Doug Kmiec Responds to National Right to Life

posted by dgilgoff

nrlc.jpgkmiec2.jpgIn response to God-o-Meter’s interview with former Reagan/Bush White House counsel Douglas Kmiec (pictured) about his new pro-Obama book Can A Catholic Support Him?, National Right to Life Legislative Director Douglas Johnson posted a long critique in the comments section. Kmiec offers this point-by-point rebuttal:
Douglas Johnson, National Right to Life: Obama and the “Abortion Reduction” Scam
In various interviews with Prof. Kmiec that I’ve seen, he works hard to leave the impression that Obama will merely preserve the legal status quo on abortion, while throwing some government assistance in the general direction of women who are experiencing crisis pregnancies. Kmiec has swallowed the recently adopted Obama PR spiel that he wants “abortion reduction.” But the real Barack Obama is firmly committed to an agenda of hard-line pro-abortion policies that, if implemented, would greatly increase the numbers of abortions performed.

Obama supporter Douglas Kmiec: First, as I indicate in my book Can a Catholic Support Him? Asking the Big Question About Barack Obama (Overlook Press, NY), my endorsement of Senator Obama has from the beginning indicated places where this conservative Republican (me) disagrees with the Senator, and we disagree on the Freedom of Choice Act (FOCA) which I oppose, and indeed, believe in its current form exceeds the power of Congress. Second, to the extent FOCA is believed to mandate the public funding of abortion, and that is not explicit, I would oppose that as well.
That said, while the Senator and I are in disagreement, it does not dim my enthusiasm for his presidency since I believe for the first time we will have a president who genuinely intends to address the poverty and anxiety that in the vast majority of cases determines a woman’s decision.
Second, I greatly respect Doug Johnson and his work in behalf of life. In this regard, he has been in this vineyard long enough to know that there is a meaningful difference between pro-abortion and pro-choice. Indeed, in Senator Obama’s case, it is more aptly a difference between criminalization and compassion, or to be even more fair to the approach advocated by Mr. Johnson, regulation and restriction or the encouragement of a responsible exercise of freedom.
In any event, Senator Obama has never been pro-abortion, and is not now.

Douglas Johnson, National Right to Life: For example, by even the most conservative estimate, there are more than one million Americans alive today because of the Hyde Amendment, which cut off federal funding for abortion starting in 1976. Some of them are probably turning out for the Obama “Faith, Family, Values Tour” meetings. Even the Alan Guttmacher Institute (linked to Planned Parenthood) and NARAL admit that the Hyde Amendment (and the similar policies adopted by many states) have resulted in many, many babies being born who otherwise would have been aborted — indeed, the pro-abortion groups periodically put out papers complaining about this. So, the Hyde Amendment is a proven “abortion reduction” policy, big time. Yet Obama advocates repeal of the Hyde Amendment — and he also wants to enact a national health insurance program that would also mandate coverage of abortion on demand. (As a state legislator, he voted directly against limits on public funding of elective abortions.) If he were elected president and succeeded in implementing these policies, the likely result would be a very substantial increase in the number of abortions performed in the U.S., quite possibly an increase in the hundreds of thousands annually.

Obama supporter Douglas Kmiec:: Again, “mandate coverage for abortion on demand”? This has never been Senator Obama’s position, which instead:
Accepts the Roe framework, leaving the ultimate decision to the expectant mother, and consistent with language the Senator was instrumental in having added to the Democratic Platform also “strongly supports a woman’s decision to have a child by ensuring access to and availability of programs for pre and post natal health care, parenting skills, income support, and caring adoption programs.”

Douglas Johnson, National Right to Life: It should be noted that the Hyde Amendment must be renewed every year, because it is a “limitation amendment” on the annual Health and Human Services appropriations bill. During some years, the Hyde Amendment was preserved only because Republican presidents threatened to veto, or did veto, HHS funding bills that did not extend the law. But renewal of the Hyde Amendment would be difficult if a president insisted that any funding bill that contained it would be vetoed.

Obama supporter Douglas Kmiec: As Doug Johnson indicates, the Hyde Amendment is renewed year by year. Even were FOCA to pass, and even if my doubts about its unconstitutionality were determined by an appropriate court to be unfounded, Congress has it well within its power to renew the Hyde Amendment after FOCA, which by well-settled, last-in-time interpretative principles would keep the abortion funding limitation in place. What’s needed is what has always been needed, a convincing and legislatively winning argument that on balance public funding for abortion wrongly implicates the taxpayer in what many citizens, including me, see as a moral wrong.
I have not discussed this with him at great length, but I imagine that Senator Obama views health care funding as something that as much as possible should be governed by the needs and determinations of a patient and the patient’s doctor, and it is this nondiscrimination principle, which convinces him that just as public funds should be available for pre and post natal care so too a woman’s choice to bear a child cannot be coerced under criminal or regulatory penalty. Again, not my view and given that FOCA in one form or another has been stalled in Congress since 1989, arguably not the view of the public at large. Indeed, on that score, FOCA’s fate will be more determined by the electoral outcome in Congress than the presidency.

Douglas Johnson, National Right to Life: Moreover, pro-life state laws — for example, women’s right to know laws, waiting periods, and parental notification laws — are saving countless lives, but Obama is a cosponsor of the so-called “Freedom of Choice Act” (S. 1173), which would invalidate virtually every federal and state limitation on abortion. Don’t take my word for it — read what Planned Parenthood said about it, here.

Obama supporter Douglas Kmiec: 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. There is still a presumption against preemption that is respectful of the different choices of the states – at least in areas where a constitutionally-affirmed fundamental right is not present (and abortion, as Doug Johnson knows, is not that) — so I do not accept that regulation, for example, that is evenhandedly drafted by the states to preserve patient health and well-being across multiple medical procedures including abortion automatically is invalid as a “discrimination.” Even the statement of that proposition seems absurd on its face.

