Another response to Doug Kmiec

Let me return for a moment to Doug Kmiec’s book on Barack Obama, Can a Catholic Support Him?, and to these sentences in particular, supporting Obama’s repeated votes against the Illinois “Born Alive” Act: 

So what does the "Born Alive" Act do? Largely, it redefines what it means to be "born alive." From the time of ancient common law, "born alive" has meant live birth at or near the end of a full term pregnancy with a reasonable prospect of survival. If a woman sadly miscarries earlier and expels a non-viable, but temporarily alive, but unborn child with a transient heartbeat, there isn't a county recorder in the country who would record a live birth. The miscarriage is sad enough; we don't worsen it with the grief of death before life has meaningfully taken hold. But that's what the "Born Alive" Act does. For the most part, it redefines live birth to include non-viable unborn who lack any meaningful chance of survival.

Rob Vischer and Rick Garnett responded on this blog with admirable philosophical and historical critiques.  But what strikes me as most bizarre in Doug's statement is that, in point of fact, for an infant to be considered “born alive” does not require that it have reached any particular stage of gestation. Here’s the Illinois vital records statute, which is the one relevant to Obama’s votes and which also happens to be fairly typical:

"Live birth" means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which after such separation breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. § 410 ILCS 535/1(5) (Emphasis added.)

(See also the analyses found in Clarke Forsythe’s 1987 article on the “born alive “ rule in criminal law, 21 Valparaiso University Law Review 563 (1987), and in Joe Dellapenna’s  mammoth tome  on the history of abortion. Hadley Arkes' book on Natural Rights is also helpful here.) Indeed, it was precisely because the “Born Alive” Act did little more than recodify accepted practice that it was passed unanimously at the federal level and (eventually, after Obama had left) even in Illinois. (I understand that the law’s main purpose, or causal impetus at least, was to stop devations from this accepted practice, through intentional neglect of children aborted whole and alive near the nebulous border of viability, as uncovered by nurse Jill Stanek.)

Given the Illinois statute, why on earth would a careful scholar like Doug make such a strange and absolute empirical claim? I don’t understand.