Doug Kmiec is at it again. His most recent Obama propaganda piece is titled ''Why Archbishop Chaput's Abortion Stance Is Wrong.'' As far as we can tell, Kmiec, a legal scholar who identifies as pro-life, has never written an article titled ''Why Senator Obama's Abortion Stance Is Wrong.'' We await such an article. In the meantime, Kmiec has offered a pro-Obama reply to Archbishop Chaput's wise counsel that Catholics vote with a view to securing the equal protection of the law for all people, born or unborn. Kmiec's answers to the Archbishop can be divided without remainder into three categories: the irrelevant, the false, and the fallacious. Exposing their failure shows that the pro-life case against Obama is decisive.
Kmiec observes that voting for a candidate need not imply support of all his positions. He also notes that neither presidential candidate's policy ''guarantees absolute legal protection to human life'' and that overturning Roe v. Wade would not directly save the 1.2 million American lives killed by abortion each year.
Of course, neither Archbishop Chaput nor anyone else has denied these points, which are irrelevant. Catholics, as well as others, know better than to seek panaceas in any policy or saviors in any leader this side of paradise. We doubt that Archbishop Chaput expects abortion or any other crime to cease before the world does. The real question is whether society has an obligation in the meantime to protect the unborn against the crime of feticide, or instead to sanction it, widen its availability, and even fund it while purporting to address its deeper causes. McCain supports the former, while Obama supports the latter. It is true that overturning Roe would not completely restore justice to the unborn, but it would remove a grossly unjust and otherwise insurmountable obstacle to their legal protection, something that ethical principles—and Church teaching—require.
Protection in Law
Kmiec denies this, insisting that his disagreement with Chaput ''is not over the essence of Church instruction which gives primacy to the promotion of human life, but rather, the preferred means of implementing it.'' But this is patently false.
A fundamental principle of Catholic social teaching—and any sound political philosophy—is that all members of the human family possess inherent and equal dignity, and deserve the protection of the law. This applies regardless of sex, race, or creed, but also regardless of age, size, stage of development, or level of dependency. Chaput affirms this principle. Kmiec equivocates—at best. Obama denies it.
Indeed, Obama's record shows that he denies it more forcefully than any major politician in American history. Princeton legal philosopher Robert P. George has spelled it all out: Obama opposes the Hyde Amendment, which restricts taxpayer funding of abortions in the U.S., and the Mexico City policy, which bars the use of federal taxes for abortions overseas. He has promised to sign the Freedom of Choice Act (FOCA), which abortion-rights advocates themselves say would ''sweep away hundreds of anti-abortion laws [and] policies,'' including parental-involvement and notification requirements, mandatory pre-abortion counseling and ultra-sounds, late-term abortion restrictions, and even conscience protections for health-care providers.
Obama opposed the Supreme Court's decision to uphold a ban on partial-birth abortion and has promised to appoint only pro-Roe justices to the Supreme Court, calling abortion a constitutional right essential to women's equality. As a state senator, he even opposed legislation (which the U.S. Senate passed in identical form by a 98-0 vote) to protect children who are born alive after failed abortions.
Addressing Root Causes
Kmiec maintains that Obama endorses ''alternative social and cultural support for expectant mothers.'' As a matter of rhetoric, this might be true; as a matter of record, it too is demonstrably false. Obama has not endorsed the Pregnant Women Support Act, a bill sponsored by Democrats for Life aimed simply at making it easier for women to choose alternatives to abortion. Obama has even opposed this bill's extension of health insurance to unborn children and its provision that women considering abortion be informed of possible health risks and the gestational age of their child. He also favors stripping federal funding from pro-life crisis pregnancy centers that provide counseling and financial support for thousands of women.
Kmiec also claims that more lives would be saved under Obama's policies than under McCain's. Unsurprisingly, this is belied by the evidence.
First, a President Obama would likely sign into law a bill he co-sponsored as senator that would sanction the mass production by cloning of embryonic human beings for research and effectively require their subsequent destruction. This bill alone—which McCain opposes—would multiply the killing of tiny human beings on an industrial scale.
Ignoring this, Kmiec focuses on abortions, claiming that ''empirical study confirms abortion reduction through the Obama cultural and economic assistance course of action.'' He asserts—but provides no reference to show—that generous social welfare programs ''have significant impact in the reduction of abortion.''
