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Analysis Douglas Kmiec and his misinformation offensive for Barack Obama.
By W. James Antle, III | February 2009
 On March 23, 2008, Pepperdine University law professor Douglas W. Kmiec published a blog entry on Slate—a popular webzine that prides itself on running contrarian pieces—endorsing Democrat Barack Obama for president of the United States. Kmiec’s endorsement of a fervently pro-abortion candidate sent waves of shock across the Catholic and pro-life communities for several reasons.
First, Pepperdine is a conservative Christian institution that bills itself as “committed to the highest standards of academic excellence and Christian values.” Second, Kmiec was a noted conservative who served as constitutional legal counsel to Presidents Ronald Reagan and George H.W. Bush. More recently, he advised Mitt Romney’s Republican presidential campaign. Finally, unlike many other self-described “Obamacons”—conservative supporters of Obama’s presidential ambitions—Kmiec, a former dean at Catholic University, loudly proclaimed his fidelity to Church teaching.
Attentive readers shouldn’t have been surprised by this unorthodox move, however. A little over a month earlier, Kmiec—fresh from chairing Romney’s Committee on the Constitution—penned a full-length Slate article arguing that Obama would and implicitly should win the Catholic vote that November. “Beyond life issues,” Kmiec claimed, “an audaciously hope-filled Democrat like Obama is a Catholic natural.” Was Kmiec writing sympathetically about a staunch supporter of legal abortion for all nine months of pregnancy (and immediately after) because he was “beyond life issues” himself? Of course not, he said. “While no papal instruction will ever condone the ‘right to choose,’ the church does ask for a consistent and realistic defense of life that actually takes steps to reduce the incidence of the practice, not just condemns it,” Kmiec wrote, arguing that the remaining Republican presidential candidates merely gave lip service to the pro-life cause. “Catholics will note that [John] McCain and [Mike] Huckabee’s pro-life postures collapse when it comes to the death penalty.” “As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends, but as recognition of the significance of the procreative family as a building block of society,” Kmiec later averred in his Obama endorsement. “As a Republican, and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement.”  Kmiec also reaffirmed his constitutionalism, federalism, and conviction that religion must have a strong role in the public square—before launching into a explanation of why he was now supporting a presidential candidate whose publicly stated positions were contrary to all of these views. Thus began Doug Kmiec’s role as a leading Catholic and pro-life apologist for Barack Obama, culminating in a book entitled Can a Catholic Support Him? Asking the Big Questions About Barack Obama. Other self-described conservatives, many of them anything but conservative when it came to social issues, also endorsed Obama. Other professing Catholics who have traditionally been aligned with the Democratic Party did so as well, emphasizing an ever-expanding list of “social justice issues” that must take precedence over the lives of the unborn and the integrity of the family. But only Kmiec aimed his appeals squarely at socially conservative Catholics and tried to persuade them that a vote for Obama would in some real sense advance their pro-life, pro-family values. In pining for the “launch of ‘Reaganites for Obama’,” Kmiec conceded that “Senator Barack Obama and I may disagree on aspects of these important fundamentals.” Nevertheless, Kmiec remained convinced, “based upon [Obama’s] public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.” KMIEC AND FOCA But what accommodation can there be between the pro-life point of view and the Freedom of Choice Act endorsed by Obama as the “first thing I’d do as president,” which would sweep aside virtually every pro-life measure on the state and federal books while requiring taxpayer funding of abortion? Answer: the pro-life viewpoint and the Freedom of Choice Act cannot be reconciled, so Kmiec tried to understate the legislation’s reach and probable results. While allowing that he opposed the Freedom of Choice Act, he contended, “I am not convinced this wholesale invalidation of state law is what is intended by the drafters of FOCA; what they have provided for in the draft legislative language; or what the judiciary would construe that language to mean.” Unfortunately, the National Organization of Women, which supports the Freedom of Choice Act, disagrees. This leading feminist group predicts the legislation would “sweep away hundreds of anti-abortion laws.” Among the policies they believe it would reverse are laws requiring parental consent or even notification before a minor obtains an abortion, informed consent laws mandating pre-abortion counseling, and partial-birth abortion bans “to the extent those bans restrict pre-viability abortion procedures, or post-viability procedures necessary to preserve a woman’s health” as customarily defined since Roe v. Wade. This interpretation of the act is shared by other leading supporters, including the