Matthew J. Franck, Radford University

During the 2008 presidential campaign, Pepperdine law professor, constitutional scholar, well-known Catholic conservative, and former Reagan Justice Department official Douglas W. Kmiec notoriously parted ways with his old Republican friends after the end of Mitt Romney’s candidacy for the GOP nomination, and endorsed Barack Obama for president. He went on to campaign for Obama and even to write a quickie book, Can a Catholic Support Him? – a question Kmiec answered, happily and with evidently little soul-searching, with an emphatic “yes.”

What brought Kmiec’s words and deeds such widespread notice was that he was not just another “pro-choice” Catholic who vocally dissents from the Church’s teaching on the sanctity of human life. He declared at the time, and maintains to this day, that he is a pro-lifer, and he professes his devotion to the Church’s teachings. And Kmiec did not go in for any finely-honed judgment about whether he could support Obama for “proportionate” reasons notwithstanding the candidate’s pro-abortion record and his stated views. Repeatedly he desired the world to believe that he supported Obama not despite the fact that he (Kmiec) is pro-life, but because he is. Obama’s policies, you see, on health care, and the economy, and various social policies aimed at aiding the poor, would, Kmiec averred, have such an effect in reducing the numbers of abortions that the Democratic candidate was the better choice even for the “single issue” pro-life voter. To my knowledge, he never offered any plausible evidence to support this prediction. But that didn’t slow him down. Couple this unsupported assertion with other issues – such as ending a war that Kmiec suddenly declared to be unjust after his preferred candidate in the Republican primary season, Mitt Romney, who had supported the Iraq war, lost the nomination to fellow war supporter John McCain – and the whole Obama package was, he assured us, well-nigh irresistible for Catholics (and others) concerned about the preservation of human life.

Naturally enough, Kmiec’s high-profile departure from Republican ranks, and his declaration that one could be a staunch pro-lifer and yet support the most extreme pro-abortion candidate for president ever nominated by either major party, caused great consternation among Catholics and other pro-lifers. He came in for a good deal of criticism, some of it quite sharp. Now he has taken to the pages of Commonweal magazine to justify himself, and it’s a decidedly strange performance. He is in full “victim mode.” Kmiec writes more than 3,200 words, and devotes most of them to lamenting the vituperation he suffered at the hands of his “online tormentors” in the “right-wing Catholic blogosphere.” Some of the “vilification” he quotes in his article is mild stuff by internet standards (take it from one who blogs for a national magazine and is grateful it has no “comments” section for readers); some of it is not vilification at all, if words like “mindless” or “immoral” or even “apostasy” are the conclusions of arguments rather than ejaculations. But grant that Kmiec has been upbraided by some people who have lost their tempers. It is also true—but not something the humble Kmiec is apt to point out—that he is now much celebrated on the left and lionized by the mainstream media. He may have to take the bitter with the sweet, but Douglas Kmiec is undoubtedly more famous and influential than at any previous time in his life.

What Kmiec never does in his Commonweal piece is answer any of those critics who engaged, not in vitriol, but in reasoned argument about the contradictions and inadequacies of the position he had staked out. From his article one would never know there were such people – only (unnamed) bloggers “demonizing” him in hurtful ways. But does he not owe his aboveboard critics an aboveboard response?

What pass for arguments in Kmiec’s latest apologia are the following three assertions. First, that he “remain[s] unabashedly pro-life.” Second, that he has “never consciously misstated the doctrine of the church.” And third, that despite pro-life fears that President Obama will push for and sign the “Freedom of Choice Act,” a disastrous setback for the right to life that would overturn 35 years of legislative gains in state and federal law, “there is no real legislative interest in FOCA.”

