Kmiec Agonistes

No supporter of Barack Obama has been clearer on the intrinsic evil of abortion than Douglas Kmiec, former dean of the law school at Catholic University, former official of high rank in the Department of Justice under President Reagan. And no one has gone further, then, in seeking to persuade Catholics that something so deeply wrong in principle should be regarded now, in the scale of things, as not all that important. Not when it can be overridden by the promise of doing something faintly liberal, touched with a friendly view of the human creature. For his friends and former allies, the turnabout has been unaccountable: We strain to understand the rationales he offers, much as he seems to be straining to form them.

In a recent interview with Peter Steinfels of The New York Times, Kmiec was utterly clear about the ground of the moral judgment on abortion:

I fully accept the teaching of the Church that participating in an abortion is an intrinsic evil. My acceptance of abortion as a grave, categorical wrong is one part respectful deference to authoritative Catholic teaching and one part reasoned deduction from our scientific knowledge of genetics and the beginning of an individual life.

He found the moral ground for protecting the unborn child in “what is described as a self-evident truth in the Declaration of Independence, namely, that we have an unalienable right to life from our creator.” But he points out, quite rightly, that even the conservative judges on the Supreme Court have not invoked that understanding from the Declaration as the ground of those rights that the Constitution protects.

Clarence Thomas may stand as a possible exception here. And yet, as Kmiec notes, even the conservative judges see no other course on abortion than overruling Roe v. Wade and sending the matter back to the states. Under those conditions, most people in the country would be within a day’s drive of a state with liberal laws on abortion. I have been among a handful of conservative professors who have argued that the courts could do far more: those human beings in the womb would come under the same protections for their lives that the Constitution casts about other persons, when local governments withdraw from the protections of the law.

In his classic lectures on jurisprudence in 1790, James Wilson pointed out that if we have natural rights, they begin when we begin to be. And so, he said, “human life, from its commencement to its close, is protected by the common law.” From the first stirrings in the womb, that life is “protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

To our considerable discomfort, Kmiec has brought out what has been morally empty, and legally impoverished, in a conservative jurisprudence that cannot speak those words any longer. But then consider what is done with that wrong of abortion as Douglas Kmiec puts things in scale. He knows now that he has, in Barack Obama, a candidate who opposed even the move to preserve the life of a child who survived an abortion. Obama did not flinch from the claim that the right to an abortion is nothing less than the right to make sure the child dies. But Kmiec finds something offsetting and life-enhancing in liberal proposals for the “payment of a living wage, access to health care, stabilizing the market for shelter, special attention to the needs of the disadvantaged.” And yet these are all contingent things: we cannot say that health care would be improved, along with wages and housing, if liberals bring these matters under the direction and control of the government, or whether things would improve far more with policies that give more freedom to persons and markets. The goodness or badness of these things is contingent on circumstances and conditions. In striking contrast, there is something unconditionally wrong in the killing of innocent human beings for reasons that need not rise beyond convenience.

Kmiec has put himself in the awkward position of those hapless characters, the “pro-life Democrats.” They report to us their satisfaction when they get their party to agree to say a good word commending adoption and endorsing measures to help pregnant women. But these mild concessions leave entirely unchallenged the deep orthodoxy: that there is a right to destroy a child in the womb for wholly private reasons, that need never be explained or justified – or judged by anyone else. That is what Douglas Kmiec, I’m afraid, is willing to accept tacitly, but inescapably, as he seeks to recruit Catholics to Barack Obama.

In any honest reckoning, of course, the Democrats would offer no alternatives to abortion that the Republicans have not offered and supplied already – and would supply in even larger measure. Why would Kmiec earnestly hope to receive more from a man who radically rejects the notion that the life in the womb has any claim to our respect? It is not a virtual certainty, but a dead certainty: A President Obama will do on his first day what Bill Clinton did on his. Clinton rescinded the Mexico City Policy, installed by President Reagan and renewed by the second President Bush. That policy barred public funds from any agency in the United States or abroad that performed or promoted abortions. Obama would enlarge the public funding of abortion, to make abortion not a regrettable choice, but a positive good to be promoted and expanded, with any lingering reservations swept away. The Douglas Kmiec we once knew seems barely visible to us in the haze that now sets in between his anchoring moral premises and the kind of conclusions that his reasoning, and his teaching, once stamped as abhorrent.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.