Doug Kmiec Responds to National Right to Life

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:

SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH PROHIBITED.

(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;

or

(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:

SEC. 3. DEFINITIONS.

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)
www.nrlc.org
legfederal--at--aol-com

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.

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.

More of "Catholic" Kmiec's shilling for pro-abort Obama... Calling the Bishops...

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.

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:
IT IS NOT AN EMBRYO DEVELOPING INTO HUMAN, BUT A HUMAN EMBRYO DEVELOPING.

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.

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 www.prolifeproobama.com
Find out the truth.