I’ll take these a bit out of order, with the second one first. As a Catholic myself, I will say that the formation of Douglas Kmiec’s conscience in conformity with the doctrines of the church is a matter between himself and his confessor. But there is more than a little hubris in his declaration that “were the Holy Father to tell me I had contradicted the magisterium on any given page of my Obama book, I would tear out that page.” I dare say that Pope Benedict has better uses of his time than to pore over the pages of Kmiec’s book and tell him whether and where he has gone astray. But the Holy Father’s brother bishops in this country have not been silent about either Barack Obama or Douglas Kmiec. Archbishop Charles Chaput of Denver has publicly stated that “people who claim that the abortion struggle is ‘lost’ as a matter of law, or that supporting an outspoken defender of legal abortion is somehow ‘prolife,’ are not just wrong; they’re betraying the witness of every person who continues the work of defending the unborn child.” Many other bishops have said essentially the same thing. Douglas Kmiec was one of those fitting both of Archbishop Chaput’s descriptions.

Kmiec’s claim to be a pro-lifer is, at least since his journey to Obama, nothing more than an assertion. And it is hard to square with the new president’s record. Is it pro-life to support a man who voted against, and vocally opposed, an Illinois bill to protect infants born alive during the course of abortions? A man who then got caught in a bald-faced lie about the reasons for his actions? To support a president who within days of being sworn into office has already rescinded the Mexico City Policy of withholding U.S. foreign aid from organizations that promote and perform abortions in other countries? A president whose new White House website declares his support for embryo-destructive stem cell research? A president who, unlike his electoral opponent, voted against funding non-embryo-destructive alternative forms of stem cell research? One who, again, unlike his opponent, actually supports the creation of embryos by cloning for research in which they will be destroyed? A president who has suspended a pending executive order of President Bush that would protect the right of conscientious doctors and nurses to refuse to participate in abortions in the medical facilities where they work? A president who, as a candidate in July 2007, promised Planned Parenthood that he would sign FOCA as the “first thing I’d do as president” if only Congress would pass the bill?

Ah, FOCA. Douglas Kmiec assures us that “there is no real legislative interest” in it. It may be that even its supporters feel that the time is not right to press its passage right now. But the fortunes of the bill are a matter for predictive political science, not for moral reasoning. The fact remains that Barack Obama is on record promoting it as among his highest priorities and stating his desire and intention to sign it. The nation’s Catholic bishops are worried enough to have spoken out publicly and repeatedly against the bill since Obama’s election. Nothing they have said, and nothing Douglas Kmiec has said, has caused Obama to waver even a millimeter from his devotion to such a radically pro-death policy.

And what does Kmiec say against it? For a declared pro-lifer, he is surpassingly mild: “My message to President Obama on FOCA . . . will remain what it was to candidate Obama: FOCA runs contrary to the pursuit of the common good.”

“Contrary to the pursuit of the common good”? That much one could arguably say about, for instance, a bailout of the auto companies. For anyone who believes, as Kmiec himself says he believes, that abortion is the unjust taking the lives of innocent human beings, FOCA is a profound evil. The legislation is a huge expansion of the license to kill unborn babies. It is an assault on the Constitution, on the beliefs and consciences of countless Americans of many faiths (and some of no faith at all), and worst of all it is guaranteed to escalate the death toll from abortion. By codifying Roe v. Wade in federal statute law, and by overturning bans on partial-birth abortion, as well as requirements for waiting periods, informed consent, and parental notification, FOCA would be a death sentence for many thousands of unborn children who would otherwise have a fighting chance to live.

The influence of Barack Obama on Douglas Kmiec has been profound. The influence of Douglas Kmiec on Barack Obama has been, to date, nonexistent. This is a state of affairs that has evidently not troubled Kmiec so far. Will it one day trouble him? Which executive order or bill signing will it take for Professor Kmiec to recognize his own moral accountability for the Obama administration’s policies? Or will he continue to rationalize “pro-life support” for a pro-abortion president, no matter what happens?

Matthew J. Franck is the Chairman of Political Science at Radford University where he teaches American government, constitutional law, American political thought, and political philosophy. An occasional contributor of articles to National Review Online, Dr. Franck blogs for the “Bench Memos” page and is the author of Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People, published in 1996. A graduate of Virginia Wesleyan College, he received his Ph.D. from Northern Illinois University.