Douglas Johnson, National Right to Life: On July 17, 2007, Obama told the Planned Parenthood Action Fund, “The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.”
More than half of the states have parental notification or consent laws in effect, which the Supreme Court has said are permitted under Roe v. Wade as long as they meet certain requirements, including availability of judges to authorize abortions without parental notification or consent. A recently released study by Michael New, Ph.D. , assistant professor of political science at the University of Alabama, found that laws requiring notification to or consent of at least one parent prior to a minor’s abortion have reduced the abortion rate among minors, in states that have enacted such laws, by approximately 13.6 percent on average (even though these laws have court-mandated judicial bypass provisions). In states that enact laws requiring the involvement of both parents, the in-state abortion rate among minors dropped by about 31 percent.
Every one of these laws would be nullified by the “Freedom of Choice Act.”

Obama supporter Douglas Kmiec: Again, I believe this to be overstatement, both in light of the preemption principle noted above and the underlying constitutional doubt about FOCA derived from well-settled law that Congress lacks authority to redefine constitutional rights and liberties. A Supreme Court that some years ago denied Congress’ ability to enact into law as against the states a super-protection of religious liberty is likely to have the same reservations, maybe more given the sensitive and controversial nature of the abortion subject.

Douglas Johnson, National Right to Life: Obama has also voted directly against parental notification requirements twice, out of two opportunities, during his short time in the U.S. Senate.
For more information on the “Freedom of Choice Act,” I recommend study of Cardinal Justin Rigali’s September 19, 2008 letter to Congress about the bill, and the legal memo that accompanied it. They are here and here.

Obama supporter Douglas Kmiec: I fully accept the teaching of my church. That teaching, including the thoughtful letter from Cardinal Rigali, indicates that “in recent months, the national debate on abortion has taken a turn that may be productive. Members of both parties have sought to reach a consensus on ways to reduce abortions in our society.” While his Eminence finds this consensus emerging especially on the regulatory front, I do not read his letter as denying the possibility of consensus by means of improved support for women in poverty and who are often alone and isolated. Quite the contrary, the Cardinal himself notes, quite consistently I might add with the perspective of Senator Obama (though, appropriately of course, the Cardinal does not mention any political figure by name), that “because many women have testified that they are pressured toward abortion by social and economic hardships, bipartisan legislation providing practical support to help women carry their pregnancies to term, . . . deserves Congress’s attention.” Senator McCain’s history here is curious. On the one hand, the Senator voted in favor of amending those eligible for the State Children’s Health Insurance Program (SCHIP) to include the unborn-while voting against legislation to expand SCHIP’s coverage to low-income children and pregnant women at least six times.
With all due respect, that type of legislative duplicity is just political gamesmanship which squanders the kind of tangible consensus both the Cardinal and myself and pro-life advocates in both parties would applaud. Matt Bowman in The American Spectator in an essay calculated to bolster Senator McCain’s on again/ off again pro-life position (in the late 90s, the Senator spoke approvingly of Roe, for example) is reduced to writing: “there is no tangible reason to fear that McCain would veto abortion-alternative funding,” though he then urges that the Senator make it “more clear.”
Clarity is good, and like Mr. Bowman, I would hope Senator McCain would follow the lead of Senator Obama on this and support “pre and post natal care.” To do that, however, the Obama administration will first have to clean up the financial mess left behind by the misguided Bush-McCain economic ideology that favored maverick deregulation and tax subsidization of the wealthy — though apparently not the economically savvy. In other words, to responsibly fund abortion alternatives, Senator McCain will need public resources. Such resources will likely only be possible by the repeal of high-end tax favoritism and the enactment of middle class tax cuts along the lines envisioned by Senator Obama.

Douglas Johnson, National Right to Life: Kmiec sometimes refers to the purported failure of Republican officeholders to achieve a “Human Life Amendment” to the Constitution. It should be noted that the Constitution does not give a president any formal role whatever in the constitutional amendment process. (An amendment requires a two-thirds vote in each house of Congress, and ratification by at least 38 state legislatures, but not the president’s signature.) With respect to regular bills, however, such as the “Freedom of Choice Act,” the president’s hand holds great power: to veto the bill — thereby protecting hundreds of pro-life laws and saving countless human lives, which is what a President John McCain would do if the “Freedom of Choice Act” reaches his desk — or to sign the execution order, as Barack Obama has pledged to do.

Obama supporter Douglas Kmiec: Yes, constitutional amendments depend on the initiative of members of Congress, like that which Senator McCain could have undertaken – but did not — during his almost 30 years occupying public office.

Douglas Johnson, National Right to Life: Obama even advocates repeal of the national ban on partial-birth abortions, which the U.S. Supreme Court upheld in 2007 on a 5-4 vote — a ruling that Obama harshly criticized. Indeed, one of the major purposes of the “Freedom of Choice Act,” according to its prime sponsors, is the nullification of the ban on partial-birth abortions.

Obama supporter Douglas Kmiec: It is well known that Senator Obama has clearly stated on numerous occasions his support for restrictions on late term abortions. Indeed, Senator Obama has identified the need to draft a clearly defined health exception, the responsible narrowing of which Doug Johnson and I – and perhaps the entire right to life community, including the dear late Henry Hyde himself — have been advocating for decades.

Douglas Johnson, National Right to Life: Finally: Kmiec has written elsewhere of the personal work that he and his wife have done in assisting women who are experiencing crisis pregnancies, which is certainly commendable. Crisis pregnancy centers (CPCs) across this nation help many, many women each year, and save the lives of many children. Before Kmiec speaks again about Obama’s purported commitment to “abortion reduction,” perhaps he should reflect on the question put to the Obama campaign by RHrealitycheck.org, a prominent pro-abortion advocacy website — “Does Sen. Obama support continuing federal funding for crisis pregnancy centers?” The Obama campaign’s official response was short, but it spoke volumes: “No.”

