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Doug Kmiec: Between Barack and a Hard Place

[Cross-posted on Southern Appeal]

Pepperdine Law Professor and prolife legal scholar, Doug Kmiec, has announced that he is endorsing Senator Barack Obama for the U. S. presidency. I have learned so much from Professor Kmiec's clear and persuasive academic writings, and very much appreciate his contributions to the study of jurisprudence. For this reason, I have been disappointed by his less than compelling apologetic for his presidential endorsement. Consider, for example, these recent comments by Kmiec about a meeting he and others had with the Illinois Senator (HT: Carl Olson, Insight Scoop):

The discussion dwelt at some length on abortion. Obama said he earnestly wants to "discourage" the practice—despite the distortions of some who think if they affix the "pro-abortion-won't-overturn-Roe-label" to the senator, pro-lifers like myself won't give him the time of day. Sorry, good friends, not this year.

Not to understand that there is more than one rather indirect and elusive judicial way to address an intrinsic evil understates the ingenuity of the devout. Describing the abortion decision as a "difficult, deeply moral one," Obama sees it as one only the woman can make. Unless her choice affirms life that is not my Catholic view, and I told him so. But disagreement or not, it is abundantly clear from our conversation that Obama shares a common aspiration to reduce the incidence of abortion.

How? Obama is committed to encouraging "responsible sexual behavior," discouraging unwanted pregnancies, promoting adoption as a more viable, affordable and appealing option than it presently is, and putting off limits in a manner consistent with the law as the justices see it, late-term abortion. Obama will not exclude abortion from medical coverage to fulfill a health exception "rigorously defined."


Professor Kmiec neglects to mention that Senator Obama, while in the Illinois legislature, refused to vote for a law that would require the protection of babies that survive abortions (similar to the federal "Born Alive Infant Protection Act), that the senator aggressively disagreed with the Supreme Court's opinion to uphold a federal ban on partial-birth abortions (Gonzales v. Carhart [2007]), that the senator would not if he ascends to the presidency appoint judges or justices who would on principled grounds reject the logic of Roe v. Wade that excludes without exception all the unborn from the moral community, and that the senator would consider his own infant grandchild as "punishment" if any of his two daughters had conceived the child without the explicit intent to bring a baby into being.

Given the overwhelming evidence that Senator Obama's understanding of life, parenthood, the human person, and pregnancy are inherently hostile to the prolife position on these matters, what can possibly account for Professor Kmiec's infatuation with the Illinois lawmaker? It seems to me that the only way to explain the cognitive dissonance of an otherwise stellar mind is that Professor Kmiec has never really had a good conceptual grasp of what the prolife position actually is. It is not about "reducing the number of abortions," though that is certainly a consequence that all prolifers should welcome. Rather, the prolife position is the moral and political belief that all members of the human community are intrinsically valuable and thus are entitled to protection by the state. "Reducing the number of abortions" may occur in a regime in which this belief is denied, and that is the regime that Senator Obama wants to preserve. It is a regime in which the continued existence of the unborn is always at the absolute discretion of the postnatal. Reducing the number of these discretionary acts by trying to pacify and/or accommodate the needs of those who want to procure abortions--physicians, mothers, and fathers--only reinforces the idea that the unborn are objects whose value depends exclusively on our wanting them. So, ironically, there could be fewer abortions while the culture drifts further away from the prolife perspective.

Consider this illustration. Imagine if someone told you in 19th century America that he was not interested in giving slaves full citizenship, but merely reducing the number of slaves. But suppose another person told you that he too wanted to reduce the number of slaves by granting them the full citizenship to which they are entitled by nature. Which of the two is really "against slavery" in a full-orbed principled sense? The first wants to reduce slavery, but only while retaining a subhuman understanding of slaves as part of our juridical infrastructure. The second believes that the juridical infrastructure should reflect the truth about slaves, namely, that they are in fact human beings made in the image of their Maker.