American Civil Liberties Union, Planned Parenthood, and NARAL Pro-Choice America, and has the benefit of being consistent with the bill’s plain language. The whole purpose of the Freedom of Choice Act—misleadingly described by the mainstream media as “codifying Roe v. Wade,” as if it merely preserved the status quo—is to reverse nearly two decades of laws, regulations, and court decisions that have made America’s abortion policies marginally more restrictive. All that remains of Kmiec’s audacious hope that the bill would not roll back these pro-life gains is the possibility that courts will interpret the law narrowly or strike down its more ambitious provisions. But the judges most likely to concur with Kmiec’s circumscribed reading are the ones least likely to be appointed by President Obama. Obama’s abortion voting record—which in 2007 earned 100 percent ratings from NARAL and Planned Parenthood but 0 percent from the National Right to Life Committee—suggests he would be a one-man Freedom of Choice Act. But Kmiec has tried to put a very different spin on Obama’s abortion stance. “It is well known that Senator Obama has clearly stated on numerous occasions his support for restrictions on late term abortions,” he told the religious website Beliefnet. “Indeed, Senator Obama has identified the need to draft a clearly defined health exception, the responsible narrowing of which [the National Right to Life Committee’s] Doug Johnson and I—and perhaps the entire right-to-life community, including the dear late Henry Hyde himself—have been advocating for decades.” Obama has done nothing of the sort, except when trying to emphasize his “common ground” with religious believers and abortion opponents. In a single interview with an evangelical magazine, Obama conceded, “I think it’s entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don’t think that ‘mental distress’ qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy.” But when the abortion lobby pounced on this statement, Obama was forced to clarify: “My only point is this—historically I have been a strong believer in a woman’s right to choose…I have consistently been saying that you have to have a health exception on many significant restrictions or bans on abortions, including late-term abortions…. It can be defined through physical health. It can be defined by serious clinical mental health diseases.” As Obama continued, however, even this feint in the pro-life direction didn’t hold up: “It is not just a matter of feeling blue. I don’t think that’s how pro-choice folks have interpreted it. I don’t think that’s how the courts have interpreted it and I think that’s important to emphasize and understand.” So instead of a promise to “draft a clearly defined health exception,” as Kmiec put it, Obama was instead offering an erroneous interpretation of the country’s reigning abortion jurisprudence. In Doe v. Bolton, the companion case to Roe v. Wade, Harry Blackmun and the Supreme Court held that “health” encompasses “all factors—physical, emotional, psychological, familial and the woman’s age—relevant to the well-being of the patient.” States have repeatedly tried to meet this standard while crafting effective late-term abortion bans only to run afoul of the kinds of judges Obama is most likely to appoint. Obama has himself voted against abortion restrictions with strict health exceptions and supported legislation—once again, the Freedom of Choice Act—that would hold such exceptions to Doe’s standards. Kmiec is willing to take Obama’s rhetorical concessions without demanding any substance. Substance is nevertheless what Kmiec says his Obama advocacy is all about. Throughout the 2008 campaign, he maintained that Obama would do more to reduce the incidence of abortion than any Republican president. “McCain’s commitment, as he stressed in the debate, is to try to reverse Roe vs. Wade,” Kmiec acknowledged in the Los Angeles Times. “But Republicans have been after this for decades, and the effort has not saved a single child.” Obama, meanwhile, would offer economic support to expectant mothers, including those in crisis pregnancies, an approach he described elsewhere as the “difference between criminalization and compassion.” STACKING THE DECK One can justifiably criticize the Republican Party for the lack of seriousness with which it has often fought for the unborn and condemn the role Republican-appointed judges have played in the Roe regime. But Kmiec is clearly stacking the deck: Republicans are found wanting if they fail to enact the entire pro-life agenda while Obama gets a pass for adding free pre- and postnatal care to the entire pro-abortion agenda. Though the pro-life movement has fallen well short of its ultimate goals, Kmiec’s assertion that its political efforts have not saved a single child is demonstrably false. Michael J. New, an assistant professor of political science at the University of Alabama, has done a number of studies that show pro-life legislative and regulatory initiatives have saved many children. Three of his studies have shown that state-level restrictions on the public funding of abortion have reduced the incidence of abortions by more than 10 percent. Activists on both sides of the abortion debate agree that the Hyde Amendment, which prohibits