Continues to Unravel After Sen. Obama Says NRLC is "Lying"


By Douglas Johnson

NRLC Legislative Director



WASHINGTON (August 18, 2008, Noon) -- Senator Barack Obama's four-year effort to cover up his full role in killing legislation to protect born-alive survivors of abortions continues to unravel.



In the most recent developments, Senator Obama himself, in a videorecorded interview Saturday night with David Brody of CBN News (subsequently broadcast on both CBN and CNN), said three times that National Right to Life was "lying" in asserting that he had voted against a state bill virtually identical to the federal Born-Alive Infants Protection Act. He did not directly address newly uncovered documents that had been released by NRLC on August 11 -- documents that proved that he had done exactly that, contradicting four years of the Obama cover story.



In response, on Sunday, August 17th, we issued a challenge to Obama to either declare the newly discovered documents to be forgeries and call for an investigation of the forgery, or admit that he had misrepresented his record on the live-born infants legislation (not just once, but for four years), and apologize to those he's called liars.



We don't have an apology yet. But now there is this, in a news story posted on the New York Sun website lon the evening of August 17th: "Mr. Obama appeared to misstate his position in the CBN interview on Saturday . . . [Obama's] campaign yesterday acknowledged that he had voted against an identical bill in the state Senate . . ."

http://www.nysun.com/national/obama-facing-attacks-from-all-sides-over-abortion/84059/



Here is a summary of what came before:



In Congress, from 2000-2002, while Barack Obama was still a state senator in Illinois, we here in Washington, D.C., were dealing with the federal Born-Alive Infants Protection Act (BAIPA), a project in which I was deeply involved. The original bill was a simple two-paragraph proposal -- it established in black-letter law that for all federal law purposes, any baby who was entirely expelled from his or her mother, and who showed any of the specified signs of life, was to be regarded as a legal person for however long he or she lived, and that this applied whether or not the birth was the result of an abortion or of spontaneous premature labor. NARAL immediately attacked the bill as an assault on Roe v. Wade: "The Act would effectively grant legal personhood to a pre-viable fetus -- in direct conflict with Roe. . . . In proposing this bill, anti-choice lawmakers are seeking to ascribe rights to fetuses 'at any stage of development,' thereby directly contradicting one of Roe's basic tenets."

See http: http://www.nrlc.org/Federal/Born_Alive_Infants/NARALonlive-born.pdf



Nevertheless, the vast majority of "pro-choice" House members -- including hard-core pro-abortion leaders such as Jerrold Nadler -- were unwilling to extend the principles of Roe to living babies entirely separate from their mothers. They rejected the NARAL claim and voted for the bill; it passed the House 380-15. (Nothing like that had ever happened to NARAL before.) But the bill was killed in the Senate by an objection to unanimous consent.



In 2001, in Illinois, a bill was introduced in the state Senate that was closely patterned on the federal BAIPA, to govern constructions of state law. It contained an additional sentence, which read, "A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law." (We'll call this the "immediate protection clause." It really just repeated the substantive effect of the other paragraphs.)



Obama voted against this bill in committee. On the floor he gave a speech attacking it and a couple of other related bills (the only such speech by any senator). Although the speech was technically made during consideration of another bill, SB 1093, Obama said that his reasons applied to SB 1095 (the BAIPA) as well. He then voted "present." Voting "present" was a tactic recommended by the local Planned Parenthood lobbyist; under an Illinois constitutional provision a bill is deemed passed only if it receives an absolute majority of the sworn members of the House or Senate, so the operative effect of a "present" vote is the same as a "no" vote.


The core of Obama's speech was the same as the 2000 NARAL attack at the federal level -- the bill violated Roe v. Wade because it applied to "a pre-viable fetus." Here is what he said:

"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."


It did not seem to matter to Obama in 2001 (or to NARAL, in 2000) that the "fetuses" (sic) in question were entirely born and alive. Because, you see, they were "pre-viable," and these were abortions.

The 2001 bill passed the Illinois Senate despite Obama's objections, but died in a House committee.

