Ever since Brit Hume receded from his role in anchoring the Fox evening news, there has been no anchorman more finely suited to this vocation than his apt successor, Bret Baier. Baier ascended in the best way, from a substantive mission as a journalist in covering the Pentagon. He has not been a flighty generalist, tripping lightly over a wide range, but a man who is not loathe to read seriously and to probe for “sources.” He is not merely a “reader” of the news, but a seasoned reporter who tries to get a command of the subjects he addresses. Beyond that, he has detached himself from the versions of political correctness that pervade most of the media. He is able to deal honestly with political men and women on the Left, and to ask the questions that pierce to the root for politicians across the spectrum. In short, I have become one of his committed fans.
And yet there is one subject—quite central to our politics and law—in which he has revealed himself to be either uninformed or unaccountably silent in asking the questions that do touch the core of the matter and convey to the public the things that truly count as “news.” The facts that make up the story may convey their import as they are simply unfolded, and they will come as a surprise to most people because they have never been treated as fit to be mentioned by figures who command the attention that Bret Baier does.
In September 2015, before the election that brought Donald Trump to the White House, the Republicans brought to the floor of the House the bill that sought now, for the first time, to punish the killing of a child who survived an abortion. The bill passed by a vote of 248-177. Every Republican voting that day voted in favor of that bill, and all of the votes in opposition came from a unified Democratic party (with only five Democrats defecting to vote for the bill). In effect, the bill sought to restore the penalties that had been stripped away from the original Born-Alive Infants' Protection Act of 2002, the bill that moved explicitly to extend the protections of the law to a child who survived an abortion.
I had something to do with the Born-Alive bill, and it was called “the most modest first step in legislating on abortion”: The child, now detached in birth, no longer encumbered the interests of the pregnant woman, and no one was churlish enough to pretend that the child could be anything other than a human being. And yet, a decision was made at the time to strip away the penalties, criminal and civil, for the sake of averting a veto from Bill Clinton. The bill would simply plant the point in the law that the child who survives the abortion is a “person” who comes under the protections of the law. But then the killings taking place in the surgical suite of Dr. Kermit Gosnell in Philadelphia brought the issue dramatically to the fore. We learned also that this kind of killing of the newborn was not as rare as even we had thought back in 2000, when the bill was first introduced.
But by the time of the Gosnell revelations, the Democrats had become far more radical and cohesive in their willingness to oppose even the move to set this obvious limit to that “right” to kill a child in the womb. Rep. Jerry Nadler, complaining bitterly all the way and inveighing against the pro-lifers, nevertheless convinced his party to vote for the Born-Alive bill in 2002. He urged them to bite their lips and withhold their resistance, rather than embarrass themselves by insisting that the “right to abortion” must be the “right to a child delivered dead.”
But more than a decade later, by the fall of 2015, the temper and character of the Democrats had hardened. Instead of feigning moderation, virtually all Democrats were willing to take a line that blew away all limits on abortion. The Democratic position on abortion was now the most radical position taken in the West. The radicalism was deepened by the constitutional commentary offered by former professor of law Barack Obama. Obama had managed to kill a comparable bill in Illinois when he had been a state senator, and he argued now that this kind of bill was actually unconstitutional—that it was incompatible with the right to abortion proclaimed in Roe v. Wade in 1973.
When we put the pieces together, we have a conclusion so startling that it strikes us in the face: In the understanding now settling in the Democratic party, that “right to abortion” is not confined to a pregnancy. Rather, that right now extends beyond the pregnancy and entails nothing less than a right to kill a child born alive. That is an understanding that would come as a shock to most people in the country, and it should administer a jolt to all Democrats participating in the confirmation hearings for new judges: For if Professor Obama is correct, that Roe v. Wade entails this new freedom to kill the child born alive, that claim would come as a jarring surprise to the public, and Roe could hardly be the “super precedent,” as Diane Feinstein calls it. For the new truth that dare not speak its name is that, 46 years later, the very meaning of Roe v. Wade as a precedent is not at all settled.