In fact, precisely the opposite is true. As political scientist Michael J. New has demonstrated, such programs have been shown to have next to no effect at all. But pro-life legislation—limited after Roe to modest measures like informed-consent and parental notification laws and public-funding restrictions—have dramatically reduced abortion rates. Obama would eliminate all of these laws. After examining the empirical evidence, Dr. New concludes:
The number of abortions has fallen in 12 out of the past 14 years and the total number of abortions has declined by 21 percent since 1990. These gains are largely due to pro-life political victories at the federal level in the 1980s and at the state level in the 1990s which have made it easier to pass pro-life legislation.
Indeed, NARAL Pro-Choice America has lamented that just the denial of public funds for abortion ''forces about half the women who would otherwise have abortions to carry unintended pregnancies to term.'' In other words, NARAL estimates that Obama's policy of public funding could double abortion rates. If Kmiec has reliable evidence to the contrary, let him produce it.
Roe Shouldn't Go?
Kmiec faults Archbishop Chaput for suggesting that our vote in the presidential election should be guided by each candidate's likely Supreme Court appointments. Kmiec argues that this legal-judicial pro-life approach has not worked in the past and relies on uncertainties about the timing and number of upcoming Court vacancies.
This particular set of claims is a hybrid of falsehoods and fallacies. But let us isolate the latter. Never mind that abortion-rights activists fear a McCain presidency because they see as clearly as anyone—except, apparently, Doug Kmiec—that it could mean a fifth vote to overturn Roe. Never mind that the four justices that think Roe was wrongly decided were appointed by Republican presidents.
It is clear that Kmiec's argument that we should abandon the legal recourse because it has not yet been perfectly effective is a non sequitur. For if our forbears had accepted this logic, then the pro-slavery Supreme Court case of Dred Scott v. Sanford would never have been nullified by the Civil War constitutional amendments abolishing slavery and extending to all persons in the United States the right to the equal protection of the laws. And the pro-segregation case of Plessy v. Ferguson would never have given way to Brown v. Board of Education. Politicians and voters would have been admonished to fight instead the root causes of slavery or segregation, surrendering hope of changing the law of the land on either matter.
But we can isolate a still deeper fallacy underlying Kmiec's central thesis about the justifiability of voting for a pro-choice candidate. Put aside for a moment all of Kmiec's falsehoods—about the extent of his disagreement with Church teachings, Obama's putative support for alternative ways to reduce abortion, the purported effectiveness of those alternatives, the supposed ineffectiveness of legal remedies that McCain endorses, and whether Obama's policies would really reduce the number of sanctioned killings of nascent human beings. In fact, assume against the evidence that Kmiec is right about all of these matters of contingent fact.
What about his argument that Church teaching—including Pope Benedict's stated views on the matter—would leave room for a principled defense of a vote for Obama? Is Kmiec right to claim that there can be reasons to vote for a pro-choice candidate over a pro-life one that are proportionate to the possibly unintended harms of doing so?
Notre Dame legal scholar Gerard Bradley provides some helpful thought experiments to guide us in applying the Golden Rule as a proportionality test: What if it were not unborn babies being denied legal protections, but some other class of people? If 1.2 million American women a year were being killed by abusive husbands, he asks, would we vote for a candidate who was ''pro-choice'' about the ''private'' matter of lethal domestic violence but favored addressing its root causes (say, with anger-management classes and education)?
Or suppose some candidate favored protecting a "right" to kill hundreds of thousands of mentally handicapped or infirm people each year. Even if we thought his views superior to his opponent's on issues like foreign policy, the economy, and health care, would we be justified in voting for him?
Given Obama's record, we can even strengthen the analogies: What would we think of a candidate who favored financially supporting legalized domestic abuse or extermination of the unwanted?
Of course, some would object that the cases are different because unborn human beings do not enjoy the same moral status as the rest of us. But this would be to deny the principle of basic human equality that Kmiec claims to accept and that defines his intended audience, faithful Catholics and other pro-lifers. So every pro-life citizen should see the radical unsoundness of his argument that there are proportionate reasons to accept the publicly funded and sanctioned killing of unborn human beings when another candidate would remove obstacles to their legal protection.
Professor Kmiec's response to Archbishop Chaput is a textbook study in shoddy reasoning. He has placed red herrings, baseless factual claims, and glaring non sequiturs in the service of a conclusion whose logic would be laughable if it did not threaten countless innocent lives: that the most pro-abortion politician in American history would be a blessing for the unborn. Barack Obama offers the unborn no hope to believe in but much change to deplore. Doug Kmiec offers Barack Obama cover for his assaults on the sanctity of human life.
Ryan T. Anderson is editor of Public Discourse. Sherif Girgis is a 2008 Rhodes Scholar studying moral, legal and political philosophy at Oxford University.