Hadley Arkes on Sen. Ben Sasse, who champions pro-life bills by promising Democrats they won’t affect abortion access, an appeal that fools no one.
In the British comic Review in the 1960s, Beyond the Fringe, a commanding officer in the Royal Air Force sought to persuade a pilot to go on a kamikaze mission. “Smedley,” he said, “we need someone at this moment to make a [Grand] Futile Gesture.”
Senator Ben Sasse of Nebraska has made his career with Grand Futile Gestures, not because his policies have been wanting in merit, but because he has shown little interest in doing the grinding work of a legislator in working out bills in committee and persuading his colleagues.
When he landed in the Senate in 2015, he quickly took hold of the Born-Alive Abortion Survivors Protection Act. That is the sequel to our Born-Alive Infants’ Protection Act (2002), the bill that sought to protect the child who survived an abortion. The new bill would restore the serious penalties that had been stripped from the original Act.
Sasse rushed to be the sponsor of the bill, which would pass by hefty margins in a Republican-controlled House in 2015 and 2018. But Sasse never seemed able to do the work that would bring the bill to the floor of the Senate for a vote. He was finally able to get the bill to the floor in February 2020, when the Democrats had control of the House, and there was no chance of passing it. The bill gathered 56 votes in favor of bringing it to the floor, but under the rules of a filibuster, 60 votes were needed to put the bill on the floor for the decisive vote.
Sasse had made a fine, impassioned speech in favor of the bill, which he knew would be mainly a flying of the flag. His object was just to preserve the awareness of the bill as an ongoing part of our public business. Over the past several years some of us have made attempts to sharpen and improve that bill, but our friends among other senators have been reluctant to make any move without the consent of the sponsor of the bill. And yet that sponsor was not to be found. He was usually elsewhere, giving speeches.
Sasse’s persistence then has been offset by his inattentiveness, but that persistence still deserves praise. He introduced the bill anew on January 26th, with the Republicans no longer in control of the Senate. He was forced, then, to bring the bill forth in the mayhem of the Vote-a-Rama: The Democrats were trying to pass a massive budget as a matter of “budgetary reconciliation,” requiring only a majority vote (no need to get 60).
The occasion triggered a host of amendments on all kinds of subjects, as senators sought to tack their own pet measures on a bill bound to pass. But amendments could be ruled out if they were thought to have only a tenuous connection to the budget. And Sasse’s amendment was indeed ruled out; it could not come to a vote.
Sasse made once again a moving case for the bill. “Infanticide,” he said, “is what the Born-Alive Abortion Survivors Protection Act is actually about. Are we a country that protects babies that are alive, born outside the womb after having survived a botched abortion?”
Sasse put his accent there by appealing to people on the other side that this bill was simply about “protecting babies that have already been born and are outside the womb.” But in making that appeal he went overboard and gave an account of the bill that was at odds with the purpose that had brought forth the bill. And so Sasse found himself insisting to his colleagues that “this bill has nothing to do with abortion itself. Nothing in this bill changes the slightest letter of Roe v. Wade. Nothing touches abortion access in this bill.”
But that appeal to the other side fools no one. The Democrats understand that this modest bill is of course about abortion. The strategy of the first Born-Alive Act in 2002 was to lure people from the other side by showing the reach of that right to abortion, a reach that makes even pro-choicers recoil.
And from there we might start rolling back that practice of abortion step by step. We would ask: What was different about that child five minutes before it was born – or five days, five weeks, five months? The other side understood that their position could come unraveled. On that point they were never fooled, and we had never sought to fool them.
But our deeper purpose was to establish that this matter was not the sole business of the courts. We sought to remind people of the constitutional grounds on which Congress may indeed legislate on this matter and act directly to protect unborn children. We invoked a key line from Chief Justice Marshall in the classic case of Cohens v. Virginia (1822), when he remarked that any question arising under the Constitution and laws of the United States may rightly come within the reach of the judicial branch of the federal government.
And we then asserted the corollary:
If the Supreme Court can articulate new “rights” under the Constitution, the legislative branch must be able to vindicate the same rights under the same Clause in the Constitution where the Court claims to have found them. And in filling out those rights, the Congress, at the same time, may mark their limits. The one thing that should not be tenable under this Constitution is that the Court may articulate new rights – and then assign to itself a monopoly of the legislative power in shaping those rights.
A pro-life Republican Congress will not summon the conviction to legislate directly to protect babies in wombs until the members of Congress understand again that they do, in fact, bear the authority to do precisely that. The score: Ben Sasse fools no one on the other side, while he distracts his colleagues, and even the pro-lifers, from what they need to know in getting on with their work.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
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