Just as calling for the reduction of the slave population is not the same as believing that slaves are full members of the moral community and are entitled to protection by the state, calling for a reduction in the number of abortions is not the same as calling for the state to reflect in its laws and policies the true inclusiveness of the human family, that it consists of all those who share the same nature regardless of size, level of development, environment or dependency.

(I have offered an extensive argument for the prolife position in my recent book, Defending Life: A Moral and Legal Case Against Abortion Choice [Cambridge University Press, 2007])

Comments (46)

I consider Kmiec's position risible, as I expressed in my "What is a Vote" post. While you're listing evidence of Obama's fanatical support for the culture of death, here's another one:

http://www.lifesitenews.com/ldn/2008/jun/08061010.html

Anybody remember the FOCA, that almost went through under Clinton? It apparently would even overturn state parental consent laws, waiting periods, informed consent laws, and so forth, the _only_ state legislation on abortion that has been allowed by the SC. _That's_ how Obama proposes to "reduce" abortions. Yeah, right. Kmiec's position is beneath contempt. You are certainly right that it doubtless arises from a lack of understanding of the pro-life position. I would guess that one could also throw in a certain amount of general liberalism, a bit of fashionable almost-pacifism, some white guilt, and a dollop of despair.

Oh, and what's a Kmiec, a Catholic, of all people, doing lauding the code words "responsible sexual behavior" which means in liberal-speak "using condoms"?

Reducing the number of these discretionary acts by trying to pacify and/or accommodate the needs of those who want to procure abortions--physicians, mothers, and fathers--only reinforces the idea that the unborn are objects whose value depends exclusively on our wanting them.

Excellent formulation.

Oh, and what's a Kmiec, a Catholic, of all people, doing lauding the code words "responsible sexual behavior" which means in liberal-speak "using condoms"?

Shameful. I say this as a Catholic: For Catholics, Kmiec's public support for Obama and his defense of his position on abortion is an embarrassment, a stumbling block, and a scandal.

"The first thing I'd do as president is sign the Freedom of Choice Act," Obama said in his July speech to abortion advocates worried about the increase of pro-life legislation at the state level.

The Freedom of Choice Act (FOCA) is legislation Obama has co-sponsored along with 18 other senators that would annihilate every single state law limiting or regulating abortion, including the federal ban on partial birth abortion.


This only strengthens my resolve to oppose his candidacy for president.

Of course, there are those who would delude themselves into thinking that endorsing such a candidate is not immoral as well as those who actually believe that taking positive measures to prevent such a presidency (which most assuredly would bring about such a deadly blow to the Pro-Life movement) is equally immoral.

Essentially, the question becomes whether we are willing to risk the likelihood of such an ominous event by allowing Obama to collect the votes necessary towards his portentous ascension while we merely "sit it out" and basically do nothing to prevent it.

Obama wants to reduce abortions? That's a laugh. His idea is to push condoms - but that INCREASES abortions, because it increases stupid immoral behavior and the natural consequences of such behavior. He wants to reduce abortions perhaps in the same way Hitler wanted to reduce crimes against Jews - by eradicating Jews, there won't be any crimes against them, will there?

Suffice it to say that any "solution" Obama gives on this issue will make matters worse, not better.

I share your concern, Aristocles. I'm tempted to set up shop in a battleground state this fall to campaign against Obama.

"I share your concern, Aristocles. I'm tempted to set up shop in a battleground state this fall to campaign against Obama."

Interesting way to phrase it and indicative of why you will no doubt be very unhappy with things in November.

Perhaps Prof. Kmiec's perspective is influenced by other considerations. Check out the Physicians for Human Rights site and "http://bloggingheads.tv/diavlogs/12019"

Tony, contraception works. My grandmother had seven children, spaced two years apart and then she died. None of her offspring chose to duplicate her experience.

Tony, contraception works [to reduce the number of abortions].
<irony>Yeah, Tony. Didn't you know that the rate of abortion has gone down since the Griswold decision?</irony>

"It seems to me that the only way to explain the cognitive dissonance of an otherwise stellar mind is that Professor Kmiec has never really had a good conceptual grasp of what the prolife position actually is."

Yes. In this piece, Kmeic attempts to justify his position but he gives his hand away...

