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By Douglas W. Kmiec

5/3/2008 (7 years ago)

Catholic Online (

"To some of my fellow Catholics, Senator Obama's answers on abortion make him categorically unacceptable. I understand that view, respect it, but find it prudentially the second-best answer in 2008."


By Douglas W. Kmiec

Catholic Online (

5/3/2008 (7 years ago)

Published in Politics & Policy

MALIBU, CA (Catholic Online) - In the last few weeks, I have been repeatedly asked if my endorsement of Senator Obama stands.

To some of my fellow Catholics, Senator Obama's answers on abortion make him categorically unacceptable.I understand that view, respect it, but find it prudentially the second-best answer in 2008.

Not because Senator Obama's position on abortion is mine; it is not. Not because I don't believe Senator Obama could improve the articulation of his position; he could, but because I believe that my faith calls upon me at this time to focus on new efforts and untried paths to reduce abortion practice in America.

Senator Obama's emphasis on personal responsibility, rather than legal bickering over potential Supreme Court nominations in my judgment, best moves this issue forward.

The Republican Party has had a better claim to be pro-life because of words in its platform supporting the overruling of Roe v. Wade. Roe is bad constitutional law, because it's not based on the Constitution or any tradition or custom implicit within its terms.

Yet overturning the decision does little other than return the issue to the states. Conservative justice and fellow Catholic Antonin Scalia has pointed out that following Roe's hypothetical demise, if the states want abortion thereafter all they have to do is pass a law in favor of it.

As a matter of constitutional legal theory, I believe Justice Scalia is entirely wrong and that Roe is flawed not just for its displacement of state authority, but more fundamentally, for its disregard of the natural law presuppositions in the Declaration of Independence.

As I see it, the "self-evident truths" of the Declaration have interpretative significance for the meaning of "life" and "person" in the constitutional text -- and that meaning makes life unalienable, which means each life from conception is unique and worthy of constitutional protection.

Were Senator McCain to be of the same mind, he would be pro-life. As it is, he and the GOP are pro-federalism, which is not a bad thing, but frankly, at this late date, insufficient.

Thus, as I see it, it is a choice between two less than sufficient courses:

(a) the continuation of an effort to appoint men and women to the Court who are thought willing to overturn Roe through divisive confirmation proceedings that undermine respect for law and understate the significance of non-abortion issues in a judicial candidate's evaluation; or

(b) working with a new president who honestly concedes the abortion decision poses serious moral issues which he argues can only be fully and successfully resolved by the mother facing it with the primary obligation of the community seeing to it that she is as well informed as possible in the making of it.

It is a prudential judgment which course is more protective of life. Had three Republican presidents over 20 years in office not tried course (a), it might be a close question. As it is, we know that following course (a) has met with little success, and again, even if fully successful will do little more than bolster the possibility that some number of states will make abortion legally less available

I do not understand Senator Obama to be pro-abortion, though if we had an extended conversation on this topic, I would ask him to more carefully parse the topic. Asked at the recent faith forum at Messiah College whether he believed life began at conception, Obama said he has not "come to a firm resolution" on the question.

That's a mistake that any geneticist could clear up for him. Openly, he posited that he thought it is "very hard to know . . . when life begins. Is it when a cell separates? Is it when the soul stirs? So I don't presume to know the answer to that question."

There's some humility in this answer, but it also mixes science and theology and tangles up life and personhood to boot. In fairness, however, it typifies the larger public confusion. Most importantly, it is an answer free of guile or political calculation. "What I [do] know," said the Senator, "is that there is something extraordinarily powerful about potential life and that has a moral weight to it . . . ."

Indeed, it does, and he accompanied his candid observation with a critique of himself and his party. It is a "mistake," Obama said "to try to tamp down the moral dimension to abortion," for do to so understates that it is "a wrenching choice for anybody to think about." On Meet the Press some time ago, he stressed the importance of involving the clergy in the counsel of a mother.

Obama briefly mentioned adoption as a means of reducing abortions at the faith forum, and I encourage him to speak more at length about that sound, practical affirmation of life. But where he looks for the greatest agreement and greatest opportunity to reduce the number of abortions "is on the idea of reducing unwanted pregnancies because, he reasons, "if we can reduce unwanted pregnancies, then it's much less likely that people resort to abortion.

The way to do that is to encourage young people and older people, people of child-bearing years, to act responsibly. Part of acting responsibly - I've got two daughters," Obama proudly points out - "part of my job as a parent is to communicate to them that sex isn't casual and that it's something that "should be treated with reverence."

As a Catholic my instruction to my daughters will likely be different than my Jewish or Protestant or Islamic or non-believing friends. Like Senator Obama, "I'm all for education for our young people, encouraging abstinence until marriage."

Unlike Senator Obama, as a matter of faith, artificial contraception is off my list, and I have carefully discussed with my daughters why a contraceptive practice that the larger culture accepts subtly undermines that which ought not be divided; namely, the unitive and procreative aspects of human love within marriage.

Senator Obama supports a wider range of age-appropriate contraceptive information to prevent unmarried, teen pregnancies, and since he would be proposing legislation for the entire community and not merely my household or people of my faith, certainly one can understand that perspective even if one might argue with it or insist upon appropriate religious exemption in a public school setting.

The so-called "95-10" legislative proposal (proposing to reduce abortion by 95% over 10 years largely by educative means) seems well-suited to the Senator's perspective, and I have encouraged him to embrace it in principle. I hope he does, but it's not an endorsement breaker so long as he is true to himself and encouraging of personal responsibility, rather than the codification of the abortion mentality which some in the extreme wing of his party advocate.

This much I know:

If it's a choice between giving a boost to the work of my fellow parishioners who week after week in thinly-funded, crisis pregnancy centers, open their minds and their hearts and often their homes to pregnant women (and Obama has spoken approvingly of faith-based efforts) and a Supreme Court Justice to be named later who may or may not toss the issue back to the states, I think I know which course is more effectively choosing life.

As anyone who's ever had a conversation with a pregnant woman thinking about abortion knows, good, evenhanded information and genuine empathy and love save more children than hypothetical legal limits - which, as best as I can tell, have saved: well, zero.

Of course, there are many more reasons to affirm my original endorsement of the Senator, including his willingness to:

•Transcend the politics of division - so well illustrated on any given day by the unfortunately base tactics of the Clinton or McCain campaigns (see the recent GOP ad in North Carolina once again dredging up Reverend Wright)

•Commit us toward a course of environmental stewardship that will not be dependent upon fossil fuel

•Focus tax and health policy reform in favor of the average working family and the poor

•Reaffirm an American foreign policy respectful of international standard

•And end an unjust, preemptive war - another obvious life issue -- that deprives families of some of our most self-sacrificing yet often least advantaged young men and women and drains our economy in a 3 trillion dollar fashion, crippling our practical ability to be the force for human good that Americans want their country to be.

Chair & Professor of Constitutional Law, Pepperdine University; fmr Constitutional Legal Counsel to Presidents Reagan and George H.W. Bush and fmr. Dean & St. Thomas More Professor of Law, The Catholic University of America; fmr Director, The White Center on Law & Government, University of Notre Dame, 1980-99.


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