Interview with Doug Kmiec by Eric McFadden in response to Right to Life Criticism on “Abortion Reduction Scam”

Recently Deal Hudson published a statement by Doug Johnson– Legislative director of National Right to Life, where Johnson and Hudson refer to abortion reduction as a “scam“. I recently went over the fine points with Doug Kmiec, an authority on this issue in his own right in the following interview.

Eric McFadden: Doug Johnson – Legislative director of National Right to Life and some others have suggested that “Abortion Reduction” is a “scam” used by Democrats to gloss over the issue of abortion with Catholics. They believe that you create the impression that Obama will merely preserve the legal status quo on abortion, while creating a token government handout for women experiencing crisis pregnancies. These folks are convinced that an Obama administration will simply increase the numbers of abortions performed.

Doug Kmiec: First, as I indicate in my book Can a Catholic Support Him?  Asking the Big Question About Barack Obama, my endorsement of Senator Obama has from the beginning indicated places where this conservative Republican disagrees with the Senator, and we disagree on the Freedom of Choice Act (FOCA) which I oppose, and indeed, believe in its current form exceeds the power of Congress.  Second, to the extent FOCA is believed to mandate the public funding of abortion, and that is not explicit,  I would oppose that as well.

That said, while the Senator and I are in disagreement, it does not dim my enthusiasm for his presidency since I believe for the first time we will have a president who genuinely intends to address the poverty and anxiety that in the vast majority of cases determines a woman’s decision.

Second, I greatly respect Doug Johnson and his work in behalf of life.  In this regard, he has been in this vineyard long enough to know that there is a meaningful difference between pro-abortion and pro-choice.  Indeed, in Senator Obama’s case,  it is more aptly a difference between criminalization and compassion, or to be even more fair to the approach advocated by Mr. Johnson, regulation and restriction or the encouragement of a responsible exercise of freedom.

In any event, Senator Obama has never been pro-abortion, and is not now.

Eric McFadden: Some have claimed that Obama advocates repeal of the Hyde Amendment? — and he would enact national health care that would also mandate coverage of abortion on demand.

Doug Kmiec: Again, “mandate coverage for abortion on demand“? 

This has never been Senator Obama’s position, which instead accepts the Roe framework, leaving the ultimate decision to the expectant mother, and consistent with language the Senator was instrumental in having added to the Democratic Platform also “strongly supports a woman’s decision to have a child by ensuring access to and availability of programs for pre and post natal health care, parenting skills, income support, and caring adoption programs.”

Eric McFadden: Abortion opponents have argued that Obama will not renew the Hyde Amendment. 

Doug Kmiec: As Doug Johnson indicates, the Hyde Amendment is renewed year by year.  Even were the Freedom of Choice Act (FOCA) to pass, and even if my doubts about its unconstitutionality were determined to be unfounded, Congress has it well within its power to renew the Hyde Amendment after FOCA, which by well-settled, last-in-time interpretative principles would keep the abortion funding limitation in place.  What’s needed is what has always been needed, a convincing and legislatively winning argument that on balance public funding for abortion wrongly implicates the taxpayer in what many citizens, including me, see as a moral wrong.

I have not discussed this with him at great length, but I imagine that Senator Obama views health care funding as something that as much as possible should be governed by the needs and determinations of a patient and the patient’s doctor, and it is this nondiscrimination principle, which convinces him that just as public funds should be available for pre and post natal care so too a woman’s choice to bear a child cannot be coerced under criminal or regulatory penalty. 

Given that FOCA in one form or another has been stalled in Congress since 1989, arguably, FOCA’s fate will be more determined by the electoral outcome in Congress than the presidency.

Eric McFadden: Johnson and others point to a quote from Senator Obama: “The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.” – they express the same fear that state laws would be nullified by the Freedom of Choice Act.

Doug Kmiec: Again, I believe this to be overstatement, both in light of the preemption principle noted above and the underlying constitutional doubt about FOCA derived from well-settled law that Congress lacks authority to redefine constitutional rights and liberties.  A Supreme Court that some years ago denied Congress’ ability to enact into law as against the states a super-protection of religious liberty is likely to have the same reservations, maybe more given the sensitive and controversial nature of the abortion subject.

Eric McFadden: Johnson has pointed out that Obama has also voted directly against parental notification requirements twice.  He also refers us a study of Cardinal Rigali’s regarding the Freedom of Choice Act.

Doug Kmiec: I fully accept the teaching of my church.  That teaching, including the thoughtful letter from Cardinal Rigali, indicates that “in recent months, the national debate on abortion has taken a turn that may be productive.  Members of both parties have sought to reach a consensus on ways to reduce abortions in our society.”  While his Eminence finds this consensus emerging especially on the regulatory front, I do not read his letter as denying the possibility of consensus by means of improved support for women in poverty and who are often alone and isolated. 

Quite the contrary, the Cardinal himself notes, quite consistently I might add with the perspective of Senator Obama (though, appropriately of course, the Cardinal does not mention any political figure by name), that “because many women have testified that they are pressured toward abortion by social and economic hardships, bipartisan legislation providing practical support to help women carry their pregnancies to term, . . . deserves Congress’s attention.”  

Senator McCain’s history here is curious.  On the one hand, the Senator voted in favor of amending those eligible for the State Children’s Health Insurance Program (SCHIP) to include the unborn-while voting against legislation to expand SCHIP’s coverage to low-income children and pregnant women at least six times.

Eric McFadden: Johnson and others have been critical of your claim that Republican office holders have not achieved a “Human life Amendment”. In their critique, they claim that Constitution does not give a president any formal role in the constitutional amendment process.

Doug Kmiec: Yes, constitutional amendments depend on the initiative of members of Congress, like that which Senator McCain could have undertaken – but did not — during his almost 30 years occupying public office.

Eric McFadden: Johnson has stated that “Obama even advocates repeal of the national ban on partial-birth abortions, which the U.S. Supreme Court upheld in 2007 on a 5-4 vote.“

Doug Kmiec:  It is we
ll known that Senator Obama has clearly stated on numerous occasions his support for restrictions on late term abortions.  Indeed, Senator Obama has identified the need to draft a clearly defined health exception, the responsible narrowing of which Doug Johnson and I – and perhaps the entire right to life community — have been advocating for decades.

Eric McFadden: In a statement Johnson wrote: “Finally: Kmiec has written elsewhere of the personal work that he and his wife have done in assisting women who are experiencing crisis pregnancies, which is certainly commendable. Crisis pregnancy centers (CPCs) across this nation help many, many women each year, and save the lives of many children. Before Kmiec speaks again about Obama’s purported commitment to “abortion reduction,” perhaps he should reflect on the question put to the Obama campaign by RHrealitycheck.org, a prominent pro-abortion advocacy website — “Does Sen. Obama support continuing federal funding for crisis pregnancy centers?” The Obama campaign’s official response was short, but it spoke volumes: “No.””

Doug Kmiec: Continue funding?  The counseling centers known to me and my spouse have not had the benefit of such funding.  Must be hard to get.  Anyway, Senator Obama’s signal of clear and strong support for women who choose to carry a pregnancy to term offers the kind of complementary assistance that will hardly impede crisis pregnancy centers.  And that’s the thing, you have to have the funding for pre and post natal care, income support and parenting skills before you can help anyone in the context of a crisis pregnancy center or otherwise.  And as I see it, only Senator Obama has made this clear.  All McCain-Palin have is platform rhetoric about finding “new ways to empower,” which is really rather tired, old verbiage more likely to mean embarrassingly little.