Catholic instruction provides that “a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals.”

That obviously would preclude a Catholic voter from supporting a referendum providing public funding for abortion, but what about a candidate like Obama who is not pro-abortion, but of the view that the civil law best leaves this question to the mother in consultation with their own clergyman and doctor?

Of course Kmeic endorses Obama. He's pro-choice.

Among adults responsible enough to use it, contraceptive can greatly lower the possibility of pregnancy. But using those limited examples and claiming it "works" for society has created a culture that treats people as disposable, babies as destroy-able, and reduces the beauty of sex to a transitory, physical act.

America regards sex like I regarded espresso when in Italy -- it's cheap, you can get it anywhere, and it's over in a matter of minutes. Of course, I never expected the barista to "call me," nor did I have to turn the other way if I saw him/her around town.

As for Sen. Obama, he may indeed desire to discourage abortions. Would be nice, however, if he backed up that concern with an occasional action. Among my acquaintances who are somewhat under his spell, a quick description of the "Induced Infant Liability Act" (which he supported in 2002) is enough to get them off the fence and sprinting vigorously behind the Straight Talk Express.

In the end, Sen. Obama's concern about abortion looks like my exercise plan -- an occasional desire for improvement, a failure to take even the smallest action, and a wish that the issue would just go away.

"As for Sen. Obama, he may indeed desire to discourage abortions."

Is that why the first thing he's going to do as president is sign the Freedom of Choice Act, an act that "would annihilate every single state law limiting or regulating abortion, including the federal ban on partial birth abortion"?

"...a candidate like Obama who is not pro-abortion..."

It's enough to make one weep. If Obama is not pro-abortion, who is? Nobody, right? What politician _ever_ says, "Oh, yes, I'm pro-abortion"? But Obama is _fervently_ in favor of the pro-death agenda. The whole ball 'o' wax.

A fine mind? I predict we will see Kmiec's mind showing other inconsistencies and confusions as time goes on. Not that I read him enough to verify my prediction. But a good strong dose of self-deception is a serious form of mind-poison.

Completely off topic, but: Would you happen to know whether any epistemologists have written on the epistemology of self-deception? My question is serious.

Doug Kmiec will win the New York Times "Strange New Respect" Award and enjoy a turn or two on the Op-Ed page this fall, but come January wind-up as an irregular contributor to Vox Nova penning essays entitled "When Enough is Enough - The Catholic Case for Population Control" and "St. Thomas More Reconsidered"

ROFL, Kevin!

Good question, Maximos, and the answer is that I don't know. I know quite a bit has been done in ethics (but only within the outskirts of my ken) on false conscience, but that's not really the same thing. I'll ask around.

Doug Kmiec will win the New York Times "Strange New Respect" Award and enjoy a turn or two on the Op-Ed page this fall, but come January wind-up as an irregular contributor to Vox Nova penning essays entitled "When Enough is Enough - The Catholic Case for Population Control" and "St. Thomas More Reconsidered"

Perhaps Kevin will finally emerge from his mother's basement at that point too.

Now, now. Kevin's remark was fairly hilarious, give credit when its due.

Back on topic: Kmiec notes at the end of his post that he was denied Communion for supporting Obama. Of course I have heard plenty of stories about candidates being threatened with denial of Communion based on the decision of the local bishop and whatever, but this is the first time a supporter has ever been denied that I know of. Granted that I don't follow the minutia of Catholic proceedings, but isn't this something new?

Granted that I don't follow the minutia of Catholic proceedings, but isn't this something new?
The chaplain who did it was acting on his own personal impetus, as far as I know, without any sanction or authority. To all appearances he helped Kmiec by doing so, at least politically, since Kmiec now gets to publicly play the misunderstood martyr, and has not resisted the temptation to do so. The incident would not be public at all if Kmiec had not himself made it public, as far as I know.

M.Z., I dare not venture upstairs, let alone outside, until you and Morning's Minion have so completely re-fashioned her, that it can truly be said;"The Catholic Church is the Obama Adminstration/The European Union Agency for Human Rights in prayer". Mom's about to slide dinner under the door (she makes the best meatloaf), so I gotta go, but given the almost supernatural resistance to your project, I expect to be here awhile. Thank God for the internet, air-conditioning and pull-out couches.

