From the September, 2003 issue of Touchstone

Infants & Civil Rights by Robert P. George

Infants & Civil Rights

Robert P. George on the Born-Alive Infants Protection Act

Testimony of Robert P. George before the Subcommittee on the Constitution of the Committee on the Judiciary, United States House of Representatives, at the hearing on H.R. 4292, the Born-Alive Infants Protection Act, July 20, 2000.

My name is Robert P. George. I am McCormick Professor of Jurisprudence in the Department of Politics at Princeton University. At Princeton, I teach courses in constitutional interpretation, civil liberties, and philosophy of law. I am the author or editor of several books in the field of moral and political philosophy. I have published numerous articles and review essays in journals of law, philosophy, and political science. From 1993 to 1998, I served on the United States Commission on Civil Rights, and in that capacity I previously had the honor of testifying before this Committee.

My basic philosophy of civil rights is simple. It is the philosophy of the Declaration of Independence and, I believe, the Constitution of the United States. At its core is the self-evident principle that all human beings are created equal. Each member of the human family, as a unique and irreplaceable child of God, is endowed with inestimable and equal worth and dignity. We human beings may be unlike each other (or, if you will, “unequal”) in various respects—some are endowed with greater, some with lesser, intelligence, ability, physical strength and vigor, etc.—but none of these factors vitiates the fundamental sense in which we are truly “created equal” and entitled as a matter of right to “the equal protection of the laws.” Of course, any of us, by the wrongful exercise of his or her freedom, may forfeit liberty and certain other rights. But none of us exists at the pleasure of others or merely to serve their interests or fulfill their desires. There are no natural slaves or masters. No human being is the mere property of anyone else, or disposable at others’ whims.

Our most basic rights—including the right to life—are inherent and in no way contingent on a grant from the state or any other merely human source. As an inherent right, the right to life, which, properly specified, is a right not to be killed either as an end in itself or a means to any other end, comes into being for us when we come into being. It is not a privilege that we earn by achieving a certain level of consciousness or intelligence or other ability; it is not something that comes or goes with age, size, stage of development, or condition of disability or dependency; it is certainly not something that depends on whether someone else happens to “want” us or would prefer, all things considered, that we not exist.

If my philosophy of civil rights were uncontroversial, there would be no need for me and the other witnesses to be here today or for you to trouble yourselves with this hearing. Infanticide would be unthinkable. Even those who believe in abortion, as I do not, would draw the line at birth, if not before, on the ground that the physical separation of mother and child eliminates any concern that protecting the life of the child would violate the rights of her mother. But today the philosophy of civil rights I hold is far from undisputed. Infanticide is openly defended and even put forward as itself a right. Indeed, in the academy the intellectual groundwork is already in place to extend the right to abortion into the post-natal phase.

In an article entitled “Killing Babies Isn’t Always Wrong” (The Spectator, 16 September 1995, pp. 20–22), Professor Peter Singer, who has since become my colleague at Princeton, where he is DeCamp Professor of Bioethics in the University Center for Human Values, made the following proposal: “Perhaps, like the ancient Greeks, we should have a ceremony a month after birth, at which the infant is admitted to the community. Before that time, infants would not be recognized as having the same right to life as older people.”

Now, I understand that Professor Singer has since backed away from the proposed ceremony, but he has not altered his view that we should do away in law and ethics with the principle at the core of traditional concepts of human rights and equality, namely, that it is always wrong intentionally to kill innocent human beings; nor has he abandoned his claim that newborn human beings are not “persons” with a right to life that must be respected and protected by law. He continues to insist that human beings only become “persons,” and acquire a right to life, sometime well after birth. He denies that we are “created equal” and affirms a concept which, frankly, makes me shudder: that [there is] a class of human beings, including newborn infants, who are, in effect, nonpersons.

