Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 5, 2008

Teresa Collett responds to Doug Kmiec on Obama and Abortion

MOJ friend, Professor Teresa Collett writes:

Doug Kmiec has been a good friend to me for many years, often giving wise
counsel.  Therefore I am reluctant to publicly contradict him, yet
conscience compels me to do so in light of his encouragement of Catholic
voters to support Senator Obama.  In doing so, Doug suggests that Catholics
ignore Senator Obama's clear statements and record regarding abortion.

Senator Obama opposes the federal partial-birth abortion ban that was upheld
by the Supreme Court in Gonzales v. Carhart, and has announced his desire to
pass the Freedom of Choice Act, a proposed law that would largely enact Roe
v. Wade as a matter of federal statutory law.  Even Senator Clinton, a
staunch defender of abortion, has merely stated that she "will sign" the
Freedom of Choice Act, and Senator McCain, if elected president, would veto
such legislation.

It seems that Doug has forgotten the lessons of presidential politics
learned in the process of passing the partial-birth abortion ban.  President
Clinton repeatedly vetoed federal partial-birth abortion bans,
notwithstanding clear majorities in both legislative chambers supporting the
bill.  In contrast, President George W. Bush proudly signed the ban when
presented to him.

Unlike Doug, Senator Obama sees the potential to appoint pro-Roe Supreme
Court justices as a major issue in the election, and seeks to appeal to
voters on that basis.  "With one more vacancy on the Supreme Court, we could
be looking at a majority hostile to a women's fundamental right to choose
for the first time since Roe v. Wade. The next president may be asked to
nominate that Supreme Court justice. That is what is at stake in this
election."  Obama, Barack, Obama Statement on the 35th anniversary of Roe v.
(Jan. 22, 2008).

Doug suggests that Catholics should disregard the abortion issue, since he
views it insufficient reason to vote for a President, who will merely
appoint justices likely to return abortion to the political process, the
position of Senator McCain.  At least four states - Arkansas, Louisiana,
North Dakota and South Dakota - have laws making abortion largely illegal as
soon as federal policy permits. Two more states - Illinois, and Missouri -
have passed laws declaring the state's intention to criminalize abortion.
Seven additional states have prohibitions that would be immediately
effective. While protecting the unborn in every state is certainly
preferable to protecting them only in thirteen states, it is irrational to
argue that we should not seek to protect unborn children in thirteen states
since we can not protect them the other thirty-seven states.

Also, it is important to remember the other presidential powers impacting
the practice of abortion.  Executive orders have insured adherence to (or
disregard of) the "Mexico City Policy," requiring nongovernmental
organizations to agree as a condition of their receipt of Federal funds that
such organizations would neither perform nor actively promote abortion.
Executive orders have insured that abortions are not performed on US
military bases, and have insured that federal family planning funds are not
used for abortion counseling.

The president appoints his or her cabinet members who, as members of the
executive branch, exercise substantial influence on federal policy regarding
abortion. The Attorney General of the United States is charged with
defending the laws of the United States from constitutional challenge.  A
lukewarm defense of laws seeking to restrict or regulate abortion can be
deadly both to the laws and those the laws are designed to protect. The
Secretary of Health and Human Services directs the Centers for Disease
Control and Prevention, which accumulates information regarding the
incidence and effects of abortion.  The Secretary of State advises the
president and represents the United States in matters related to foreign
affairs, including the impact of proposed treaties and actions within the
United Nations regarding the international law of abortion. These are just a
sampling of the decisions that the president and members of the executive
branch make, which impact the prevalence of abortion in our country and the

I confess that I am disappointed by Doug's professed confidence that Senator
Obama is conflicted on the issue of abortion in light of the senator's clear
statement and legislative record.  None of us have the ability to judge the
secret yearnings of any person's heart, yet our moral obligation to exercise
practical wisdom in discerning a candidate's future actions, and vote
accordingly, requires Catholics to accept Senator Obama's statements and
actions at face value.  As the United States Bishops remind faithful
Catholics, "A Catholic cannot vote for a candidate who takes a position in
favor of an intrinsic evil, such as abortion or racism, if the voter's
intent is to support that position. In such cases a Catholic would be guilty
of formal cooperation in grave evil."  I fail to see adequate countervailing
moral considerations that would suggest that a vote for Senator Obama is
anything other than a vote for continued judicial protection of abortion.


Scaperlanda, Mike | Permalink

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