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Angie Drobnic Holan
By Angie Drobnic Holan October 9, 2008

SUMMARY: An independent group attacks Barack Obama for his votes on "born alive" abortion laws in Illinois. His campaign disputes the charges, but wrongly claims the attack came from John McCain.

The hot-button issue of abortion is the subject of two recent political ads and a controversy centering on Barack Obama's votes in the Illinois legislature.

Our story begins with an ad from an independent advocacy group,, that exists to criticize Obama's votes on abortion when he was a state senator in Illinois.

The group's ad shows a young woman, Gianna Jessen, looking directly at the camera and saying the following: "Can you imagine not giving babies their basic human rights, no matter how they entered our world? My name's Gianna Jessen, born 31 years ago after a failed abortion. But if Barack Obama had his way, I wouldn't be here. Four times Barack Obama voted to oppose a law to protect babies left to die after failed abortions. Senator Obama, please support born alive infant protections. I'm living proof these babies have a right to live." View the ad here .

The ad refers to Illinois legislation put forward in 2001, 2002 and 2003 by opponents of abortion. The intent was to require doctors to provide immediate life-saving care to any infant that survived an intended abortion. The legislation, which included multiple bills, specified that an infant surviving a planned abortion is "born alive" and "shall be fully recognized as a human person and accorded immediate protection under the law."

The bills' supporters said it gave added emphasis to laws already on the books, deterring the death of abortion survivors from neglect. One of the bills' strongest supporters was a nurse, Jill Stanek, who said she had witnessed infants left to die in dirty utility rooms. Abortion-rights proponents, on the other hand, said the legislation was a back-door attempt to stop legal abortions. 

Illinois already had a law on its books from 1975 that said if a doctor suspected an abortion was scheduled for a viable fetus — meaning able to survive outside of the mother's body — then the child must receive medical care if it survives the abortion. The new laws didn't distinguish between viable and nonviable, meaning that an infant of any age that survived an abortion should receive care. 

Because of the older law, Jessen is wrong when she says "if Barack Obama had his way, I wouldn't be here." According to the medical records provided by the organization that produced the ad, Jessen was born at 29 weeks, which would have been a viable pregnancy and subject to the older Illinois law requiring that she receive medical care. So it's not correct to say that Obama opposed that.

We'll state at the outset that Obama, along with other Democrats in the Illinois legislature, opposed the "born alive" laws every time they came up, and this is not disputed. Why he opposed the legislation has become a controversial point during the presidential campaign, however.

Back in 2001, legislative transcripts show that Obama questioned one piece of the "born alive" legislation package because he said it would be struck down by the courts because it gave legal status to fetuses. In 2002, Obama discussed a different aspect of the legislation, which required a second doctor be present at abortions. Obama said he thought that legislation was intended to make abortion more difficult to obtain, not to provide better care for the "born alive." There is no record of his remarks in 2003 because the bill never made it out of committee, and the committee proceedings were not recorded.

In 2002, two years before Obama was elected to the Senate, the U.S. Congress took up its own version of "born alive" legislation, and passed it with a so-called "neutrality clause," which said the law would not change the legal status or legal rights of anyone prior to being "born alive." Abortion rights advocates said the clause was necessary to make sure the bill would not affect current abortion laws.

Obama has said as far back as 2004 that he would have supported the federal bill and that he would have supported the Illinois versions if they had had a similar neutrality clause. The laws the full Senate voted on in 2001 and 2002 did not have such a clause, but 2003 is a different story.

The National Right to Life Committee says the 2003 bill did have a neutrality clause, and contends that Obama is misrepresenting the bill. David Brody of CBN News, a Christian news group, asked Obama for his response to that in August 2008.

"I hate to say that people are lying, but here's a situation where folks are lying," Obama said. "I have said repeatedly that I would have been completely in, fully in support of the federal bill that everybody supported which was to say that you should provide assistance to any infant that was born even if it was as a consequence of an induced abortion." Read his entire answer on the CBN Web site .

We requested documentation from the Illinois State Archives about the 2003 bill and found that it did have a neutrality clause, as the National Right to Life said. (The clause was added at the committee level, and those records are not available online. But we have posted the documents we received via fax from the State Archives here). But there is an important caveat to add here: We don't know what the discussion was at the 2003 committee because the proceedings weren't recorded, but it seems likely that the federal neutrality clause was not considered sufficient at the state level, because the 2005 Illinois law that eventually passed included a more extensive neutrality clause than the federal legislation. To read more about the differences between the neutrality clauses, please see our statement here .