This dramatic new position was in place even as the debates were heating up over candidates for the 2016 election. Nothing, no legislation, no measure, marked a more dramatic difference between the political parties. Nothing could have produced a sharper division among the candidates in both parties than this question about the reach or depth of that “right to abortion.” But it was not posed by any of the leading “moderators” who were so earnestly posing questions to the candidates—including Bret Baier. Why not? Could it be that, with all of the vast resources of research available to a national television network, Bret Baier, Megyn Kelly, and Chris Wallace were as uninformed about these notable events as most of the American people? Or was there a deliberate decision, on the part of executives in the higher reaches of the Fox network, not to raise an issue that could be found so unpleasant or unsettling, if not to the audience of Fox News, then to the consensus of polite opinion that unifies our establishment, left and right?
Whatever the answer, the question was sharpened even after Donald Trump was elected. In January 2018, the Born-Alive Abortion Survivors Protection Act was brought to the floor again in the House under Republican control. It was billed as the leading pro-life measure, the bill that the pro-lifers and the Administration were most committed to enacting into law. And the voting in the House was even firmer along party lines, 241-183. Once again, every voting Republican was in favor of the bill, joined by six defecting Democrats, and every vote in opposition came, once again, from a Democratic party delivered to a preternatural cohesiveness when it came to affirming—without a trace of apology—the right to kill a small human being for the sake of one's own private interest.
The bill never made it to the floor of the Senate. There weren't enough votes to overcome a filibuster mounted by the Democrats. And yet, bringing it to the floor and forcing a vote could have had a pronounced effect in the upcoming elections for those Democrats running in states and congressional districts that had been carried by Donald Trump. With this want of political verve, the sobriquet of the “Stupid party” could attach again to the conservatives, who could have generated so much strain for their adversaries at so little cost to themselves.
As 2020 approaches, we find ourselves in another season of interviews and debates with presidential candidates. And Bret Baier is taking the lead at Fox News, holding town halls and interviews with candidates as liberal-left as Bernie Sanders. Baier will run true to form in raising the question of abortion, but it is almost predictable that he will stop yet again and refrain from crossing the line that will shock: He will ask only about abortions performed up to the very edge of pregnancy—the state of affairs that has been in place since Roe v. Wade in 1973. That was why the Born-Alive Infants' Protection Act was an important piece of legislation: to break out to a public quite uninformed that, under Roe and its companion case of Doe v. Bolton, the abortions could be performed throughout the length of the pregnancy—and even after the child came out of the womb. As federal judge Clement Haynsworth wrote, in lines that will linger, “the fetus in this case was not a person whose life state law could protect.” It did not lose its label as a fetus even after it was born. It remained, after all, a fetus marked for “termination.”
Whether witting or not, Bret Baier has allowed himself to become complicit in an illusion, or a convention of silence sustained by the media: an unwillingness to break out to the public those simple, but jarring facts, that show that the Democrats are now firming up in support of a position that would surely shock most people in this country. Stripped of euphemisms, the Democrats are now willing to proclaim, quite openly, a right to kill an innocent human being, for reasons wholly of self-interest, a right to kill the child well outside the womb if that is what it takes.
Bret Baier is the best of what network news has been able to serve up. Which is what makes so unaccountable his silences. It's hard to believe that a reporter so accomplished would be uninformed about the most dramatic turn in this issue that has poisoned and vexed our politics for over forty years. Or perhaps something in the management of his network has restrained him from speaking the words that would truly bring the news and shake up our world of politics and law. Every night, when he ends the evening news, Bret Baier says, “Still fair, balanced—and unafraid.” But has that news been “true” in relaying the dramatic facts that have now transformed the issue of abortion? And with this critical omission, is the account truly “balanced”—and is it really, any longer, “unafraid”?
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 in Washington, D.C. He was an architect of the Born-Alive Infants' Protection Act of 2002, and of the sequel, the Born-Alive Abortion Survivors Protection Act.