Obama supporter Douglas Kmiec: Continue funding? The counseling centers known to me and my very effective spouse have not had the benefit of such funding. Must be hard to get. Anyway, Senator Obama’s signal of clear and strong support for women who choose to carry a pregnancy to term offers the kind of complementary assistance that will hardly impede crisis pregnancy centers. And that’s the thing, you have to have the funding for pre and post natal care, income support and parenting skills before you can help anyone in the context of a crisis pregnancy center or otherwise. And as I see it, only Senator Obama has made this, well, “clear.” All McCain-Palin have is platform rhetoric about finding “new ways to empower,” which is really rather tired, old verbiage more likely to mean embarrassingly little.


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Douglas Johnson

posted September 29, 2008 at 4:29 pm

Some of Prof. Kmiec’s response is, in my view, entirely off-subject, but I will address his substantive claims about abortion-policy issues under several topical headings.
“Freedom of Choice Act” (FOCA)
Let’s start with Prof. Kmiec’s novel attempt to re-interpret the “Freedom of Choice Act” (S. 1173), a bill that Obama has cosponsored, and regarding which he told the Planned Parenthood Action Fund on July 17, 2007, “Well, the first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.” This is the bill that the National Organization for Women said, quite accurately, “would sweep away hundreds of anti-abortion laws [and] policies.” The FOCA would continue to have this sweeping pro-abortion effect even if Roe v. Wade was entirely overturned, because any laws touching on abortion would still have to survive scrutiny under the language of the FOCA.
Prof. Kmiec writes above:

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.

When I read that statement, I can only rub my eyes and shake my head — it may be the greatest intellectual contortion I’ve yet witnessed in Prof. Kmiec’s ongoing attempt to minimize the extreme sweep of the pro-abortion policy agenda to which the real Barack Obama is firmly committed.
I would certainly recommend that anyone truly interested in this subject actually read the “Freedom of Choice Act,” which contains pages of proposed congressional “findings” celebrating legal abortion and enumerating the purported congressional authority for enactment of such a bill. The compete bill text is here: http://www.nrlc.org/FOCA/FOCA2007S1173.html
I am going to reproduce here only the core of the bill — the “operative language,” as we say:

(a) Statement of Policy- It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.
(b) Prohibition of Interference- A government may not–
(1) deny or interfere with a woman’s right to choose–
(A) to bear a child;
(B) to terminate a pregnancy prior to viability; or
(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman;
(2) discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.
(c) Civil Action- An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.
SEC. 5. SEVERABILITY. If any provision of this Act, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to persons or circumstances other than those as to which the provision is held to be unconstitutional, shall not be affected thereby.
SEC. 6. RETROACTIVE EFFECT. This Act applies to every Federal, State, and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action enacted, adopted, or implemented before, on, or after the date of enactment of this Act.>

In order to grasp the full import of those prohibitions, one must also consider “definitions” in the bill, which would govern the application and enforcement of its terms. Here they are:

In this Act:
(1) GOVERNMENT- The term `government’ includes a branch, department, agency, instrumentality, or official (or other individual acting under color of law) of the United States, a State, or a subdivision of a State.
(2) STATE- The term `State’ means each of the States, the District of Columbia, the Commonwealth of Puerto Rico, and each territory or possession of the United States.
(3) VIABILITY- The term `viability’ means that stage of pregnancy when, in the best medical judgment of the attending physician based on the particular medical facts of the case before the physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the woman.

This is just about as broad as statutory language can be. The drafters quite purposefully have not listed specific types of federal or state laws that “interfere with” access to abortion, such as parental notification laws or waiting periods, because they might forget to put something on this list. Rather, they have used the most all-encompassing language imaginable — any “Federal, State, and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action” that in any way “interferes with” a female’s right to abortion or that “discriminates against” abortion “in the regulation or provision of benefits, facilities, services, or information,” would plainly be invalidated by this language.
This sweeping language applies without qualification before “viability.” It applies with equal force after “viability” whenever a “health” reason is invoked for an abortion — and states would be powerless to adopt narrowing definitions of “health,” because the purpose of the federa law is to prohibit state infringement on the “fundamental right” that it declares. And for good measure, the bill denies authority to anyone except the abortionist to determine whether “viability” exists.
And of course, this is exactly what is “intended by the drafters”. Senator Barbara Boxer (D-Ca.), the chief Senate sponsor of the bill, said this in a press release the day she introduced the FOCA: “That [the operative language of FOCA] means women would have the absolute right to choose whether to continue or terminate their pregnancies before fetal viability, and that right would be protected by this legislation. The Freedom of Choice Act also supercedes any law, regulation or local ordinance that impinges on a woman’s right to choose.” (The Boxer statement is here: http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf)
For purposes of illustration, Senator Boxer also spelled out some of the tangible effects of the FOCA. She said:

“That means a poor woman cannot be denied the use of Medicaid if she chooses to have an abortion. That means that abortions cannot be prohibited at public hospitals, giving women more choices than private clinics. That means that we respect a woman’s ability to make her own decision, and don’t force women to attend anti-choice propaganda lectures, which submit women to misleading information, the purposeofwhichisto discourage abortion. That means that women serving our country in the military overseas would be able to afford safe abortions that can be performed in a military hospital. And, under our law, women who are denied their right to choose, or discriminated against will be able to go to court to enforce the law.