Is Professor Singer alone in these beliefs or in their public advocacy? Far from it. In fact, his position isn’t even new. Something very much like it was articulated in a mainstream philosophical journal as early as 1972 by philosopher Michael Tooley (“Abortion and Infanticide,” Philosophy and Public Affairs, vol. 2). Writing even before legal prohibitions of abortion were swept away by the Supreme Court’s decisions in Roe v. Wade and Doe v. Bolton, Professor Tooley bluntly declared that human fetuses and infants “do not have a right to life.” Only “persons” have a right to life, and fetuses and infants are not, he insisted, “persons.” Like Singer, Tooley expressed no doubt that infants (or, for that matter, fetuses) are human beings. He acknowledged, as does Singer, the plain fact that from the beginning of our lives—well before birth—we are distinct, whole, living members of the species Homo sapiens. But, he insisted, we do not become “persons”—we do not acquire the right to life—until well after we are born. According to Professor Tooley, a human being (or other organism) “possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity.” Infants do not qualify.

Here in Washington, D.C., American University philosophy professor Jeffrey Reiman, while expressly declining “to settle the issue about the moral status of infanticide,” also claims that infants are not “persons” with a right to life (Critical Moral Liberalism: Theory and Practice [Lanham, Maryland: Rowman and Littlefield, 1997], ch. 8, “Abortion and Infanticide”). While he offers some reasons why people might nevertheless think it generally wrong to kill newborn babies, he promoted the view that infants, unlike more mature human beings, do not “possess in their own right a property that makes it wrong to kill them.” He denies that infants are members of the community who share equal worth, dignity, and rights, and explicitly holds that “there will be permissible exceptions to the rule against killing infants that will not apply to the rule against killing adults and children.”

I could go on with examples. For now, though, suffice it to say that people who wish to destroy an “unwanted” child have today in the academy—here in the United States—influential scholars who are willing to say that the baby they seek to have killed is not, in fact, a “person” with an equal right to life. Some of these scholars promote the idea that killing an infant at the request of its parent—presumably a father as well as a mother in view of the fact that the physical separation of the child from the mother seems to confer on a father an equal right to command the death of the child—is morally acceptable and ought to be legally permitted.

The legitimization of infanticide constitutes a grave threat to the principle of human equality at the heart of American civil rights ideals. If weak and vulnerable members of the human family—and infants are surely among the weakest and most vulnerable—can be defined out of the community of “persons” whose fundamental rights must be respected and protected by law, the constitutional principle of equal protection becomes a sham. We must begin now putting into place bulwarks against this threat. I therefore respectfully urge passage of H.R. 4292, the Born-Alive Infants Protection Act.

An Act to Protect Infants Who Are Born Alive

107th Congress, 2d Session H.R. 2175

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. Short Title.

This Act may be cited as the “Born-Alive Infants Protection Act of 2001”.

Sec. 2. Definition of Born-Alive Infant.

(a) In General.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

“§ 8. ‘Person’, ‘human being’, ‘child’, and ‘individual’ as including born-alive infant

“(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words ‘person’, ‘human being’, ‘child’, and ‘individual’, shall include every infant member of the species homo sapiens who is born alive at any stage of development.

“(b) As used in this section, the term ‘born alive’, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

“(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being ‘born alive’ as defined in this section.”.

(b) Clerical Amendment.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by adding at the end the following new item:

“8. ‘Person’, ‘human being’, ‘child’, and ‘individual’ as including born-alive infant.”.

Passed the House of Representatives March 12, 2002.

Note: H.R. 4292 passed the House on September 26, 2000, but was killed in the Senate later that fall. The bill was reintroduced on June 14, 2001, as H.R. 2175. It passed the House on March 12, 2002, passed the Senate the following July 18, and was signed into law by President Bush on August 5, 2002.

Robert P. George , a Roman Catholic, is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. His books include In Defense of Natural Law (Oxford University Press) and The Clash of Orthodoxies (ISI Books). He is a Senior Editor of Touchstone.

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