned Parenthood chapter at the time. "[The] bills were so unclear that it would have been litigated forever." Obama was not alone in heeding these concerns. More than 20 other senators joined Obama in opposing one of the early versions of the Born Alive bill.

In addition, the bill was packaged with other legislation that would have established liability for any doctor or hospital that "harms or neglects or fails to provide medical care" for any live child after birth. Coupled with the Born Alive legislation, this would have established liability for the death of children with life signs after abortions, even if those children had no chance of survival. The Illinois State Medical Society, which represents the state's doctors, sided with Obama, opposing the package of bills because they "attempted to dictate the practice of medicine for neo-natal care and greatly expanded the civil liability for physicians."

The principle advocate for the Born Alive legislation in Illinois was Jill Stanek, a nurse who testified in 1999 that babies deemed nonviable after birth following abortions were left to die in what she called a "soiled utility room." Since then, Stanek has become an outspoken opponent of Obama's candidacy. In a recent interview, she explained that one of the purposes of the legislation was to remove the decision about a child's viability from the doctor performing the abortion, whom she maintains cannot be trusted to make an accurate judgment. "If a baby is going to be alive at his abortion, there should be a second physician on hand," Stanek said.

In recent months, Stanek has been working with an independent group, BornAliveTruth.org, which has been running television ads in swing states that feature an abortion survivor, Gianna Jessen, who says that "if Barack Obama had his way, I wouldn't be here." This claim is misleading, because Jessen was deemed viable after she was born following an abortion procedure. In an interview with TIME, Stanek argued that the ad should still be seen as accurate, since it is possible that a doctor could have made a different decision. "It is more of a hypothetical," she said. "Obama would have agreed with the abortionist if the abortionist so chose to have her be claimed nonviable."

The debate over the meaning of Obama's votes is further complicated by a legal dispute between abortion opponents and supporters over the relative meanings of the Illinois legislation and a similar federal law that President Bush signed in 2002. The federal law was unopposed by pro-choice groups, because they did not believe it would have any legal impact on abortion availability, which is generally governed by state law. "There was never any federal abortion law," explains Sutherland. "So when they passed that law, it did not change anything. It was just a statement."

Nonetheless, McCain has argued on the campaign trail that Obama should still be condemned for his state votes, in light of the federal vote. "Congress unanimously passed a federal law to require medical care for babies who survive abortions — living, breathing babies whom Senator Obama described as 'previable,' " McCain said in an August radio address. "This merciful law was called the Born Alive Infants Protection Act. Illinois had a version of the same law, and Obama voted against it."

Like Palin's statements late last week, McCain's radio address was carefully written to avoid outright falsehoods, while effectively misleading voters about the background of Obama's votes. It is true that Obama voted against a state bill that had language similar to a federal law. But the Obama campaign says Obama would not have objected to the federal law if Obama had been in the U.S. Senate at the time.

The campaign also says Obama would not have objected to an amended version of the state's Born Alive legislation, which passed after Obama left the state senate. Like previous proposals, the amended bill declared that any child born alive was a "human person," but it also specifically stated that the legislation should not be construed to "affect existing federal or state law regarding abortion" or "alter generally accepted medical standards," effectively eliminating the concerns of Obama and other abortion supporters like Sutherland that the law could be used a way to limit access to abortion.

Such complexities, however, are easily lost in the rapid-fire sound-bite contest that has predictably come to consume the presidential election. We are left instead with emotionally charged claims that mislead as much as they inform.

It is without dispute that Obama is pro-choice; he has a long record of opposing efforts that might limit legal access to abortion. To suggest, however, that Obama supported the death of children born alive after abortions is misleading. State law in Illinois, which Obama supported, has always protected the life of a child born alive after abortions, if doctors believed the child had a reasonable chance of survival.

(See photos of Sarah Palin on the campaign trail here.)

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