In Illinois, pretty much the same events repeated in 2002, although this time Obama voted "no" on the floor. Meanwhile, in Washington, an additional clause was added to the federal bill, which we call "the neutrality clause." (The "neutrality" clause read, "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.") We saw this clause as no substantive change -- it merely made explicit the original scope of the bill. Nevertheless, with the change, the bill passed without a dissenting vote in either house of Congress, and was signed into law in 2002. (To view the final federal BAIPA as enacted, click here. To view a chronology of events pertaining to the federal BAIPA, click here.)



But in Illinois, Obama kept fighting, now from a chairman's chair. In 2003, the state bill was reintroduced in its original form, but the chief sponsor also introduced "Senate Amendment No. 1," an amendment to remove the "immediate protection clause" and insert the exact language of the new "neutrality clause" from the federal bill. Adoption of "Senate Amendment No. 1" would transform the state bill into a virtual clone of the now-enacted final federal bill/law. Both the bill and the amendment were referred to a committee of which Obama had just become chairman (the Democrats had taken majority control of the Illinois Senate in January, 2003).



On March 12-13, 2003, Obama chaired a meeting of the committee at which Senate Amendment No. 1 was adopted (with his support, 10-0). This transformed the state bill into a virtual clone of the federal bill; see them side-by-side here. Obama then led all of the committee's Democrats in voting to kill the amended bill, and it was killed, 6-4. (We didn't know about this meeting until about two weeks ago.)



The very next year, the cover up began.



When Obama was running for the U.S. Senate in 2004, his Republican opponent criticized him for supporting "infanticide." Obama countered this charge by claiming that he had opposed the state BAIPA because it lacked the pre-birth neutrality clause that had been added to the federal bill. As the Chicago Tribune reported on October 4, 2004, "Obama said that had he been in the U.S. Senate two years ago, he would have voted for the Born-Alive Infants Protection Act, even though he voted against a state version of the proposal. The federal version was approved; the state version was not. . . . The difference between the state and federal versions, Obama explained, was that the state measure lacked the federal language clarifying that the act would not be used to undermine Roe vs. Wade, the 1973 U.S. Supreme Court opinion that legalized abortion."



Obama's explanation was false, but the local newspapers did not uncover the March 13, 2003 records, and they accepted the explanation uncritically. The Obama campaign has been quoting the resulting stories ever since.

During Obama's 2008 run for President, his campaign and his defenders have asserted repeatedly and forcefully that it is a distortion, or even a smear and a lie, to suggest that Obama opposed a state born-alive bill that was the same as the federal bill. See, for example this June 30, 2008 "factcheck" issued by the Obama campaign in the form that it still appeared on the Obama website on August 7, 2008. The Obama "cover story" has often been repeated as fact, or at least without challenge, in major organs of the news media. (Two recent examples: CNN reported on June 30, 2008, "Senator Obama says if he had been in the U.S. Senate in 2002, he, too, would have voted in favor of the Born Alive Infant Protection Act because unlike the Illinois bill, it included language protecting Roe v. Wade." The New York Times reported a story on August 7, 2008 that Obama "said he had opposed the bill because it was poorly drafted and would have threatened the Supreme Court decision in Roe v. Wade that established abortion as a constitutional right. He said he would have voted for a similar bill that passed the United States Senate because it did not have the same constitutional flaw as the Illinois bill.")

On August 11, 2008, we (the National Right to Life Committee) released recently uncovered legislative documents demonstrating that Obama had, in fact, presided over the meeting at which the bill was transformed into a clone of the federal bill, and then voted down. Although these documents contradicted numerous emphatic statements by Obama and his campaign, only some of which are referenced above, so far they have been virtually ignored by mainstream news media.

On or about August 14, the Obama campaign submitted to Eric Zorn of the Chicago Tribune a "defense," which on August 14 was posted on Zorn's blog,, which mostly repeated the old Obama line and which did not specifically reference the documents released by NRLC, but which did contain a new element: a purported side-by-side comparison of the state and federal BAIPAs. The comparison asserted that the "immediate protection clause" was still part of the bill that Obama voted against (it was not -- but why would that clause bother him?), and asserted that the "neutrality clause" was merely a "failed amendment, not included in final legislation" (false - it was adopted 10-0). The posting also contained many diversionary provisions -- references to an entirely different bill, misleading characterizations of an old, loophole-ridden Illinois law, etc..