Likewise, Congressman Jerrold Nadler (D-NY), the chief sponsor of the virtually identical House bill (H.R. 1964), says that it “would bar government – at any level — from interfering with a woman’s fundamental right to choose to bear a child, or to terminate a pregnancy.”
Prof. Kmeic insists that “Senator Obama has never been pro-abortion, and is not now.” I invite any open-minded reader to keep that assurance in mind while reading the FOCA, and in light of Obama’s statement to Planned Parenthood, “The first thing I’d do as president is sign the Freedom of Choice Act.” In my own view, Obama — based on his actual record and on his articulated commitments — is the most pro-abortion candidate ever nominated for president by a major political party.
So, a short review: Prof. Kmiec says, “I am not convinced this wholesale invalidation of state law is what is intended by the drafters of FOCA,” but Senator Boxer, the chief sponsor, says that the bill’s plain language means exactly what it says — that it establishes “the absolute right.” What is there about the bill author’s reference to “the absolute right,” or about “a government may not deny or interfere with,” that Prof. Kmiec does not understand?
The FOCA’s sweeping scope is well understood by the analysts for the pro-abortion advocacy groups that are pushing the bill. In a factsheet (read it here: http://www.nrlc.org/FOCA/PPFAfoca-questions-12445.mht), the Planned Parenthood Federation of America (PPFA) explains, “FOCA will supercede anti-choice laws that restrict the right to choose, including laws that prohibit the public funding of abortions for poor women or counseling and referrals for abortions. Additionally, FOCA will prohibit onerous restrictions on a woman’s right to choose, such as mandated delays and targeted and medically unnecessary regulations.” In addition, PPFA explained, “Parental consent or notification statutes have been used as a tool to deny access to abortion services for minors. When such laws deny or interfere with the ability of minors to access abortion services, they would violate FOCA.”
The National Organization for Women says that the bill “would sweep away hundreds of anti-abortion laws [and] policies.”
NARAL says, “If passed, FOCA would establish a federal law guaranteeing reproductive freedom for future generations of American women. FOCA would ensure that women’s rights remain intact, even if President Bush, Congress, and the courts are successful in reversing Roe v. Wade or imposing even more restrictions on our right to choose.”
The Center for Reproductive Rights, the most active litigating arm of the pro-abortion movement, says that FOCA “would provide federal protection for a woman’s right to abortion and prohibit states from denying or interfering with that right.”
In the face of agreement from such diverse sources about what the bill is intended to do and what it would do, Prof. Kmiec’s position seems to be one of studied denial.
The Hyde Amendment (public funding of abortion
Prof. Kmiec says that it “is not explicit” that the FOCA would mandate public funding of abortion. Please. Consider the Hyde Amendment, which governs the federal Medicaid program. The programs covers a broad range of medical services, including contraception. The Hyde Amendment says that federal funds may not be used to pay for abortions within the program (except to save the life of the mother, or in cases of rape or incest). The Hyde Amendment does, therefore, “discriminate against” abortion “in the regulation or provision of benefits, facilities, services, or information.”
As the legal office of the U.S. Conference of Catholic Bishops explained in an August 15, 2008 memorandum sent to members of Congress (read it here: http://www.nrlc.org/FOCA/USCCBlegalmemoFOCA.pdf):

Third, FOCA provides that government may not “discriminate” against the abortion right in the “regulation or provision of benefits, facilities, services, or information.” Although “discriminate” usually has a perjorative connotation in common parlance, at law it simply means to treat differently. Thus, legislation that funds childbirth or other health services but not abortion, public hospitals that provide services related to childbirth but not abortion, and public benefits that pay for childbirth but not abortion — all of these treat abortion differently and therefore could be said to “discriminate.”

