It is rare that U.S. Senators come apart on the floor of the Senate under questioning from one of their colleagues, but Senator Barbara Boxer did that on October 20, during the debate on partial-birth abortions, and there was nothing random in the spectacle. Her frustration sprung from the flaws that ran through the defense of these grisly abortions, and the questions, posed by Senator Rick Santorum, R-Pa., proceeded, earnestly, from the design of the argument.
Senator Santorum was raising the question of how Senator Boxer would defend a so-called "abortion" at the very point of birth, with about 70 percent of the child's body out of the birth canal. As the "procedure" continues, the skull of the child is punctured so that the body can be removed, so to speak, intact. Santorum asked, What if the child had been reversed in the womb so that it came out head first, and only the foot, or a toe, was left in the womb? No one, by this point, is professing to doubt that the child is human, or that the killing of the child is necessary for the health of the mother. Santorum was asking then, Was it an abortion and therefore a legitimate killing only because a part of the child was still in the birth canal?
To that, Boxer replied, "Absolutely not." In that event, Santorum asked the apt, follow-up question as to why it should make a difference if it is the head remaining in the birth canal, at the time of birth, rather than the toe? Yet, that question inflamed Senator Boxer. Instead of answering it, she accused Santorum of trying to "bait" her. "I agree with the Roe v. Wade decision," she said, "and what you [Santorum and his colleagues] are doing goes against it and will harm the women of this country."
Santorum moved then to a ground even simpler, to raise the same elementary question: Boxer and her friends would cast the protections of the law over children; and so presumably they are opposed to infanticide. Santorum then asked, when would those protections of the law begin?:
MR. SANTORUM. ...I would like to ask you this question. You agree, once the child is born, separated from the mother, that that child is protected by the Constitution and cannot be killed. Do you agree with that?
To that question, Senator Boxer responded:
MRS. BOXER ... I think when you bring your baby home, when your baby is born...the baby belongs to your family and has rights.
Senator Boxer slipped into a candor that is rarely expressed as she made explicit the premises behind abortion rights: Namely, that human beings, as human beings, have no inherent rights; they are assigned those rights by their families if the families are willing to confer them. But even for the defenders of abortion rights, it was too jarring to say that a born baby could be killed legitimately up to the time when the family took the baby home. If Boxer meant that, the right to abortion was in fact the right to infanticide. And so Santorum persisted:
MR. SANTORUM: …Obviously, you don't mean they have to take the baby out of the hospital for it to be protected by the Constitution. Once the baby is separated from the mother, you would agree completely separated from the mother you would agree that baby is entitled to constitutional protection?
MRS. BOXER. I don't want to engage in this. You had the same conversation with a colleague of mine, and I never saw such a twisting of his remarks.
Senator Boxer treated it as a matter of insolence that Senator Santorum should ask the most elementary question of all, which runs back to the core of the argument over abortion: what is the earliest moment at which the child can be protected by the law? If it is not when the child is separated from the mother, then when? Or is it that the right to an abortion as some commentators have suggested is the right to an "effective abortion" or a dead child?
What onlookers might not have realized was that this question, posed by Santorum, did not come tripping out by accident. Just a year ago, his staff had prepared a draft of a measure that would test precisely the point that he posed in the question to Barbara Boxer. Santorum had been on the threshold of introducing what still stands as the "most modest first step" of all on abortion: the proposal simply to protect the child who survives the abortion. At that moment, the interests of the child are separated entirely from the interests of the mother. The only thing at issue then is whether, in fact, the right to an abortion entails the right to kill the child even when it is not necessary any longer to ending the pregnancy.
To put that question alone was the purpose of the bill that Santorum had come to the threshold of introducing, and Barbara Boxer's hysterical response to that simple question should confirm now the deep utility of forcing that question. Clearly, Boxer does not want to face the question clearly, it unnerved her and inspired a frantic effort to get off the floor without addressing it. For as modest as that question would be, a bill forcing the issue would establish these critical premises, which could unravel the whole apparatus built upon Roe v. Wade:
(1) The right of a child to receive the protections of the law cannot pivot on the question of whether anyone "wants" her.
(2) If that is correct, then the child must constitute a real entity, in the eyes of the law, a being whose injuries "count," or have standing.
(3) If the Supreme Court can articulate new rights under the Constitution (such as the right to abortion), the legislative branch must have the authority to fill out those same rights, and in filling them out, marking their limits. The one notion that should be plainly incompatible with the principles of the separation of powers is that the Court may articulate new rights and then assign to itself a monopoly of the legislative power in defining those rights.
If the courts and the Democrats deny those first two points, they would be obliged to tell us just what the ground is on which the law claims to protect the newborn child. Or, if they would deny that the law can protect the child born alive, they would have to say now even more explicitly what the federal courts have been suggesting in the cases on partial birth abortion: that it is no longer legitimate to bar infanticide if that stance of the law would inhibit abortions. Over the past year, there have been several cases of children who survived abortions, but the reactions of Barbara Boxer confirm yet again that the importance of the bill moves well beyond the number of cases.
Santorum was persuaded by the leadership in the Senate to hold back last year at this time, rather than distract attention from the bill on partial-birth abortion. And yet, it should be clear by now that this simpler bill would have helped to prepare the ground, or the premises, that support the bill on partial-birth abortion. For it would have compelled the Barbara Boxers to declare themselves on the point they still wish to evade: whether there is a real child or entity there with a right to the protection of the law. It would appear now that the bill on partial-birth abortion will be vetoed again by President Clinton. And so, too, may be Congressman Lindsey Graham's bill on "the unborn victims of violence," a bill that simply covers unborn children who are injured in the course of crimes that are already covered by federal law. If both bills are vetoed, Santorum and Graham should resume the collaboration of their staffs on the bill to protect the survivors of abortion.
Their colleague, Joseph Lieberman of Connecticut, has been wringing his hands for a long while, professing his desire to cast a vote to protect unborn children at some point. He deserves to have this question put to him: "If you couldn't vote with us, Joe, when the baby was 70 percent 'out,' can you vote with us now, when the baby is '100 percent' out?"
But the marker that should tell all is Barbara Boxer. Her reaction reveals, powerfully, that the "pro-choice" contingent in both parties cannot face directly the simplest question that stands at the root of the issue; that the very posing of the question produces, on their part, anger and incoherence. What more signs are needed? Bring that draft out of the files and press it now.