Step2, the action taken in Kmiec's case is a spiritual act of mercy and occurs, although all too infrequently, when high-profile communicants give serious scandal.

I would think (I, too, am not up on all the relevant rules) that a Catholic priest has the option to refuse Communion without getting special authorization. Speaking for myself, if it isn't presumptuous in a Protestant to do so, I applaud the chaplain. And that despite the use Kmiec has made of it. There are--at least so Catholics themselves believe--some pretty serious metaphysical and theological issues involved that go well beyond the question of whether the would-be communicant will make political use of his self-styled martyr status.

Here is one canon lawyer's take on the relevant rules.

Hmmm, when Kmiec obstinately persists in it, as he surely will, sad to say, the only one of the canon lawyer's criteria there'll be left to argue about is whether the sin is grave.

To all appearances he helped Kmiec by doing so, at least politically, since Kmiec now gets to publicly play the misunderstood martyr...

Zippy,

I hardly think that the purpose of the chaplain in denying Kmiec communion was to help him politically.

Just because Kmiec (and those of his ilk) had managed to utilize the incident for their political gain doesn't implicate the chaplain even in the very least; in fact, if anything, the subsequent actions of Kmiec et al and their treatment of the incident appear more like a pivot manuever in my estimation than anything else.

"Canon 915 indeed authorizes withholding Communion from those who (a) obstinately, (b) persevere in (c) manifest (d') grave (d'') sin. But about the only thing Kmiec is (so far) is manifest."

A high-profile lay-person who has held important and prominent positions and is in the position to influence countless others, bears an extra responsibility in this regard. A priest's first concern is saving souls, not ensuring a robust Sunday collection from a comfortable flock. Given the gravity of the offense, the chaplain deserves praise for his fidelity. Let us hope Kmiec will look back at the experience with gratitude and see it for what it is; a badly needed warning.

Al: "...you will no doubt be very unhappy with things in November."

Really? Have you gained access to a crystal ball?

Kevin,

Let me know when you find a canon lawyer who believes the chaplain applied canon 915 properly. I've seen enough of this debates where I can tell you that it isn't even a borderline case. If you review Archbishop Burke's article on Canon 915, you will see what this chaplain has done is completely opposed to what he has written. Word has it Cardinal Mahony had some words for the chaplain and they weren't, "Well done."

I hardly think that the purpose of the chaplain in denying Kmiec communion was to help him politically.
I would not suggest that it was. Nevertheless it was I think an unintended consequence. (Indeed, by making the matter public it seems to me that Kmiec did precisely that which he criticizes, that is, exploitation of the Eucharist for political ends. The very concept gives me the willies).

M.Z.,
Putting myself in Kmiec's position, I know I'd be shaken to the core and forced to consult not a canon lawyer, but my spiritual advisor and examine my conscience. I hope that occurs here and stand by this chaplain for showing us the meaning of genuine compassion. At this moment in history, the definition of what it means to be human is under an intense, perhaps fatal assault. There is little room for the kind of sophisticated argumentation that we all like to take refuge in. Kmiec is taking a very, very dangerous path and has been forewarned. Pray for him.

As for Roger Mahoney, I suspect "Hollywood's Chaplain" wants this priest removed from the general population. Much like the action he didn't take against the child-abusers he elected to protect and hide from the law. I'd like to say it is charity that prevents me from saying more, but it's not. It's the sheer disgust and anger that wells up inside that gives me pause. And yes, I felt the same way, actually worse over Cardinal Law, since his betrayal cut deeper and was closer to home.

Your willingness to calumny one of highest ranking cardinals in the country belies your confession that an illicit denial would result in a deep examination of conscience. After I told you that your proposition would not be seriously entertained by anyone knowledgable in the area and actually pointed you to the document of an Archbishop who has been the most forthright in advocating denial of communion that clearly indicates how contrary this act is to proper application of the law, you still had the arrogance to not only maintain that your belief was within the realm of possibility but that it was the only legitimate interpretation. Wake up!

