In the final presidential debate, Senator John McCain repeated long debunked lies about Sen. Barack Obama’s record on the Illinois Born Alive Protection Act, lies that heve been repreated and promoted since Alan Keyes lost to Obama in the US Seante race in 2004. This full frontal effort may appeal to the extreme far-right of his base, but it was a dial test loser on CNN. Americans are fed up with the far-right’s Culture War. The CBS insta-poll shows Obama winning the debate 53 percent to 22 percent with 24 percent saying is was a draw.

The extreme fringe of anti-choice community has been pushing this attack for months, in television and radio ads from 527s and special interest lobbyists like the National Right to Life Committee.

The coordinated efforts are suggest that in voting against the Illinois Born Alive Infant Protection Act Senator Barack Obama is "responsible for killing a bill to provide care and protection for babies who are born alive after abortions" and that "he later misrepresented the bill’s content." NRLC has filed a request for an advisory opinion from the FEC as to whether the ad falls within FEC guidelines, TPM reported.

The anti-choice movement says it needs to correct the record. The Obama campaign maintains that the Senator opposed the state bill but would have supported the federal version because the federal bill, unlike the state bill, couldn’t have affected or undermined existing abortion law. In an interview with the Christian Broadcasting Network’s David Brody, Obama said of National Right to Life Committee (NRLC), "here’s a situation where folks are lying." Then in August, NRLC produced documentation showing that the 2003 version of the Born Alive bill included an amendment protecting Roe, rendering the state bill virtually identical to the federal bill, which Obama says he would have supported.

But, points out the non-partisan, independent FactCheck.org, since state, not federal law, governs the actual practice of abortion care, even with the stipulation that the bill does not provide protections to "any member of the species homo sapiens at any point prior to being born alive as defined in this Section," the bill could still have been used to interfere with abortion provisions. A 2003 Planned Parenthood fact sheet explained:

SB 1082 & SB 1083 are NOT the same as the so-called "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.

Also unlike the federal bill, the package of bills under consideration by the Illinois State Senate included a measure that would have permitted legal action "on the child’s behalf." In other words, doctors and health care facilities could be held liable for damages, "including costs of care to preserve and protect the life, health and safety of the child, punitive damages, and costs and attorney’s fees," if the hospital, health care facility or health care provider "harms or neglects the child or fails to provide medical care to the child after the child’s birth."

Planned Parenthood’s Pam Sutherland told the New York Times, "I can tell you the sponsors always wanted the entire package of bills, which were introduced together and analyzed together…They never wanted them separated, because they wanted to make sure that physicians would be chilled into not performing abortions for fear of going to jail" (emphasis mine).

When a 2005 version of the bill with the explicit protection for state abortion law Obama had held out for was considered, it passed the state Senate unanimously. Obama had left the State Senate for Washington by the time the bill came to a vote. But Obama campaign spokesman Tommy Vietor has said that Obama would have voted for that bill if he had been a state legislator when it was considered, much as he says he would have supported the federal bill, which wouldn’t have impacted non-existent federal law.

Existing Law Protected Infants

Pam Sutherland of Planned Parenthood of Illinois explains that there is no way to verify how many, if any, abortions result in viable live births, as Illinois does not track these statistics. Still, regardless of the number of such births, these infants deserve to be protected.

But existing law in Illinois clearly required doctors to provide medical care in the unlikely event that a viable fetus was born as a result of an abortion procedure. "Nothing in BAIPA addressed this situation in some way that wasn’t already covered," explains
Mary Dixon, legislative director at the ACLU of Illinois. In any such instance, Illinois law stipulates that the child receive medical care by pediatric specialist to maximize chances of survival.

Obama acknowledged this when registering his opposition to BAIPA.
To the state Senate on April 4, 2002, Obama explained, "This issue
ultimately is about abortion and not live births. Because if there are children being born alive, I, at least, have confidence that a doctor who is in that room is going to make sure that they’re looked after."

In addition, BAIPA was riddled with provisions that alarmed both defenders of abortion rights and the mainstream medical community in Illinois, including the Illinois Hospital Association and the Illinois State Medical Society, both of which opposed the package of bills. Defenders of abortion rights said that the state law could come into
conflict with existing law regulating abortion, and could potentially be used to undermine or challenge Roe v. Wade. Hospitals and physicians’ associations, meanwhile, decried the bill’s interference with
the physician-patient relationship and the harsh civil and criminal penalties that could be imposed on physicians and hospitals who perform abortions that result in a "live-born" fetus.

