Shortly thereafter, I went to the Senate floor to urge my colleagues to support the bill and to come together in defense of innocent life:
Mr. President, stop and think about this for a moment. There have been debates about abortion for a long, long time. This bill was allowing a mother in labor—in the process of delivering a child—this bill would allow a doctor to kill that child instead of delivering the child in the midst of labor. For a great many people, even Americans who identify as pro-choice, the idea of killing a child while the mother is in labor delivering the infant, is horrifying beyond words.
But Mr. President, Governor Northam didn’t end there. He wasn’t content simply with saying that abortion should be allowed even in the midst of birth. He went further. He said on that radio interview, and I quote, “The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”
Mr. President, so nobody is lost on what Governor Northam was saying, he was describing something that has euphemistically been called “post-birth abortion.” He was describing his view of the right way to approach delivering a child, which is a child that is delivered, that is outside the womb, that is breathing and crying and living, that is an infant—and Governor Northam calmly, with virtually no emotion whatsoever, described comforting that infant and then having a conversation about whether to deny that child the necessary care to live, or simply to callously let a newborn infant die.
On February 25, 2020, the Born Alive Abortion Survivors Protection Act came to a vote on the Senate floor. The Democrats filibustered the bill, and it tragically failed by a vote of 56–41. Every Republican voted yes, and all but three Democrats voted no. Sixty votes would have been needed to overcome the filibuster.
This is a radical Democratic party.
And, as for the Supreme Court, it still hangs in the balance. Roe and Casey are very much at stake—together, we need to restore a culture of life that protects the sanctity and dignity of every human life. But also at stake are countless important legal protections, including parental consent laws, clinic safety regulations, and bans on partial-birth abortion.
Each, potentially, survives or falls by a single vote. Four justices are already prepared to overturn them all, to allow unlimited abortions in every circumstance. They just need one more. The dramatic shift between Stenberg and Gonzales—both 5–4, decided opposite ways, just a few years apart, on nearly identical statutes—powerfully illustrates just what it means to be one vote away.
CHAPTER 6
FREE SPEECH AND CITIZENS UNITED V. FEDERAL ELECTION COMMISSION
Do you have the right to criticize elected officials? Do you have the right to disagree with candidates running for president of the United States? Does the Constitution protect your right to say, “Hillary is a crook,” or “Donald Trump is a bully,” or “Joe Biden is soft on China”? Some might think those are simple and straightforward questions—even obvious—but today that fundamental liberty is very much in jeopardy.
Those were precisely the questions at the heart of Citizens United v. Federal Election Commission, which was decided in 2010 by a narrow vote of 5–4. Citizens United is a nonprofit organization that made a movie critical of Hillary Clinton. Citizens United disagreed with Hillary’s policies and had serious concerns about her ethical and legal failings—all of which were reflected in the movie they produced entitled, Hillary: The Movie.
However, because Citizens United sought to run advertisements for its movie in the period immediately preceding an election, the Federal Election Commission asserted the power to fine Citizens United under the McCain–Feingold campaign finance legislation, passed in 2002. Citizens United filed a lawsuit challenging the constitutionality of the government’s asserted power to regulate core political speech. And that case proceeded to the Supreme Court. Ultimately, the Supreme Court struck down the provisions of McCain-Feingold that purported to restrict Citizens United’s ability to publish and advertise its movie criticizing Hillary Clinton.
Few decisions in the past decade have engendered more political animosity on the left and confusion or outright misrepresentation from the press. You may have heard Citizens United being described as a case concerning whether corporations are people, or a case concerning whether money is speech. It has become commonplace for Democratic politicians to routinely answer “no” to both questions, and to characterize Citizens United as a decision that allowed giant corporations to “buy” political elections.
That can be effective as political rhetoric. It has the simple failing of not being true. On the question of whether corporations are people, the answer is that of course they are not. But, as a legal matter, they are an assembly of people. They are multiple people gathered together for a common purpose. And as a constitutional matter, there should be no serious dispute that American citizens, either individually or gathered together in the corporate form, have the right to free speech under the First Amendment.
And, as it so happens, the vast majority of speakers affected by Citizens United are not the big, bad, wealthy corporations portrayed by Democratic politicians. Citizens United itself was, and is, a small nonprofit corporation. It’s not Exxon Mobil. It’s not Citigroup. It’s a conservative nonprofit that sought to portray its perspective on Hillary Clinton.
If