"Your willingness to calumny one of highest ranking cardinals in the country..."

Over 500 million in damages, invocation of 5th Amendment rights and suppression of his own testimony from going public. I'll let the public record speak for itself;
http://www.bishop-accountability.org/ca-la/
http://www.laweekly.com/news/news/cardinal-untruths/1101/

"you still had the arrogance to not only maintain that your belief was within the realm of possibility..."

The only realm I'm interested in is the spiritual one. Let me ask you directly; do you think someone arrives at a decision like the one Kmiec has taken, while praying the rosary, attending daily Mass and participating in Eucharistic adoration? Be honest.

He is more than misguided when he tries to square supporting a man who has promised to sign the Freedom of Choice Act into law with his own personal obligation to live the Gospels.

You have tried every clever dodge and offered every tortured rationalization to justify a compromising act which lacks any spiritual support.You can invoke no Saints, nor cite any passages from the Catechism, Encyclicals, or Magisterium to buttress your case. It is arrogance that allows you to place your own partisan political preferences over the teachings of the Church, and guilt that compels you to seek affirmation for your decision, by issuing nonsensical screeds.


I assume MZ Forrest will defend Kmiec's support for Obama, including its consistency with both of their fully committed Catholicism, since it is the same as his own. He has made this clear on his own blog, in so many words. I don't have time to look up the link, but it's easy enough to find.

I have actually criticized Kmiec's arguments, although I'm working to be more patient with people who don't make the right argument the first time. I don't really see a need to defend his Catholicity on the basis of an endorsement of Obama for President. Those that believe endorsing Obama is an act of schism or apostasy are not really worth debating. One can certainly believe supporting Obama is the wrong choice. One can believe that supporting either candidate is the wrong choice. I disagree with both opinions. I'm not entering into relativism, because I do believe their is a right choice, even if I'm ultimately wrong on it.

What then does actively endorsing an enthusiastic pro-abortion candidate in direct contradiction of Church teaching constitute? A mere difference of opinion over incidentals?

To be in communion does not mean simply filling the pews on Sunday. Instead, it requires thinking with the Church on all matters. It can be painful, and only an active prayer life and frequent recourse to the sacraments makes it possible for most of us. Private judgement, calculated political strategems and mental gymnastics coupled with moral self-assurance are stumbling blocks and lead literally to Nowhere.

An error in premise leads to an error in conclusion. Endorsing a candidate is not a direct contradiction to Church teaching. Endorsing candidates is being an active part of the political process, something we are duty bound to be.

You keep saying "thinking with the Church" without the least sense of irony. Having called Cardinal Mahony and Archbishop Burke insufficiently Catholic, I don't see how you can maintain this facade.

Your sophistry ahs reached new lows. Obama's entire public career has been marked by an ethusiastic support of a great social evil. Church teaching, which you never cite in your bizarre arguments, calls us all to resist, not electorally cooperate with thsoe who promulgate abortion.
http://www.ewtn.com/vote/Catholic_Politicians/index.asp

I never called Archbishop Burke insufficiently Catholic, but why let that stop you. I did call Mahoney an accomplice to horrible crimes. Or do you think he behaved in a transparent, forthright way? Given the shared moral continuum of sexual abuse and abortion, I guess I shouldn't be surprised of your fact-free defense of Mahoney.

You sir, argue in bad faith and actively misrepresent Church teaching, the contentions of your opponents, resort to crude rebuttals ("f-off") and admit to censorsing those with whom you disagree. I believe you to be a bully whose mission is to sow discord amongst prolifers and dissent amongst Catholics.
I have no doubt you will fail in your objectives.

It is spelled M-a-h-o-n-y. Get it right. Please do forward a letter to Cardinal Mahony, and try to spell his name right, and your bishop that you reject communion with him.

Those that believe endorsing Obama is an act of schism or apostasy are not really worth debating.
I quite agree with that. After all, adultery, murder, and torturing puppies are also not acts of schism or apostasy.