The Obama campaign has been trying to make inroads with voters who oppose abortion. Though Obama supports the right to abortion, he said he believes the number of abortions performed can and should be reduced. So the Obama campaign released a vigorous response ad to the ad. But instead of targeting or Gianna Jessen, the ad attacks John McCain.

"John McCain's attacks, the sleaziest ads ever. Truly vile. Now, votes taken out of context accusing Obama of letting infants die. It's a despicable lie. Even the bill's Republican sponsor said that it's untrue. Obama's always supported medical care to protect infants. McCain. He's running on a platform to ban abortion, even in cases of rape and incest. Sleazy ads. Anti-choice. That's John McCain."

There are a few problems here. The ad shows footage of the ad, which the McCain campaign did not produce. So the Obama ad is blaming McCain for an attack he didn't make. The first ad clearly states that created it, as required by law.

Also, the Republican Party platform does call for a ban on abortion, but McCain himself favors exceptions for rape and incest. His running mate Sarah Palin has said she opposes those exceptions, but the ad doesn't mention her.

One might think the abortion issue would be more clear cut this election cycle. Obama, for instance, has received full 100 percent voting ratings from the abortion rights group NARAL Pro-Choice America for his three years in the U.S. Senate.  John McCain, on the other hand, received a zero percent  rating for the past five years, and in his career has never been rated higher than 10 percent. On the antiabortion side, the National Right to Life has given Obama a score of zero percent for the most recent two scoring periods, while McCain has received ratings of 66, 75, 81, 33, and 66 percent over the last five scoring periods. So the two candidates appear to have very different records.

Nevertheless, there is some evidence that the candidates are each drawing support from the opposite side. The Matthew 25 Network, a Christian political action committee, launched a Web site in October 2008 called . Meanwhile, the abortion rights group NARAL Pro-Choice America claims that some women believe that McCain fully supports abortion rights, and the group has launched ads emphasizing his opposition to abortion.

Meanwhile, recent polls show that abortion is not the most important issue for voters. It ranks consistently behind the economy, the war in Iraq, national security and taxes. In some polls, energy/gas prices and health care rank higher as well.

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Our Sources

Illinois General Assembly, Regular Session Senate Transcript , March 30, 2001

Illinois General Assembly, Regular Session Senate Transcript , April 4, 2002

Illinois General Assembly, Born Alive Senate Bills , 2001

Illinois General Assembly, Born Alive Senate Bills , 2002

Illinois General Assembly, Born Alive Senate Bills , 2003

U.S. Government Printing Office (federal law), Born Alive Infants Protection Act of 2002

Thomas, Born Alive Infants Protection Act of 2002

Jill Stanek blog (Chicago anti-abortion activist)

Current Illinois state law regarding abortion

Illinois General Assembly, Born Alive Act , passed 2005

Barack Obama campaign Web site, federal versus state "Born Alive" factcheck , June 30, 2008

Barack Obama campaign Web site, Born Alive legislation factsheet , Aug. 19, 2008

Barack Obama campaign Web site, Reckless accusations of infanticide

Chicago Tribune, Obama's record on abortion hit , Aug. 20, 2002

Chicago Tribune, A big split over abortion, stem cells, Oct. 4, 2004, accessed via Nexis

National Right to Life Committee, White Paper on Barack Obama and born alive legislation , Aug. 28, 2008, Obama gets heated on born alive protection act, Aug. 16, 2008

The Associated Press, Obama comments on late term abortions , July 4, 2008, Born Alive Baloney , Sept. 24, 2008, Obama and "Infanticide," Aug. 25, 2008

The 2008 Republican Party Platform, "Maintaining the sanctity and dignity of human life."

This Week with George Stephanopoulos, Interview with John McCain, Nov. 19, 2006, accessed via Nexis

ABC News, Interview with Sarah Palin, Sept. 12, 2008, accessed via Nexis

NARAL Pro-Choice America, Barack Obama voting ratings

National Public Radio, Misperceptions about McCain's abortion stance , Feb. 2, 2008

NARAL Pro-Choice America, John McCain voting ratings

National Right to Life, Vote Scorecards, Problems and Priorities , accessed Oct. 6, 2008

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