On August 16, in a short interview with CBN News's David Brody, Obama was asked about the growing controversy surrounding the National Right to Life release. In his response, Obama asserted three times that we were "lying." See it here: http://www.cbn.com/CBNnews/429328.aspx

Late on August 17, the New York Sun posted a story by staff political reporter Russell Berman, which said in part: "Indeed, Mr. Obama appeared to misstate his position in the CBN interview on Saturday when he said the federal version he supported 'was not the bill that was presented at the state level.' His campaign yesterday acknowledged that he had voted against an identical bill in the state Senate . . ."

The campaign then tried to shift to a new objection to the "identical bill" -- that it "could have undermined existing Illinois abortion law." Given the language of the final state bill, this claim is absurd, unless Obama believed that "existing Illinois abortion law" allowed for "abortions" to be carried to a lethal conclusion even after a live birth. The newest line is also not consistent with Obama's oft-stated excuse for opposing the state legislation, and fails to explain his four years of misrepresentation.

Nor does the Sun story indicate that the Obama campaign has issued any apology to NRLC, Bill Bennett, or the others who Senator Obama and his campaign have been calling liars for saying what they now admit was the truth.

How to make sense of all this? All of Obama's misrepresentations and contradictions on this issue have one common goal: to obscure the position he actually articulated and acted on in 2001 through 2003. Obama explained in 2001 that he opposed the state bill to protect born-alive infants because it would apply before the point of long-term survivability -- so-called 'viability.' This is the same objection that NARAL originally voiced to the federal bill, in 2000. But that was exactly the point of the bill -- to make it clear that a live-born baby was a legally protected person for as long as he or she lived, whether for a day, an hour, or a minute.

Neither the original version of the legislation, nor the final state version that Obama killed in 2003, contained any language to protect babies before the point of live birth. On the 2001 and 2002 state bills, Obama took to a position that already had been rejected by the U.S. House 380-15 (in 2000). In 2003, Obama took a position on the abortion-survivor legislation that was more extreme than any member of Congress of either party.

The Obama campaign and its apologists are now asserting that the state Born-Alive Infants Protection bill was part of a "package" of bills. This is an obvious attempt to change the subject and avoid prolonged scrutiny of Obama's record on the sole bill that has been the focus of the national debate, that being the bill that was copied from the federal bill. In 2001-2003, there were various bills in the Illinois Senate that dealt with the procedures to be followed during very late abortions, but those bills each had separate numbers, were each subject to separate amending processes, and were (of course) each voted on separately. The 2003 Illinois Born-Alive Infants Protection bill (SB 1082) could have been passed regardless of what happened to the various abortion bills -- and SB 1082 would have passed the Illinois Senate in 2003, if Chairman Obama had not killed it in his committee.

The Obama of 2001-2003 really did object to a bill merely because it defended the proposition, "A live child born as a result of an abortion shall be fully recognized as a human person and accorded immediate protection under the law." And it is that reality that he now desperately wants to conceal from the eyes of the public.

Additional Resources:

Index of Documents Regarding Obama Cover-up on Born-Alive Abortion Survivors Bill (will be updated as new items come in)

"Obama Cover-up Revealed On Born-Alive Abortion Survivors Bill" (August 11, 2008 NRLC release of newly discovered legislative documents)

Timeline of important events in the history of the federal Born-Alive Infants Protection Act

NRLC archive on the federal Born-Alive Infants Protection Act

NARAL press release, July 20, 2000, expressing strong opposition to the original federal Born-Alive Infants Protection Act (H.R. 4292).

The official report of the Judiciary Committee of the U.S. House of Representatives, explaining the intent of the federal Born-Alive Infants Protection Act (H.R. 2175), and explaining why such legislation was necessary (August 2, 2001)