From First Things:
My friend and former colleague, Prof. Douglas Kmiec, opened his September 9, 2008 Chicago Tribune op-ed (“How Catholics can oppose abortion, back Obama”) with an endearing expression of respect for Chicago’s cardinal archbishop, Francis George. He then continued with his ongoing, tenacious effort to convince Catholics that a vote for Sen. Obama is, notwithstanding his unswerving and emphatic support for expanding abortion rights, actually a pro-life vote. Unfortunately, in so doing, he appears to have misunderstood the cardinal he so admires.
On September 2, Cardinal George reminded Chicago Catholics that “one cannot favor the legal status quo on abortion and also be working for the common good.” He said this out of concern for the fact that “matters of public policy that are also moral issues sometimes are misrepresented or are presented in a partial or manipulative fashion.”
The cardinal also wrote: “Our present laws permit unborn children to be privately killed. Laws that place unborn children outside the protection of law destroy both the children killed and the common good, which is the controlling principle of Catholic social teaching.” “The unborn child,” he emphasized, “who is alive and is a member of the human family, cannot defend himself or herself. Good law defends the defenseless.” That last sentence is worth reading again: “Good law” does not merely permit us to hope that the defenseless will be well; it “defends” them.
Now, Sen. Obama not only supports, but is enthusiastically and entirely committed to protecting, our “present laws”—that is, the laws that “permit unborn children to be privately killed.” Prof. Kmiec knows this; there is no denying it. That is, Sen. Obama believes—as a matter of principle—that the law ought to “place unborn children outside the protection of law.” Now, we should take him at his word, and assume that he would prefer that fewer abortions take place. Still, on the basic point addressed by Cardinal George, Obama’s position is clear: Unborn children ought not to be protected by law, and the choice for abortion ought to be legally protected. Indeed, Sen. Obama is, at this moment, running swing-state advertisements warning voters that the election of Sen. McCain and Gov. Palin would undermine the current near-absolute abortion license.
And yet, in his op-ed, Prof. Kmiec suggested that it’s only “Republican partisans” bent on “demonizing” their political opponents who say that Obama supports “the legal status quo on abortion.” Sen. Obama, Kmiec insisted, believes that “there are alternative ways to promote the ‘culture of life,’ even given the law’s sanction of abortion.” That Sen. Obama believes there are such “alternative ways,” however, does not change the fact—and, to be clear, it is a fact—that Obama “favor[s] the legal status quo on abortion”.
Having reworked Cardinal George’s exhortation, and pronounced it “exactly right,” Prof. Kmiec suggested to readers of the Tribune that Sen. Obama has no quarrel with it. After all, he said, Sen. Obama “seeks to extend a helping hand (increased funding for prenatal care, maternity leave and less cumbersome and expensive adoption) with an astute understanding of how closely economic circumstances and abortion are related.” Of course, Sen. Obama’s “astute understanding” of this asserted relation has nothing to do with the matter addressed by Cardinal George, namely, the fact that our abortion laws exclude unborn children from their protection. “Good law,” remember, “defends the defenseless.” It does not settle merely for trying to put in a better economic position those who hold the fate of the defenseless in their hands.
For all of Sen. Obama’s professed desire to “extend a helping hand,” there is no denying—though Prof. Kmiec does not mention—that he also supports public funding for abortion, a repeal of the ban on partial-birth abortion, a pro-Roe v. Wade litmus test for judicial nominees, a dramatic expansion of federally funded research involving the destruction of human embryos, and the elimination of legal protection for the conscience rights of health-care professionals and hospitals that object to participating in abortions. How these positions—indeed, they are not merely “positions,” they are, Obama has said, priorities—would (in Kmiec’s words) “strengthen a culture of life” is unclear.
Prof. Kmiec concludes with the suggestion that a vote for Obama is a pro-life vote because studies suggest that abortion rates decline in times of economic wellbeing. Let’s assume they do. But again, Cardinal George’s point had to do with the “legal status quo on abortion,” not with necessarily risky predictions about future ambient economic conditions. One can assert—certainly, Prof. Kmiec did not and cannot demonstrate—that the economic wellbeing of women facing unplanned pregnancies would improve significantly under Sen. Obama. And, one can hope—I’m sure that Prof. Kmiec does—that such an improvement would result in fewer abortions, though such hope would seem hard to sustain, given Obama’s support for the “Freedom of Choice Act.” In any event, such assertions and hopes do nothing to change the fact that Sen. Obama is squarely committed, as a point of pride and principle, not only to preserving the current legal regime, which puts unborn children outside the law’s protection, but also to rolling back the gains that pro-life citizens have managed to secure in recent years.
Prof. Kmiec referred, in his op-ed, to Cardinal George’s “thoughtful instruction.” He should read that instruction again.
Richard W. Garnett is professor of law at the University of Notre Dame.