We'd better be able to say a lot more than "not an act of schism or apostasy" before we consider an act morally licit, let alone prudent.

M.Z. Forrest,

As a matter of respect for you (and, for that matter, Kevin), I wanted to recuse myself from your spat with him; however, could it possibly be (even if subtly) that your devotion to Obama may perhaps be blinding you to the fact that such endorsement for blatantly evil acts as that of abortion is an act that by itself, regardless of the applicability of church law (which I will not go into and is, for all practical purposes here, besides the point), deserves censure?

My support for Obama is contingent and certainly isn't devotion. My support for him is solely to get us out of Iraq and keep us from commiting attrocities in Iran. If he manages to do that and the Republicans manage to nominate someone sane, I will most likely lend my support to the Republican.

The construction that Kmiec endorsed Obama therefore he endorses abortion is a poor construction, especially considering the protest Kmiec has offered that he is not in fact endorsing for his abortion views. Although I hope Obama repents of his support of abortion, I have no issue condemning his views as the evil that they are. Just because you vote or endorse someone doesn't mean you are marrying them. For myself and I'm sure kmiec, we believe we should take what we can get now and see what opportunities are available in the future.

On a side note, I don't expect you or anyone else to step inbetween Kevin and I. I shouldn't engage in the guilty pleasure I sometimes do with him.

For myself and I'm sure kmiec, we believe we should take what we can get now and see what opportunities are available in the future.

M.Z. Forrest,

If you will forgive the formulation (but I see no other delicate way of putting it other than to represent its reality), do you really believe in "we should take what we can get now and see what opportunities are available in the future" even if it should mean the ultimate and irrevocable sanction of abortion with the presidential signing of the FOCA by Obama? In that case, the "what opportunities are available in the future" would be moot as the repercussions of such a portentous act would most certainly instantly obliterate the Pro-Life movement in toto.

FOCA is not the "ultimate and irrevocable" sanction of abortion. Well, the former I suppose could be true, but still strikes me as hyperbolic. As to the latter, FOCA could be revoked as easily as it could be passed.

As to the latter, FOCA could be revoked as easily as it could be passed.


M.Z. Forrest,
As true as that may be in the limited sense, I hardly think anybody could (or even would) in the future do so once the signing of such an act (as heinous as it is) ultimately transpires.

The fact is that even now, certain politicians dare not commit themselves fully to the Pro-Life position because of the majority of the American public who, by and large, are pro-choice either genuinely or by consequence (e.g., adherents to precedence).

Once something as this indulges the animal appetites of not only the liberals but also the general public, I hardly imagine any professional politician coming to office in the distant future (especially given that politicians are ever conscious of their own political well-being) ever undoing that which would then be deemed something so unpopular and even politically fatal.

"As to the latter, FOCA could be revoked as easily as it could be passed."

Uh, so?

And you could also raze Auschwitz. That doesn't make it okay to build it, obviously.

Kmiec is publicly supporting Obama because he wants a job in a new administration. Judgeship. Something.

Seems blindingly obvious to me - same with all the other "Obama Catholic Advisory Council."

Resumes in hand, they pimp their faith.

As for self deception, Alfred Mele has a fairly recent book on it.

"Christians" are voting for Obama for lots of silly reasons. Optimism, sophistry, promises of lots of free stuff, and the chance to prove that they really aren't racists. I can't tell you how many African-Americans I've run into or know who are suprised that "whites" aren't as racist as they thought. Ya think?

Obama (ironically) is not pro-abortion if slave owners in the South weren't pro-slavery. Let us face facts. Most Christians are ignorant and lazy. Their churches are lax in church discipline and simply do not recognize discipline from other bodies to a significant degree. The moral, and I mean actual habituated activities, not ideas rolling around in heads, situation won't change until churches enforce at least a moderate degree of discipline on their members. I write this as an Orthodox Christian who watches 2/3 of his parish waltz into the Divine Liturgy 45 minutes late every Sunday and still presume to present themselves unconfessed for the Eucharist while the clergy do nothing about it.

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