Doug Kmiec Responds to National Right to Life

In 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.