Prof. Kmiec thinks that even if the FOCA was enacted, invalidating the Hyde Amendment, Congress could still re-enact the Hyde Amendment, and this later act by Congress would be the governing one. Even if we assume for the sake of argument that Congress would have that power (notwithstanding the plain language of the “Retroactive Effect” clause of FOCA, which I have quoted above), Kmiec overlooks that Medicaid is a joint federal-state program. The FOCA would invalidate not only the federal Hyde Amendment but also the state laws and regulations by which most states block funding for abortion under their Medicaid programs. So under Kmiec’s hypothetical scenario, in which Congress enacts FOCA and then re-enacts the Hyde Amendment after that, the net effect would still be that every state would be compelled to pay for abortion on demand under Medicaid, with state funds, as mandated by the FOCA. The net effect in increasing the number of abortions would be exactly the same whether abortion on demand is paid for with federal funds or with federally mandated state funds.
Moreover, Prof. Kmiec overlooks that Obama need not wait for the FOCA to land on his desk, in order to attack the Hyde Amendment. Remember, the Hyde Amendment (and a number of similar provisions that govern other federal programs) are not “permanent law.” Rather, they are limiting provisions contained within annual appropriations bills. Thus, these pro-life provisions must be renewed annually, and they are subject to attack annually by foes in Congress, by a pro-abortion president, or both. Since the Hyde Amendment was first enacted in 1976, there have been years in which it was extended only because Republican presidents threatened to veto, or did veto, appropriations bills that did not extend the Hyde Amendment.
Already, Speaker Nancy Pelosi and most other current Democratic congressional leaders are hostile to the Hyde Amendment — but the Hyde Amendment has been extended anyway, for the past two years, because President Bush issued a letter in early 2007 saying that he would veto any bill that weakens any existing pro-life policy (see http://www.nrlc.org/Records/PresidentBushToPelosiProLifeVetoes.pdf). Things could change quickly under a president determined to re-establish federal funding of abortion on demand. If a president demanded that the Hyde Amendment be dropped and vetoed bills that contain it, it would require a two-thirds vote of each house of Congress to override such a veto.
The Hyde Amendment, and the similar policies adopted by many states, are saving many lives. According to a 2007 NARAL factsheet, “A study by The Guttmacher Institute shows that Medicaid-eligible women in states that exclude abortion coverage have abortion rates of about half of those women in states that fund abortion care with their own dollars. This suggests that the Hyde amendment forces about half the women who would otherwise have abortions to carry unintended pregnancies to term and bear children against their wishes instead.”
In 1993, there was debate in Congress over whether to continue the Hyde Amendment, which since 1976 has blocked federal Medicaid funding for abortion. The Congressional Budget Office (at that time under Democratic control) wrote, “Based on information from the Centers for Disease Control and from States that currently pay for abortions using state funds, the federal government would probably fund between 325,000 to 675,000 abortions each year [if the federal government resumed Medicaid funding for abortion]. The increase in the total number of abortions would be smaller, however, because some abortions that are currently funded by other sources would be partially or totally paid from federal funds . . .”
Late Abortions
Prof. Kmiec says, “It is well known that Senator Obama has clearly stated on numerous occasions his support for restrictions on late term abortions.” I respectfully submit that this is balderdash. As a member of the Illinois state Senate, Obama led the opposition to the Born-Alive Infants Protection Act (BAIPA), and in 2003 he even killed, in a committee he chaired, a version of the bill that was virtually identical to the federal BAIPA that had passed Congress without a single dissenting vote in 2002. Obama made it clear at the time that he was unwilling to recognize what he called a “previable fetus” as a legal “person” even after that human had achieved “complete expulsion or extraction” from the womb, and was clearly alive. For documentation on Obama’s record on this issue and a response to the shifting disinformation that Obama and his defenders have disseminated about it, see http://www.nrlc.org/ObamaBAIPA/WhitePaperAugust282008.html
Obama also opposed separate legislation that would have tightened up the circumstances under which the presence of a second physician (to care for a live-born baby) would be required during an abortion after “viability.” Obama argued that this would “burden the original decision of the woman and the physician to induce labor and perform an abortion . . . . [I]t’s important to understand that this issue ultimately is about abortion and not live births.” (Speech on the Illinois Senate floor against SB 1663, April 4, 2002)
In addition, Obama was a leading opponent of state legislation to restrict partial-birth abortions, the abortion method in which the baby is mostly delivered alive feet-first, after which the abortionist punctures the baby’s skull and suctions out the brain. Not many months ago, Obama and his defenders (including the Planned Parenthood president for Illinois) were quick to spring to Obama’s defense when the Hillary Clinton campaign suggested that Obama had pulled his punches on the partial-birth abortion issue. At that time, the Obama camp argued — accurately — that Obama had been in the forefront of opposition to this legislation. Read about it on the website of the liberal media-watchdog group “Media Matters,” here: http://mediamatters.org/items/200712140004
Obama was not yet in Congress when the federal Partial-Birth Abortion Ban Act was enacted in 2003 (with McCain’s strong support), but when the U.S. Supreme Court upheld that ban in April 2007, both Obama and Senator Biden harshly criticized the Court’s ruling. The FOCA was reintroduced in Congress the day after the Court’s decision, with the FOCA chief sponsors stressing that one of its effects would be to re-legalize partial-birth abortions. About a month later, Obama co-sponsored the FOCA.
Since effectively securing the Democratic nomination, Obama began to implement the “messaging strategy” of putting out quotes that would suggest, to the uninitated, that he was some kind of middle-grounder on abortion. Obama gave one interview to a religious publication in which he suggested that he didn’t favor abortion in the final months of pregnancy for “mental distress.” When some pro-abortion groups protested, Obama’s campaign quickly clarified that he does believe that abortion should be allowed in the final months of pregnancy for mental-health reasons, but not for merely “feeling blue.” This is all empty verbiage. The FOCA language says that no level of government may “interfere” with an abortion sought for “health” reasons even after the baby is “viable” (able to survive independently of the mother). If FOCA was enacted, no state would be able to pass a law restricting third-trimester abortions for some “health” claims but not others, because the entire thrust of the bill is that states may not narrow the scope of the right defined by the federal statute.
Prof. Kmiec seemingly objects to my earlier observation that Obama’s proposed health-care plan would “mandate coverage of abortion on demand.” But his objection seems to boil down to a claim that Obama does not want to force women to have abortions. But what I said, of course, was that he would “mandate coverage.” Various materials issued by the Obama campaign and direct statements by Obama indicate that his plan would require employers to provide a certain level of benefits, and that “reproductive health” services — which, of course, includes elective abortion — will be part of that mandated package.
Obama’s Desire to Cut Off CPC Funding
Prof. Kmiec observes that the Crisis Pregnancy Center that he had his wife have worked with has not enjoyed any federal funding, and that it “must be hard to get.” It is true that such funding is not as widely available as would be desirable, for at least two reasons. One, currently cooperation is required from a state government to apply for the funds, which is unlikely in California at this time. Secondly, legislation to expand federal funding has been blocked by the abortion lobby in Congress (which also resists such funding in many states). I leave it to the reader to judge whether the absolutely explicit written statement by the Obama campaign that Obama opposes any further federal funding for crisis pregnancy centers (read it here: http://www.rhrealitycheck.org/blog/2007/12/21/sen-barack-obamas-reproductive-health-questionnaire) can be reconciled with Prof. Kmiec’s claim regarding “Senator Obama’s signal of clear and strong support for women who choose to carry a pregancy to term . . .”
When Bill Clinton, a FOCA supporter, entered office in 1993, Planned Parenthood predicted that the FOCA would be law within six months, and they were not alone. The pro-life movement was ultimately able to block the bill in Congress, but only with an enormous effort by NRLC and other pro-life groups, including a campaign endorsed by U.S. Conference of Catholic Bishops that resulted in millions of anti-FOCA postcards being received by members of Congress. Prof. Kmiec’s nonchalence in the face of the threat posed by the FOCA — which, unlike a constitutional amendment, does not require a two-thirds vote — is difficult to understand. And his confidence that the the federal courts would somehow prevent full enforcement of the terms of the FOCA is also puzzling, especially when we consider the ideological bent of the Supreme Court justices that a President Obama could be expected to nominate.
Douglas Johnson
Legislative Director
National Right to Life Committee (NRLC)

