Douglas Kmiec, legal counsel to President Reagan and George H.W. Bush and former dean of Catholic University, is out with a new book, Can a Catholic Support Him? Asking the Big Questions about Barack Obama (read an excerpt). Kmiec talked to God-o-Meter about what provoked a Republican pro-life advocate to write a book-length endorsement of the Democratic nominee for president.
It wasn’t how I set out to spend my summer. But I went to a meeting with Senator Obama and other faith leaders in June in Chicago and I was so impressed by the manner in which he handled that meeting–the length of time he spent with each of us, the way he answered questions and his open-minded approach and his answers on the life topic that I put to him. As I left the meeting it occurred to me that the reasonable thing to do would be do so some writing about it. I began writing essays that were syndicated in my column for the Catholic News Service, as op-eds in The Chicago Tribune and Slate, and all the writing generated a large amount of return email. I found myself individually answering emails at all hours of the day. That was the genesis of the book, to do wholesale what I was doing retail.
That must have been some meeting in Chicago.
It was my first face to face meeting with him. He opened by saying that everything he was going to tell us was on the record, that we could repeat it anywhere we liked. There were cameras outside the building but he said he knew those gathered in the room were not supporters and might be antagonists and that they might be uncomfortable being seen with him. So he said he’d maintain the confidence of anything they said in that meeting and also the maintain the confidence of whether they participated in the meeting. Comparing that to the existing political administration that has thrived on secrecy and closed circle of advisors, it was marvelously refreshing.
The second thing was that I was deeply impressed with the sense in which he got tough questions and not once was he angered or flustered or provoked. He frequently would turn it around and ask three of four questions that would illustrate the division in his own turn of mind and would inevitably find something in agreement in which the exchange could end. I’ve seen a lot of public figures and most of them spend five or ten minutes talking to you and take a picture and leave. Senator Obama came at 1:30 and I remember looking at my watch and it was 5:30 and he showed no sign of inching toward the door. And there was no camera inside.
Was the Obama campaign involved in writing the book?
I was probably about halfway done with it when I had a conversation with the religious outreach director and they asked me if I’d seen these Catholic voter guides that seemed to be saying that Catholics could not support Obama. The guides suggested that if you were for someone who wasn’t for reversing Roe v. Wade, cross that person off your list. And that seemed to dovetail with things that were being written about me personally, saying that abortion and stem cell research and marriage were “non-negotiables.” I know the church gives primacy to the question of life, and understandably so–everything flows from it. But the church is clear that you could support a pro-choice candidate if one had proportionate reasons. The American bishops were very careful in their Call for Citizenship document about the importance of Catholics having a comprehensive understanding of their faith and how the language of the culture of life deals with all aspects of life. So it’s fundamentally concerned with how working people are treated. Are they treated as capital assets or as people whose work is entitled to dignity and respect and paid a fair wage. How the environment is treated…
Was the Obama campaign worried that the book might scare off Catholic voters because it would be seen as a challenge to the Catholic church?
[The Obama campaign] has a natural desire not to pick a fight–it’s not in the interest of any campaign to raise unnecessary disagreements. On the other hand, they weren’t at my shoulder as I was writing. As an academic, I wouldn’t have allowed them to… But they knew I had a great frustration with those who have called themselves pro-life and do nothing. I’ve grown frustrated with my own political party. We’ve had substantial majorities in the House and Senate and we’ve owned the White House for eight years and I’ve never seen anyone do anything on the Human Life Amendment [the constitutional amendment that would ban abortion]. And I became quite familiar with the undeniable information from the Centers for Disease Control and others that there is a positive correlation between poverty and the rate of abortion. If the economic circumstances of a woman in poverty is addressed directly there is a good chance she will make the right choice in choosing life.
Coupled with that is my personal experience. My wife and I have become increasingly involved in counseling women in college who are confronting an unwanted pregnancy. They come to us in confidence and are going to have an abortion because ‘I can’t talk to my parents–it would disappoint them’ and they are often in great anxiety. And together my wife and I are able to calm those anxieties and take them apart one at a time. I’ve seen how effective this is, if you can provide some tangible assurance that they can continue in school, if you help them find a job or temporary housing, if you can put them in touch with parishes that have resources that assist them with maternity needs, they choose life. Not every time, but most of the time. I began to look at the ledger and said, “I’ve asked the Supreme Court five times to overturn Roe, and each time they gave me the back of the hand. I’ve testified before Congress against the Freedom of Choice Act and in favor of the Partial Birth Abortion Ban. I can’t count the times I’ve been before the Judiciary Committee and all of it pales in comparison with my wife’s and my experience.”
There’s a Catholic notion of subsidiarity: that the government’s role is to help the person make the right direction. It’s not the government’s role to come in and displace the person but to help the individual help themselves. And the person speaking that language is not John McCain–it’s Barack Obama. He was the one talking about prenatal care and funding for maternity leave and rebuilding the adoption process so it’s far less costly. The other side was not saying any of those things. Late in the day I hear, “Well of course [McCain’s] interested in that, too” but most of the conversation I hear on the other side is “until we get the law changed, we can’t do anything on the topic”. And the legal issue becomes like an iron curtain that falls in front of the social gospel, as if it cannot be touched until this flaw in the legal system is addressed.
But the pro-life movement has made incremental progress over the years: the Hyde amendment preventing federal funding for abortion, the “Mexico City policy” preventing U.S. funds supporting abortion abroad, the federal partial birth abortion ban, the appointment of conservatives like John Roberts and Samuel Alito to the Supreme Court.
Sam Alito and John Roberts are the best part of what you mentioned. I am certain that the mistake that Roe represents–the invention of a right out of something that doesn’t exist, won’t occur on their watch. That said, I don’t know what those two will do with Roe if it’s asked to be considered again. I don’t think it’s 100-percent sure or even close to predictable that they would reverse the case because they are so committed to rule of law, to the principle of stare decisis. Both were careful in their confirmation proceedings not to make any commitment on that score. But they will not make the situation worse, and that is an incremental improvement. On the other issues, like the Hyde Amendment or use of federal funds abroad for purposes to contradict the ethic of life, that’s true. But it’s also longstanding, not attributable to this administration in any way.
What about the Partial Birth Abortion Ban Act of 2003?
The Supreme Court decision in Gonzales [upholding the act in 2007] upheld the law on its face; it does not say anything about how the Court will consider the matter when it’s applied in a context in which there is a bona fide health need. That’s how Kennedy wrote the opinion. Yes, it’s an important development. But it’s one that people should not overstate. Another reason to be cautious is that the Virginia has passed a comparable partial birth limit and the Fourth Circuit Court of Appeals has invalidated it… that decision will likely be petitioned to go en banc and then to the Supreme Court and at that point we’ll have a better view as to whether the court really made progress in Gonzales. I don’t mean to begrudge the achievement, but people say the Court banned the procedure, end of sentence. That’s not what they did. They upheld the law on its face while waiting for another day to decide whether it could be upheld on constitutional grounds.