Mixed Messages

When Pastor Rick Warren asked Barack Obama, "At what point does a baby get human rights?" Sen. Obama hesitated and answered, "Well, you know, I think that whether you're looking at it from a theological perspective or a scientific perspective, answering that question with specificity, you know, is above my pay grade."

Once upon a time, as an Illinois state Senator, answering that question was well within his pay grade.

In 2001 and 2002, then-state Senator Obama vigorously opposed a bill which defined very specifically when babies get human rights. The Born Alive Infant Protection Act (BAIPA), both the federal and Illinois versions, conveyed legal personhood to infants who accidentally survived an abortion. As if to answer Pastor Warren's question long before it was asked, Obama provided the rationale for his position in a 2001 speech on the Illinois Senate floor:

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.

In this speech, which he has not repudiated, Obama argued that an abortion is not complete even if the infant abortion survivor shows signs of life but is "previable;" that is, it cannot survive long outside the womb. To my knowledge, the youngest baby to survive following a premature birth was 21 weeks into gestation. However, not all infants could survive at that age and it is unlikely at present that younger infants could live long. Prior to BAIPA, the legal status of these babies was in question. Rephrasing Rev. Warren's question, Do babies fully born but of questionable viability "get human rights?" Obama said such infants are not eligible.

Presumably, this answer would not have played well at the Saddleback Forum. Instead, Senator Obama said he didn't know when a baby gets rights. However, in 2001, the Obama Doctrine was that a baby, even if born alive, doesn't get human rights if it is deemed to be "previable."

Obama opposed BAIPA again in 2002 and, a third time, in 2003, as a committee chair, prevented the bill from a vote by the full Illinois Senate. However, after Obama left the Illinois Senate, BAIPA passed unanimously, 52-0.

This issue remains on the national radar because Obama has sent mixed messages about his views on born-alive infants. During the 2004 Senate campaign and then as recently as August 16, Obama claimed he would have voted for a federal BAIPA had he been a senator when the bill was enacted into law in 2002, where it was also approved unanimously by the U.S. Senate. His rationale for supporting the federal bill while opposing the state bill is that the two bills were worded differently. However, this is not accurate, according to Factcheck.org, an independent group affiliated with the University of Pennsylvania, and according to a close examination of the two bills. On August 25, 2008, FactCheck.org concluded, "Obama's claim is wrong. In fact, by the time the HHS Committee [Obama's Senate committee] voted on the bill, it did contain language identical to the federal act."

Just prior to the Factcheck.org report, the Obama campaign acknowledged that the federal and state bills were the same but that Senator Obama opposed the state bill because the state bill would have violated existing Illinois law regarding abortion. That claim is improbable since Obama's objections, as stated in his 2001 speech, were about rights afforded by BAIPA to "previable" but fully born infants, and not in conflict with any existing Illinois abortion law. The campaign has not disclosed which law Obama was worried about nor answered my requests for this information.

Thus, according to his words, which he has never disavowed, Senator Obama already answered Rick Warren's question.

Warren Throckmorton, PhD is an associate professor of psychology at Grove City College and fellow for psychology and public policy with the Center for Vision & Values. He can be reached via his blog, http://www.wthrockmorton.com/.