David Freddoso says he can’t see how Obama can spin his way out of this now that his own team’s admitted he lied about it to David Brody. I can think of a way: Drag the issue so deep into the weeds of Illinois’s state legislative history that no one but the most dogged Obama critic will pursue the matter once his eyes have glazed over from trying to keep track of the various pemutations of the bill. To recap, Obama initially said he voted against the 2003 bill protecting born-alive aborted fetuses only because it would have threatened abortion rights due to its lack of a “neutrality” clause vis-a-vis Roe v. Wade. Minor problem: The bill did include that clause and State Sen. Obama was one of the committee members who made sure that it did — before he voted against it anyway. Meanwhile, the bill he voted against was identical to a bill that passed 98-0 in Congress which he claims he would have voted for if he had been a U.S. Senator at the time. How to reconcile the two positions? Simple: Since there are no federal abortion laws, the federal bill was essentially a symbolic gesture, whereas there are of course state abortion laws in Illinois that could have been affected by the state bill. Which is to say, he was prepared to take a stand on the issue if he knew that his stand would have … no practical consequences whatsoever.
As for what terrible effect, precisely, the state bill would have had on those state abortion laws, it’s not clear. Here’s the money passage from Obama’s own fact sheet:
2003 BORN ALIVE LEGISLATION OBAMA OPPOSED IN COMMITTEE DID NOT HAVE THE SAME IMPACT AS FEDERAL LEGISLATION
Planned Parenthood: “Although The Definition Is Similar To The Proposed Federal Legislation, Its Application Would Have A Different Impact On State Abortion Law.” Planned Parenthood wrote in a fact sheet, “SB 1082 & SB 1083 are NOT the same as the socalled “Born Alive Infant Protection Act” which was recently passed in the U.S. House. The federal legislation is considered to be a restatement of existing federal law. It does not amend or change current Illinois law. Federal law does not regulate abortion practice. That is left to the states. Therefore, it is state legislation that would affect abortion practice in Illinois. The package of SB 1082 & SB 1083 creates new provisions in Illinois law. Although the definition is similar to the proposed federal legislation, its application would have a different impact on state abortion law.” [Planned Parenthood Fact Sheet, 2/28/03]
Illinois State Medical Society Opposed SB 1082. Robert Kane, legal counsel to the Illinois State Medical Society, filed a committee witness slip stating the Medical Society opposition to Senate Bill 1082. [Committee Witness Slip, SB 1082]
So the 2003 bill would have done something “new” and “different” to existing law — notwithstanding the neutrality clause that would have prevented any erosion of constitutional abortion rights — but this doesn’t say what, specifically. Read the fact sheet and you’ll see that the 2005 bill that eventually did pass (after Obama left the legislature) apparently included an extra clause specifying that it wouldn’t affect any other state abortion statutes. Is that why Obama voted against the 2003 version, because it lacked a second “neutrality” clause with respect to state laws? If so, then (a) how come he didn’t push to add it when he added the first neutrality clause in his committee meeting, and (b) how come he didn’t mention that to David Brody, opting instead to claim — incorrectly — that the bill was “trying to undermine Roe v. Wade”? Adding to the nuance here is the campaign’s alternative argument, that the 2003 bill actually wasn’t important because it was already the law in Illinois for doctors to try to save born-alive fetuses. (See the end of the fact sheet.) How are we supposed to square that with the point about radically “new” and “different” provisions? Either the bill would have done something or it would have done nothing; Team Barry appears to be arguing that it would have done both. And incidentally, according to Freddoso, it’s not true that Illinois law already clearly governed born-alive situations. If it did, why did the AG conclude in 2000 that there was “no basis for legal action” against a hospital where fetuses were being left to die? As Freddoso says, it’s precisely because Illinois law was insufficient at the time that the legislature was debating a new bill to begin with.
Eyes glazed over yet? Then it’s on to the new new spin: It’s “deeply offensive and insulting” to smear the father of two young children with lies about infanticide, even though the only person who we’re sure has lied thus far in all of this is Obama himself. The media, shockngly, appears to have no interest in this story, so unless FactCheck jumps in it looks like it’ll remain a partisan he said/he said that the public can safely tune out as background noise. Ah well.
Update: Actually, it’s not fair to say that they’re arguing the bill would have done something and would have done nothing. They’re arguing that it would have done something bad and, as such, it was okay to vote against it secure in the knowledge that Illinois law already provided guidance for doctors on this subject. Except that, per Freddoso’s post about the AG, it didn’t really provide guidance, and they’re being awfully coy about the particulars of what that something bad might be.
Update: Ramesh Ponnuru is all over this, too:
Illinois law has rules — loophole-ridden rules, but rules — requiring treatment of babies who have “sustainable survivability.” If an attempted abortion of a pre-viable fetus results in a live birth, the law did not protect the infant. Nurse Jill Stanek said that at her hospital “abortions” were repeatedly performed by inducing the live birth of a pre-viable fetus and then leaving it to die. When she made her report, the attorney general said that no law had been broken. That’s why legislators proposed a bill to fill the gap.
Obama did not want the gap filled. He did not want pre-viable fetuses/infants to have any legal protection. In the Illinois legislature, he argued that providing them with legal protection would both be unconstitutional in itself — a violation of the Supreme Court’s abortion jurisprudence — and undermine the right to abortion.