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Dr. Ed

posted September 30, 2008 at 8:20 am

Can A Catholic Support Him?
The crucial point, the very center of Professor Kmiec’s argument is that AS A CATHOLIC you can support Senator Obama. His arguments are aimed to justify his personal decision to support the Candidate of his Choice. However, in my opinion his rationale and choice counters the Teachings of the Catholic Church. Which leads me to ask the question: Is Professor Kmiec qualified (morally or otherwise) to explain the Teachings of the Catholic Church?
If –as I believe- he is not qualified or empowered to explain the Teachings of the Church, then this house of cards falls to the floor: Professor Kmiec’s opinions are therefore his ONLY, and they should NOT be considered as a guide to Catholics.
Opinions, like Philosophies or Theological assertions, can be right or wrong, true or false. Who is to tell?
Scientific facts unlike opinions, are observations rigorously tested in a laboratory. So, in this particular case -as decisions are to be made with your vote- I suggest Catholics and non-Catholics alike first educate themselves about the Human Embryo, because this controversy is not about social conditions, or women’s rights, is about Human embryos.
Science teaches that the human embryo (from implantation onwards) is an individual of the human species. This individual will remain the same individual until his or her death (natural or otherwise). The process of development (of which birth is just a landmark) doesn’t end in the delivery room. Further to this, development does not make an embryo or fetus more Human, it makes him/her more developed.
So, it is only now –with the facts at hand- when we can put in context what the word ‘Choice’ in ‘Pro-Choice’ means: it is the willful killing of an individual of the Human Species.
It is only now –with the facts at hand- that politicians can argue and justify (it that is possible) the extermination of millions of individuals. It is only now –with the facts at hand- that a Citizen, Catholic or otherwise, can look at the ballot box and ask him or herself: What at am I doing with this vote?
There are only two candidates: One is Pro-Life. The other, is at the very -very- best Pro-Choice (he believes that to willfully kill a defenseless individual is a valid personal choice).
In reality Senator Obama’s actions in the legislature tell a different story: He is a radical activist committed to supporting abortion in ways that should shock any Citizen.
For instance, while serving in the United States Senate, Obama voted against the Child Interstate Abortion Notification Act (S.403), a bill designed to prevent minors from being taken across state lines without the consent of the parents to have an abortion.
He also voted against the banning of partial birth abortions, and also while serving in the Illinois State Legislature, Obama voted “No” on the Born Alive Infant Protection Package (SB 1661), a bill which would have provided medical care for the surviving fetus (basically denying a merciful death to the baby).
I believe Professor Kmiec has a misguided sense of compassion. Because my parents voluntarily worked for the poor, and because I helped them work for the poor, I can tell you that there are other evils (other than Abortion) in the world.
However, the fact that a politician ‘promises’ us to address those evils does not justify our support for him (or her) if that candidate doesn’t believe that all individuals are equal. The end doesn’t justify the means.
I believe Professor Kmiec opinion is JUST HIS opinion, and should NOT be considered as a guide to Catholics. If Catholics wish to seek Guidance as Catholics I suggest they ask those empowered by Christ to Teach in His Name: The Bishops of the Catholic Church.

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Noodle Beach

posted September 30, 2008 at 9:41 pm

Thank you Dr. Ed. Two additional points:
1) Why so much attention to Douglas Kmiec? Because he was a Reagan/Bush counsel and now supports Obama? That in itself might be interesting but not warrant undue attention. Then we are supposed to especially pay attention to what Mr. Kmiec says about abortion? I guess I don’t understand why this warrants 24 paragraphs on your blog.
2) Smoothing over Obama’s public record as not being “pro-abortion” really strains credulity. Mr. Obama doesn’t want the negative label, he prefers a more moderate euphimism such as favoring ‘abortion reduction.’ But rightly so many will not describe him that way because his legislative actions reveal complete opposition to any legal restrictions on abortion.

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Joe C

posted September 30, 2008 at 9:53 pm

I can’t tell who is saying what here. Kmiec seems to be saying things in bold and in regular print.

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Christopher T.

posted October 1, 2008 at 4:07 pm

It is often attributed to President Lincoln, but whether he said it or not, the point is still valid:
Questioner: If you call a “tail” on a dog a “leg”, how many “legs” does a dog have?
Answer: A dog has four legs. Just because you call a “tail” a “leg”, doesn’t make it a “leg”.
Mr. Kmiec can say all he wants to that it is “an overstatement” to say that FOCA will invalidate all state and local laws regarding abortion, but the plain, obvious, and unequivocal language of Section 6 makes it crystal clear. Many of Mr. Kmiec’s other assertions mimic this same pattern. Mr. Kmiec is severly confused and compromised and needs intervention by his local church.

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posted October 1, 2008 at 4:11 pm

I agree with Joe C.
Look at the following two paragraphs:
Again, “mandate coverage for abortion on demand”? This has never been Senator Obama’s position, which instead:
Accepts the Roe framework, leaving the ultimate decision to the expectant mother, and consistent with language the Senator was instrumental in having added to the Democratic Platform also “strongly supports a woman’s decision to have a child by ensuring access to and availability of programs for pre and post natal health care, parenting skills, income support, and caring adoption programs.”
Whoever is saying this, it needs to be either all in bold or all in regular text. It wouldn’t make sense if it were split between the two writers.