Medicaid funding of elective abortions, has reduced abortions. By some estimates, this policy has prevented over one million abortions since the late 1970s. Other pro-life policies have also had an impact. “There exist at least eight studies in peer reviewed academic journals…which demonstrate that pro-life parental involvement laws reduce the in-state abortion rate for minors anywhere from 13 percent to 19 percent,” New writes. New’s own research shows an even larger decrease in the abortion rate that holds up when enacted laws are compared to those nullified by the judiciary, suggesting it is changes in the law rather than values that made the difference. The number of abortions has fallen in 12 of the last 14 years, resulting in a 21 percent decrease in total abortions. Some of the biggest declines have occurred in the states that have been most active in passing abortion restrictions. Between 1992 and 2000, the number of states enforcing informed-consent laws rose from virtually zero to 27; the number of states banning or restricting partial-birth abortion grew from zero to 12; the number of states enforcing parental-involvement statutes climbed from 20 to 32. Two things happened over the course of the 1990s. First, there was an increase in the number of pro-life legislators from both parties elected to state legislatures and the US Congress. Second, while pro-lifers failed to overturn Roe v. Wade in 1992, that year’s Planned Parenthood v. Casey decision expanded the number of abortion restrictions that consistently pass judicial muster. Therefore, there are in fact good reasons to believe that having pro-life elected officials make policy and appoint judges can save lives even if they fall short of extending full legal protection to all unborn children. If Kmiec were merely an outlier, his mistaken views would be of little consequence. Unfortunately, arguments like his are persuading some pro-lifers to turn away from policies that have been proven to reduce abortions and instead embrace welfare measures that may not have the same effect. Pro-lifers frustrated by the durability of Roe and pro-life progressives are the most susceptible to Kmiec-like appeals. At a Democrats for Life event during the Denver convention last summer, speaker after speaker touted an abortion-reduction strategy that focused on increased social welfare benefits, particularly for pregnant women. Many also justified their support for Obama based on his and the party’s stated commitment to help women who choose to carry children to term. “We need a lot of work on the first nine months,” said pro-life Congressman Heath Shuler (D-NC) of his party’s stand on human life. “The Republicans have a lot more work to do from birth to natural death.” But what if the aid these Democrats wish to give mothers with babies in the nursery is offset by the taxpayer dollars other Democrats would give them in the abortion clinic? Kmiec has at times hinted that his Obama endorsement was actually motivated by his dissent from the Republican line on other life-and-death issues, such as the Iraq war and capital punishment. While these are serious moral issues, Kmiec has never made them central to his public pro-Obama arguments, preferring instead to dissuade pro-lifers from worrying too much about the Democrat’s position on abortion. Moreover, as Pope Benedict XVI (then Cardinal Ratzinger) wrote, “There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.” In fact, Kmiec’s approach has been precisely the opposite of what Denver Archbishop Charles Chaput recommends for determining a “compelling proportionate reason” that might allow a Catholic to vote for a politician who supports legal abortion. “What is a proportionate reason?” Archbishop Chaput asks. “It’s the kind of reason we will be able to explain, with a clean heart, to the victims of abortion when we meet them face to face in the next life—which we most certainly will. If we’re confident that these victims will accept our motives as something more than an alibi, then we can proceed.” By contrast, Kmiec did not oppose John McCain on the basis of just war theory or some other fundamental issue while lobbying Obama and his advisers “to change their pro-abortion views and protect the unborn.” Kmiec has left his reasons for disapproving of the Republican platform implied more often than stated while explicitly downplaying and disregarding the extent of Obama’s pro-abortion views. Worse, in a pre-election op-ed for the Los Angeles Times, Kmiec came perilously close to the “personally opposed but” position on abortion. “Sometimes the law must simply leave space for the exercise of individual judgment, because our religious or scientific differences of opinion are for the moment too profound to be bridged collectively,” he wrote. Kmiec suggested this “sensitive moral decision” should “depend on religious freedom and the voice of God as articulated in each individual’s voluntary embrace of one of many faiths.” Kmiec can deceive himself as to the impact of Obama’s policies on the lives of the unborn. He is not, however, entitled to lead others astray about it with misinformation and poor reasoning. W. James Antle III is associate editor of The American Spectator.
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