WASHINGTON — Few events in recent years have caused as much consternation among pro-life Catholic Americans as Doug Kmiec’s Easter Sunday endorsement of Barack Obama.

After all, the presumptive Democratic presidential nominee has earned a 100% pro-abortion voting record during his political career in the Illinois and U.S. Senates.

And Kmiec is a pro-life Catholic law professor at Pepperdine University who made his name in the Reagan administration, at Notre Dame University and at The Catholic University of America.

Father Richard Neuhaus, editor in chief of the journal First Things, says Kmiec has it wrong.

“He has now become a voice for Catholics who wish to back for president a candidate who has a long history of unqualified support for the unlimited abortion license imposed by the Roe v. Wade decision of 1973,” Father Neuhaus said in a commentary for the Register about Kmiec’s arguments (see complete commentary, page 12.)

And on the presidential campaign trail, Obama recruited a Planned Parenthood official to campaign on his behalf in New Hampshire, and he earned the endorsement of NARAL Pro-Choice America over rival Hillary Clinton, despite Clinton’s own solidly pro-abortion credentials.

Obama has also made the promise that “the first thing I’d do as president is sign the Freedom of Choice Act,” a bill that if enacted would prevent any federal, state or local government entity from restricting access to abortion. It would strike down virtually every state law on abortion. The stated aim of this legislation is to “end the abortion wars,” by allowing abortion-on-demand in all nine months of pregnancy for any reason and without any restrictions nationwide.

This would eradicate state and federal laws that the majority of Americans support — such as requirements that licensed physicians perform abortions, fully-informed consent, and parental involvement — and prevent states from enacting similar protective measures in the future.

Kmiec, for his part, has solid credentials as a politically knowledgeable, pro-life Catholic lawyer. Currently a law professor at Pepperdine, he previously served as dean of The Catholic University of America’s law school and as a law professor at Notre Dame.

And in the political realm, Kmiec provided constitutional counsel to Republican Presidents Ronald Reagan and George H.W. Bush from 1985-1989 while serving as assistant attorney general in the Office of Legal Counsel in the U.S. Department of Justice.


So why is Kmiec supporting Obama despite the Democratic candidate’s position on abortion?

In an article posted Easter Sunday on Slate.com’s legal blog “Convictions” announcing his endorsement, Kmiec stated he believed Obama to be “a person of integrity, intelligence, and genuine good will.”

Kmiec acknowledged that he and Obama “may disagree” on some “important fundamentals,” including Kmiec’s belief as “a Republican and as a Catholic” that “life begins at conception, and it is important for every life to be given sustenance and encouragement.”

But, Kmiec said, “I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.”

In an e-mail interview with the Register, Kmiec elaborated about why he believes Catholics can vote for Obama.

Kmiec said it was wrong to characterize Obama as pro-abortion despite his perfect pro-abortion voting record and his campaigning on an abortion-rights platform with the endorsement of NARAL and leaders of Planned Parenthood.

“No, those who are pro-abortion, as I see it, are those who advocate the practice as a matter of fundamental right or as part of a radical feminist agenda that takes no account of the moral weight or significance of unborn life,” Kmiec said.

According to Kmiec, neither Obama nor presumptive Republican nominee Sen. John McCain has a truly pro-life stand on abortion, despite the Arizona senator’s strongly pro-life voting record on abortion.

Kmiec said both candidates are actually “pro-choice” since Obama believes the decision should be left to the pregnant mother whereas McCain’s position isn’t that the federal government should outlaw abortion, but instead that the matter should be returned to the state level by reversing the 1973 Roe v. Wade decision that legalized abortion nationally.

Kmiec even suggested Obama’s position is more in keeping with Church teachings than McCain’s.

“From a standpoint of subsidiarity and prudence, one can make an argument that the Obama position is preferable since it does not arrogate to a higher level that which can be done more effectively below in direct relationship with the mother,” Kmiec said.

Father Neuhaus said it was “disingenuous” for Kmiec to argue Obama and McCain have morally equivalent positions on abortion and that Obama might actually be closer to Church teaching regarding the sanctity of life.

“The candidate who would return the abortion question to the states so that citizens working through their elected representatives can enact laws protecting the unborn is, in taking that position, pro-life,” Father Neuhaus said. “The candidate who, by supporting Roe v. Wade, would deny to citizens that opportunity is ‘pro-choice.’ It is a great disservice to try to obfuscate such an obvious distinction.”

Kmiec said that it’s not accurate to say the U.S. bishops have instructed American Catholics to place abortion ahead of other issues when considering who to vote for, even though the bishops’ November 2007 “Faithful Citizenship” document states Catholic voters should ask political candidates how they plan to “address the preeminent requirement to protect the weakest in our midst — innocent unborn children — by restricting and bringing to an end the destruction of unborn children through abortion.”

Said Kmiec, “With respect to the bishops’ own statement, it would be mistaken, for example, to rank racism below abortion or vice versa, since they are both held out as intrinsic evils.”

Father Neuhaus said Kmiec fails to understand that not all intrinsic evils are equally grave and that abortion, unlike racism, is the key social issue in contemporary American politics.

“The intentional killing of a member of the human family — which is what happens in every abortion — is the most pressing social justice question of our time,” said Father Neuhaus. “Mr. Kmiec’s candidate advocates an unlimited right to abortion.”

Judges Don’t Matter

Kmiec has also argued that it’s not particularly important that Obama has promised to nominate only pro-abortion-rights judges to fill Supreme Court vacancies.

“Senator Obama’s emphasis on personal responsibility rather than legal bickering over potential Supreme Court nominations, in my judgment, best moves this issue forward,” Kmiec said in a May 3 Catholic Online commentary.

Kmiec told the Register that when Obama met June 10 with him and about 30 religious leaders in Chicago, Obama reaffirmed his desire to “to reduce the incidence of abortion” by policies such as encouraging responsible sexual behavior, discouraging unwanted pregnancies and promoting adoption. And Kmiec said that while he has dedicated himself personally and professionally “for the past several decades” to the goal of confirming Supreme Court judges who would overturn Roe v. Wade, this approach “just has not proven very effective.”

University of Notre Dame law professor Rick Garnett responded to Kmiec’s arguments about judicial appointments in a commentary posted June 9 on the Mirror of Justice blog.

“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,” Garnett said.

And in another June 16 posting on the Mirror of Justice blog about Kmiec, Garnett said that while it’s true that overturning Roe would not end abortion by itself and that there are ways to reduce abortions that do not involve overturning the 1973 decision, “the fact is that President Obama will sign legislation and issue executive orders that remove currently existing regulations, that undermine conscience-protections and religious-freedom protections for hospitals and health-care professionals who do not wish to participate in abortion, and that use public funds to pay for abortions and embryo-destroying research.”

Tom McFeely is based in Victoria, British Columbia.

Where They Stand: The Candidates and The Issues

The Iraq War

Obama: Campaign opposed invasion. Promises withdrawal in 16 months.

McCain: Voted for invasion and funding. No withdrawal until Iraq stable.


Obama: Supports same-sex adoption. Helped kill Marriage Amendment. Opposes Defense of Marriage Act.

McCain: Helped kill Marriage Amendment. Supports Defense of Marriage Act.


Obama: Opposes torture of U.S. detainees.

McCain: Opposes torture of U.S. detainees.

Embryonic Research

Obama: Voted to fund stem-cell research. Supports clone-and-kill research.

McCain: Voted to fund stem-cell research. Opposes clone-and-kill research.