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Katie Mac

posted October 1, 2008 at 5:56 pm

More of “Catholic” Kmiec’s shilling for pro-abort Obama… Calling the Bishops…

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Jack M.

posted October 1, 2008 at 6:08 pm

Please stop using Notre Dame as one of your Catholic credentials. You are an embarassment to the Catholic identity of my alma mater!

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posted October 2, 2008 at 10:29 pm

If “right-to-lifers” such as Douglas Johnson had tom support those who are homeless, lack health insurance, decent paying jobs, “out of his pocket”, he will be THE MOST PRO-ABORRT person the world as ever know. Having read ten versons the the Bible, If have yet to read verson where Jesus Christ discussed when life begins. Jesus Christ said feedd the hungry, clothe the peop;le without clothing, welcome the stranger. No churches in the Pittsburgh area (espially the Roman Catholic) meets that standard.
SAINT Thomas Aquians, said a male fetus gets a soul 40 days after conception, female 80 days.
Perhaps Mr. Johnson and the Catholic Clegy are using a Bible that I don’t have access to.

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Matt Bowman

posted October 2, 2008 at 11:15 pm

Dear Prof. Kmiec,
Thank you for mentioning my article in your latest advocacy for the most extreme supporter of baby-killing ever to run for public office. But you omitted the link: http://spectator.org/dsp_article.asp?art_id=13871 . And I posted another article today: http://spectator.org/dsp_article.asp?art_id=13984 .
My new article is entitled “Obama’s Gift to America: 125,000 More Abortions Each Year.” That’s because Obama’s absolute highest priority, signing FOCA, will strike down every pro-life law in the country, which laws prevent six figures of abortions every year. Meanwhile, the latest studies show, despite Obama’s statement to the contrary, that abortions went down under Clinton and the Bushes both, corresponding to (surprise!) pro-life restrictions on abortion, not Democratic presidential economic policy.
Your view, vaguely arguing that FOCA will leave some pro-life laws in place (how many? you don’t say), is, shall we say, unique. No one at all agrees with you–not the bill’s supporters, not its opponents. You can find proof for that in my latest article. In fact, if there is any common ground in the abortion debate, it is that FOCA will strike down all pro-life laws.
Your speculation that FOCA exceeds Congress’ power is rather odd, given that your beloved candidate ranks FOCA above all his other priorities, and will appoint only radical pro-abortion justices like Justice Ginsburg to decide whether FOCA strikes down the laws that they think are unconstitutional in the first place. But all these positions, and everything Obama has ever said or done about abortion, are odd, are they not, for a so-called abortion reducer?
You describe my first article as being intended to prop up McCain’s pro-life credentials. As is par for the course of your Obama apologetics, that is only partially true, and in a very small way. Instead, both articles, rather effectively, are intended to undermine the credibility of people like you, who argue, against all reason, that choosing Obama over McCain is choosing abortion reduction.
An example of your calculus is illustrated here: in considering abortion reduction, we note that Obama is against government funding of the people who actually fund life choices in pro-life pregnancy centers (and he has pledged loyalty to Planned Parenthood who wants to outlaw them), while McCain proudly supports pro-life pregnancy centers in his platform. The conclusion you naturally draw: Obama is the abortion reducer. I am sure readers here will judge this to be a purely objective assessment on your part.
Your logic is rather like thinking that 1 + negative-99 = 100, because after all, negative-99 need not be considered, since it is negative, but 1 is soooo positive, and after all, 1 has so much in common with 100, does it not, except for those zeros, which of course count for nothing. So Obama is an abortion reducer.
You would state a more honest position, that people might actually consider seriously, if you would just admit that Obama will increase baby-dismemberment, but that you are willing to accept that because you consider other issues more important. But that argument might not be very convincing to Catholics like you and I, so I understand why you do not use it.
I also understand why, in your continuing practice of selectively quoting the least relevant passages of evidence, you omit the following exhortation from Cardinal Rigali last week, on behalf of the USCCB (that bastion of Republican party extremism):
“[T]here is one thing absolutely everyone should be able to agree on: We can’t reduce abortions by promoting abortion. We cannot reduce abortions by invalidating the very laws that have been shown to reduce abortions. We cannot reduce abortions by insisting that every program supporting women in childbirth and child care must also support abortion. No one who sponsors or supports legislation like FOCA can credibly claim to be part of a good-faith discussion on how to reduce abortions.” http://www.usccb.org/prolife/FOCArigaliltr.pdf
So there we have it. The patron of FOCA, the champion of Planned Parenthood, the pro-abortion judge litmus test absolutist, and the opponent of laws that save children born alive, Barack Obama, is the true choice for abortion reduction. Everybody sees it very clearly now. Thank you for helping us along.
Yours truly,
Matt Bowman

