ADF Alliance Alert

Law professor Sherry Colb posts another abortion apologetic in her regular column at Findlaw.com, but this time her research is woefully inadequate.

Colb attempts to defend Senator Barack Obama for opposing Illinois bills that would have protected babies born alive during abortions. Obama’s PR spin on this issue has been to say he supports a similar federal law but not the Illinois version, even though the two bills are almost identical.

The crux of Colb’s eerily similar defense is that the Illinois bill is significantly different from the federal law. Primarily, she claims that “the Illinois law does not define its terms. . . , for example, at what point during the process of birth the infant can be said to have been ‘born alive.’”

But this contains a crucial omission that invalidates her argument.  A simple internet search shows that bills were nearly identical to the federal law.  So why the discrepancy?  There was not merely one Illinois bill protecting born alive infants.  They were broken into parts, and introduced in both 2002 and 2003.  Infant protection was addressed in one part, while liability and other issues were addressed elsewhere. 

Colb only discusses the liability bill, and only from 2002.  But Obama opposed the infant protection bills in both years.  And on page one of each year’s infant protection bill, “born alive” was defined exactly the same as in the federal law.  Colb wanders on for paragraphs, hand-wringing about why the Illinois bill that Obama opposed really is different from the federal version, and that he was not really supporting infanticide. Those arguments completely ignore the companion bills, that Obama opposed, defining born alive and mirroring the federal law.

Omitting mention of the bills defining born alive is in no way justifiable. Colb prefaces her article with the following setup:

“Across the blogosphere, right-wing commentators have been accusing Barack Obama of defending infanticide. In support of this claim, they cite Obama’s opposition . . . to a 2002 proposed law . . . . Critics have compared the Illinois Liability Act to the federal ‘Born Alive Infants Protection Act.’”

Colb even accuses “Obama’s critics” of underhanded tactics, saying that they are “missing (or perhaps disregarding)” the difference between the bills.  Yet she omits mention of the bills defining born alive which were not different than the federal ban. Pot, meet kettle.

Any competent law review editor would insist that this be changed or supplemented. “They” (the “right wing” commentators) do not merely cite the 2002 liability law to criticize Obama–“they” cite the infant protection laws, precisely because they are identical to the federal bill. Scholarly standards do not allow you to defend someone against criticism for opposing bill A, on the basis that it is different than bill B, when bill C is the same as bill B and was also opposed, and bill C is just as important as bill A to the dispute. Discussing bill C severely undercuts the defense, and for that reason it cannot be omitted in this context.

Colb, who is openly an abortion advocate, nevertheless says she is trying to write about the topic in a fair manner. If that’s really her stance, she and Findlaw will issue an immediate retraction.