Equally troubling is the fact that the law Obama opposed would have required doctors to make efforts at life-saving for any infant that shows a "sign of life" even when there was no chance the baby would survive, a practice that Dr. Lauren Streicher, an obstetrician at Northwestern Medical Hospital who often delivers pre-term babies who will not survive, refers to as "torture." "When you deliver a baby" – either through labor or termination – "that is clearly not going to be viable, we knew 100 percent it would not survive, there are two courses you could take," explains Streicher. "You could wrap the baby up in a blanket, give him or her comfort care, let the parents hold the baby, say goodbye, and go through the grieving process. Or, if we were required to make survival efforts, the baby is whisked away by the high-risk pediatrician and tubes start going in. It’s torture for the baby, terrible for the parents, who have most often lost a desperately desired pregnancy."

Says Dr. Streicher, "A fetus that can clearly be ‘not viable’ could potentially be born with a stable heart-beat. Is that a sign of life? Yes. Is that fetus then viable? No."

Campaigns Volley BAIPA Ads

Obama’s votes on the Born Alive Infant Protection Act have been subject to attack ads dating as far back as his race for the U.S. Senate against Alan Keyes in 2004. Current television ads targeting voters in Ohio and New Mexico feature thirty-one-year-old Gianna Jessen imploring Barack Obama, "Sen. Obama, please support born alive infant protections." Jessen’s story? She was born through a "failed abortion," and she and BornAliveTruth.org, the 527 "independent" political committee responsible for the ads, maintain that by voting against BAIPA, Obama neglected to support the highest possible standard of care for infants in Illinois.

Beliefnet.com editor-in-chief Steven Waldman observes, "the one thing [the ad] does not prove is its central political claim…the key legal goal [of the Born Alive Infant Protection Act] was not protecting viable infants – who already were protected under law – but non-viable infants and those on the borderline. Gianna Jessen, by her own account, was a clear ‘viable’ infant. She was aborted at seven and half months, and therefore would have almost certainly been covered by any existing statute."

BornAliveTruth was founded by Jill Stanek, the anti-choice blogger and a nurse who testified in front of Congress that she witnessed infants not provided appropriate medical care after abortion (Stanek’s testimony does not specify whether the infants were viable). The ads are bank-rolled by abstinence-only profiteer Raymond Ruddy, who has supported far-right anti-choice and anti-gay initiatives across the country, and whose company, Maximus, has received over $100 million in federal contracts from the Bush administration to promote abstinence-only-until-marriage programs.

Obama, for his part, has responded directly to BornAliveTruth’s ads. The ad, which began airing September 21, tells viewers, "Now votes taken out of context, accusing Obama of letting infants die? It’s a despicable lie." FactCheck.org has weighed in with a clear-eyed assessment of the volley, writing that:

In the ad, Jessen says that "if Senator Obama had his way, I wouldn’t be here." She’s wrong. Anyone born in Illinois under the same circumstances as Jessen (who was actually born in California) would have been protected under the state’s law as it stood, with or without the legislation that Obama opposed.

But FactCheck.org also points out that Obama’s response included misstatements. Obama’s ad implies that the McCain campaign itself had sponsored the ad, when BornAliveTruth.org did; it also accuses McCain of opposing abortion including in cases of rape and incest, which running mate Sarah Palin does but McCain doesn’t.

Will Palin Bring Up BAIPA?

GOP Vice-Presidential nominee Sarah Palin suggested that Obama hasn’t heard the end of BAIPA from her, either. In an interview with Katie Couric, Palin suggested that passage of BAIPA was necessary to ensure the provision of life-saving medical care to viable babies and, moreover, that Obama would allow medical help not to be administered in such situations. "And those who, like Barack Obama, would support measures that would actually allow in a botched abortion, late-term abortion, that child being born alive, to allow it to not receive medical help to save that child’s life," said Palin, "That’s extremism to me." If Palin throws another punch at Obama on BAIPA to stoke her religious right base, and if the FEC okays the National Right to Life Committee’s radio ads, we’ll undoubtedly see a new round of distortion over what BAIPA would actually do, and what Obama supports and believes.

Written by Emily Douglas for RH Reality Check – News, commentary and information for reproductive health and women’s rights.