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Dr. Ed

posted October 3, 2008 at 9:28 am

There was a time when Philosophers, Politicians, Religious leaders and ordinary people thought that the Earth was the Center of our Solar system.
Galileo came and demonstrated that such was not the case. Philosophers and Theologians and Leaders of the Church were mightily ‘P-O’ with Galileo. Even today I could tell some people that they can choose to believe that the Sun moves around the Earth, or they can move forward and join us in the XXI century (hint: the Earth moves).
In 2008 no politician should be allowed to claim ignorance about basic biological facts. I have repeated here and elsewhere that Political Leaders passing Laws (and ordinary people casting votes) must catch up with Science and become educated about Developmental Biology.
It is a scientific fact that the Human Embryo (from implantation onwards) is an individual of the Human Species. It is also a fact development doesn’t make the individual more Human, it JUST makes him/her more developed. This is because:
In short: It is a fact that from implantation onwards-the individual in the womb will remain the same individual until death.
Therefore, nobody should be able to ignore that the Choice in Pro-Choice is the willful killing of a defenseless individual of the Human Species.
It is only from this true fact that you can determine if abortion is morally right or wrong.
It seems to me that the Catholic Religion has guided Catholics on this issue in a manner that ultimately matches what Science teaches today. Here are some bullet points I shamelessly lifted from the United States Conference of Catholic Bishops. You can read them if you wish to get the Bishops teachings. I already told you what Science says.
In response to those who say this teaching has changed or is of recent origin, here are the facts:
• From earliest times, Christians sharply distinguished themselves from surrounding pagan cultures by rejecting abortion and infanticide. The earliest widely used documents of Christian teaching and practice after the New Testament in the 1st and 2nd centuries, the Didache (Teaching of the Twelve Apostles) and Letter of Barnabas, condemned both practices, as did early regional and particular Church councils.
• To be sure, knowledge of human embryology was very limited until recent times. Many Christian thinkers accepted the biological theories of their time, based on the writings of Aristotle (4th century BC) and other philosophers. Aristotle assumed a process was needed over time to turn the matter from a woman’s womb into a being that could receive a specifically human form or soul. The active formative power for this process was thought to come entirely from the man – the existence of the human ovum (egg), like so much of basic biology, was unknown.
• However, such mistaken biological theories never changed the Church’s common conviction that abortion is gravely wrong at every stage. At the very least, early abortion was seen as attacking a being with a human destiny, being prepared by God to receive an immortal soul (cf. Jeremiah 1:5: “Before I formed you in the womb, I knew you”).
• In the 5th century AD this rejection of abortion at every stage was affirmed by the great bishop-theologian St. Augustine. He knew of theories about the human soul not being present until some weeks into pregnancy. Because he used the Greek Septuagint translation of the Old Testament, he also thought the ancient Israelites had imposed a more severe penalty for accidentally causing a miscarriage if the fetus was “fully formed” (Exodus 21: 22-23), language not found in any known Hebrew version of this passage. But he also held that human knowledge of biology was very limited, and he wisely warned against misusing such theories to risk committing homicide. He added that God has the power to make up all human deficiencies or lack of development in the Resurrection, so we cannot assume that the earliest aborted children will be excluded from enjoying eternal life with God. to
• In the 13th century, St. Thomas Aquinas made extensive use of Aristotle’s thought, including his theory that the rational human soul is not present in the first few weeks of pregnancy. But he also rejected abortion as gravely wrong at every stage, observing that it is a sin “against nature” to reject God’s gift of a new life.
• During these centuries, theories derived from Aristotle and others influenced the grading of penalties for abortion in Church law. Some canonical penalties were more severe for a direct abortion after the stage when the human soul was thought to be present. However, abortion at all stages continued to be seen as a grave moral evil.
• From the 13th to 19th centuries, some theologians speculated about rare and difficult cases where they thought an abortion before “formation” or “ensoulment” might be morally justified. But these theories were discussed and then always rejected, as the Church refined and reaffirmed its understanding of abortion as an intrinsically evil act that can never be morally right.
• In 1827, with the discovery of the human ovum, the mistaken biology of Aristotle was discredited. Scientists increasingly understood that the union of sperm and egg at conception produces a new living being that is distinct from both mother and father. Modern genetics demonstrated that this individual is, at the outset, distinctively human, with the inherent and active potential to mature into a human fetus, infant, child and adult. From 1869 onward the obsolete distinction between the “ensouled” and “unensouled” fetus was permanently removed from canon law on abortion.
• Secular laws against abortion were being reformed at the same time and in the same way, based on secular medical experts’ realization that “no other doctrine appears to be consonant with reason or physiology but that which admits the embryo to possess vitality from the very moment of conception” (American Medical Association, Report on Criminal Abortion, 1871).
• Thus modern science has not changed the Church’s constant teaching against abortion, but has underscored how important and reasonable it is, by confirming that the life of each individual of the human species begins with the earliest embryo.
• Given the scientific fact that a human life begins at conception, the only moral norm needed to understand the Church’s opposition to abortion is the principle that each and every human life has inherent dignity, and thus must be treated with the respect due to a human person. This is the foundation for the Church’s social doctrine, including its teachings on war, the use of capital punishment, euthanasia, health care, poverty and immigration. Conversely, to claim that some live human beings do not deserve respect or should not be treated as “persons” (based on changeable factors such as age, condition, location, or lack of mental or physical abilities) is to deny the very idea of inherent human rights. Such a claim undermines respect for the lives of many vulnerable people before and after birth.

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posted October 8, 2008 at 6:31 am

Wow! How can (Kmiec) be a conservative Republican yet endorse Obama? That seems a paradox in itself. CNN and other media reported Obama as the most liberal senator. Should have picked McCain.
What legislation has Obama done that has supported the pro-life movement. Even if he has all this “talk” about being “pro-life” in any shape or form, then what legislation has he passed? He is simply trying to be politically correct. He voted against the “Born Alive Infant Protection Act,” which shows me how against life he is. These infants were already born (the abortion was not successful), and he is ok for them to suffer in a closet and die.
The whole Obama campaign has been about being politically correct. And now all these “STRONG” pro-life supporters have endorsed Barack Obama.
What will happen now? Will a bunch of people who want TAXES RAISED come to endorse McCain now? I think this cover up of the fact that he is pro-choice is all about the way he is politically correct and knows how to choreograph that political correctness.
Sad, what will this election come to? Should we pretend to be pro-life, yet vote pro-choice? Should we pretend to believe in life, yet vote against it? Is it more Catholic to have this new era of pro-choice? Answer my questions, I ask. I do not get it.

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judy gration

posted October 29, 2008 at 4:10 pm

Well said,
Scott and I who are evangelical pro life Cristians and many of our friends stand with you on this issue. We urge you all to check out http://www.prolifeproobama.com
Find out the truth.

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