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, June 9, 2008

Kmiec on Catholics, abortion, the Court, and the election

I saw my old friend Doug Kmiec on campus at Notre Dame today, which reminded me that I needed to grumble a bit about his most recent "Catholic Online" column, in which he discusses (again) the much-discussed question, "for whom should Catholics who embrace the Church's teachings on abortion vote?"

First, the (unfortunately) obligatory preface:  Neither Doug Kmiec nor anyone else should (or, I would think, may) be denied communion merely for supporting Sen. Obama's campaign rather than Sen. McCain's.  And, it is, I take it, the case that faithful Catholics can -- and many do -- believe that, given all the givens, the right course is to support Sen. Obama (or Sen. McCain) over Sen. McCain (or Sen. Obama).  In this context, I think we have (and Doug has) the "right to be wrong".

That said, Doug's column goes off course in a few places, I think.  He writes:

Given that abortion is an intrinsic evil without justification, thinking the overturning of Roe “solves” the abortion problem, when it does not, can mislead Catholics into the erroneous conclusion that any candidate unwilling to pledge reversal of Roe is categorically unworthy of support.

Yes and no.  True, overruling Roe does not, by a long shot, "solve" the abortion problem.  It would, however, do two very important things:  (a) It would solve another, serious, problem -- namely, it would undo the major error that was Roe, thereby improving the state of our constitutional law (about which Doug cares quite a bit); and (b) it would make it possible for We the People, acting through our legislatures, to take measures that might, bit by bit, "solve" the abortion problem.  The fact that overturning Roe does not, by itself, end abortion does not change the fact that the persistence of Roe effectively removes abortion from the arena of legislative (even if only incremental) action and compromise.  Doug writes:

Senator Obama’s position accepts the existing legal regime which leaves the abortion decision with the mother as a “constitutional right.” Senator McCain's position would leave the decision with the individual states. Neither position is fully pro-life, both are pro-choice, with the former focused on the individual and the latter focused on the right of the states. Senator McCain's position is sometimes described as pro-life, but in truth, it is merely pro-federalism (states being free under the McCain position to decide to permit or disallow abortion as they see fit).

But this is not quite right.  Sen. McCain's position is not (merely) pro-"the right of the states" or pro-"federalism"; it is pro-"the right of the People" to try to promote the common good through law.  Sen. McCain, unlike Sen. Obama, also supports a wide range of federal policies that regulate abortion and protect the consciences of pro-life citizens.  Doug continues:

Independent of my Catholic faith, as a constitutional law teacher, I respectfully disagree with both Senator Obama and Senator McCain since the Constitution was intended as a means to enforce and guarantee the unalienable right to life recited in the Declaration of Independence, where of course it is explicitly traced to our Creator. Since neither candidate presents a position fully compatible with Catholic teaching recognizing abortion for the intrinsic evil that it is, Catholic teaching asks us to work for the reduction of the incidence of abortion through the most prudent way possible.

I am also a constitutional-teacher and, independent of my Catholic faith, I think that the Constitution probably does not, in fact, require governments to outlaw or regulate abortion.  In any event, it *is* compatible, it seems to me, with Catholic teaching to have the view (as McCain does) that the Constitution permits (but does not require) We the People to legislate in accord with Catholic teaching, by regulating abortion (and banning capital punishment, and welcoming immigrants, etc., etc.).  And, even if one thought that McCain's view was not "fully compatible" with Catholic teaching, it is not clear why one should regard him as, in effect, in a "tie" with his rival, whose views on *this* question seem quite *in*-compatible with Catholic teaching.  Doug then says:

There is no single answer on the most effective manner to reduce abortion either. My experience, and that of others whom I greatly respect for their tireless efforts in parish work and with Project Rachel and Catholic pregnancy centers, suggest that Senator Obama’s emphasis on personal responsibility (conveying especially to young people the need to understand the maturity and commitment needed for sexual intimacy) is the course most likely to make a difference.

This statement surprises and disappoints.  One gets used to pro-abortion-rights advocates tossing around the charge that pro-lifers are single-mindedly focused on legal prohibitions (or only on the welfare of unborn children) rather than on in-the-trenches outreach to the needy and vulnerable but, as Doug knows full well, this is an unfair caricature.  *Of course* those of us who oppose abortion should engage in these "tireless efforts" and emphasize "personal responsibility".  It hardly follows that we shouldn't care about fixing (or, at least improving) the law, or should be indifferent to the prospect that, under President Obama and Speaker Pelosi, the laws of the Nation will almost certainly move dramatically in a pro-abortion-rights direction.  Finally, Doug writes:

it is my own conclusion that Senator Obama would be more open to these considerations since he is more dedicated toward reducing the partisanship of the past, has very responsibly and very consistently called upon our better natures, and has articulated -- long before he sought the presidency -- a genuine appreciation for the importance of faith in the public square.

Here, I suppose there's not much to say.  I do not believe the *evidence* supports the conclusion either that Sen. Obama is less "partisan[]" than Sen. McCain or that Sen. Obama appreciates more than does Sen. McCain "the importance of faith in the public square."  (I have, I realize, publicly endorsed McCain, and so might be suspect here, but it seems worth recalling the serious political risks that McCain has taken by *not* being "partisan" on many issues.)  To say this is not to say that Sen. Obama is a bad person or deny that there is something exhilarating about a youthful, African-American major-party candidate; it is just to doubt -- his charisma notwithstanding -- that he's meaningfully different, in his plans and policies and views, than other left-liberal American politicians.

In conclusion . . . re-read the preface, above.


Garnett, Rick | Permalink

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