Matthew Franck, Radford University

The conduct of Pepperdine’s Professor Douglas Kmiec as “house Catholic” of the Obama administration is starting to resemble a carnival freak show: “Step right up, folks, and watch the pro-life Catholic Obama supporter tie himself into knots of altogether new and fascinating shapes.  Why, when he’s through, even he can’t disentangle himself!”

Weeks ago, we asked here at Moral Accountability, “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?”  The answer is very clear now: that Professor Kmiec will say just about anything to paper over President Obama’s radically pro-abortion agenda, and while the president remains unbending in his devotion to the unfettered abortion license, Kmiec will engage in all manner of contortions in order to defend that devotion while claiming he himself does not share it.

Every new effort by Professor Kmiec reveals him in a fascinating new shape.  His latest is on display in an op-ed at the Politico website, defending the University of Notre Dame’s invitation to President Obama to give the commencement address and receive an honorary degree on May 17.  But it is not really a defense of Notre Dame for inviting someone whose politics diverge from Catholic teaching.  It is a defense of President Obama as someone faithful Catholics should love.

In January, on the website of Commonweal, Kmiec could still write that, in light of the “forthright and objective” scientific basis for the Catholic church’s position on abortion, “is it not proper for the burden of evidence now to shift to those who, for religious or nonreligious reasons, believe unfettered abortion ought to be permitted?”  Surely among “those who” believe such a thing was the new president whom Kmiec had supported in the campaign last year.  But in January Kmiec could still hint that President Obama was a work in progress–that none of the attacks on him had “closed the mind of the new president.”  Perhaps no one but Douglas Kmiec believed any such thing even then.

If he himself ever believed it, now it looks like even Kmiec has given that up as a forlorn hope.  At Politico, he now writes, without a hint of criticism–indeed, in what can only be taken as praise–that “Obama’s views supporting abortion rights and embryonic stem cell research are pragmatic.”  What’s that again?  Was it “pragmatic” for state senator Obama to do everything in his power to kill the Illinois bill intended to protect the infants born alive during attempted late-term abortions?  Was it “pragmatic” for presidential candidate Obama to promise a Planned Parenthood audience in 2007 that he would make it a top legislative priority in his administration–the first bill he wanted on his desk–to sign the Freedom of Choice Act, the most radically pro-abortion legislation ever introduced in the U.S. Congress?  Was it “pragmatic” for President Obama to issue an executive order providing federal funds for embryo-destructive stem cell research, including funds that support human cloning so long as the cloned embryos are destroyed for research?

Pragmatists seek compromise, search for common ground with others, and regard few issues to be so freighted with principle as to present no splittable differences.  True pragmatists are notoriously disinclined to see principles anywhere in politics.  On the life issues, Barack Obama shows no signs of being a “pragmatist.”  He’s got a principle, all right.  But it is diametrically opposed to the inherent and equal dignity of every human being at every stage of life and in every condition.  Obama’s principle appears to be that of Thrasymachus, the sophist in Plato’s Republic: justice is the interest of the stronger.  The weak need not apply to him for succor–at least not if they are in utero or in vitro, and probably not if they are in any medical condition of radical dependence on others at later stages of life.

Immediately after this praise of Obama’s pragmatism, Kmiec writes that the president “knows [his position] is less than the absolute legal prohibition demanded by the hierarchy of the Catholic Church in America.”  That is a marvel of understatement.  Yes, inasmuch as zero percent prohibition is less than one hundred percent.  But Kmiec’s transparent objective is to contrast the nice “pragmatist” with the extreme and hardhearted “absolutists” among the nation’s bishops.  Just what you’d expect to see in a “hierarchy,” don’t you know.  Then Kmiec repeats his now threadbare argument that Obama “advocat[es] abortion reduction” through more poverty spending, and “advocates stronger families and teenage responsibility.”  As the columnist Mark Steyn might put it, this is all vaguely hopeychangey.  But the evidence documented by Michael New of the University of Alabama in various places (see here, for instance) shows that the approaches that work to reduce the incidence of abortion are those that hem in the practice with legal constraints and restrictions.  And the reality of the Obama administration is that it stands unalterably opposed to such restrictions, its principal policy slots are filled with extreme pro-abortion personnel, and practically its only concrete policy accomplishments since January have been fulfillments of the president’s commitments to the abortion lobby.

Professor Kmiec argues that opposing President Obama’s Notre Dame appearance on the basis of this record is not consistent with “the image of Christ in Matthew’s Gospel never turning away even ’sinners and tax collectors.’ . . . Jesus’ method was one of inclusion, teaching with generosity, forgiveness and truth–not snubbing those in high office.”  One recalls, of course, that Jesus did not exactly cultivate the favor of the Sanhedrin.  Sinners he did indeed gather to himself; but his forgiveness was offered to those who repented, not to those who persisted defiantly in sinning despite his teachings.

By far the most precious paragraph in Kmiec’s article is this one:

Of course, the truth of unborn life is disputed inside and outside the church. Catholic teaching insists that the personhood of the unborn child is not just a matter of faith but of objective science and the natural moral law available to all. Science does confirm that the first fertilized cell is unique and different from mother and father. But scientists do not claim to establish when legal personhood begins–that, most say, remains a political judgment. For me, it is faith informed by love–but that’s for another column.

A finer example of muddying the waters would be difficult to find.  While it is true that “Catholic teaching insists” what he says it does, and true as well that it “insists” on its conclusions being “available to all” via the evidence of science and the common ability to reason about our nature, Kmiec still manages to insinuate that there is something peculiarly “Catholic” about the view that the unborn child is a “person” from the first moment of its existence.  For immediately after this accurate statement of the Catholic view of the union of science and morality in forming our judgment, Kmiec hammers home a wedge between science and morality.  Science, you see, can tell us the “first fertilized cell”–i.e., the zygote–”is unique and different from mother and father.”  This is an awkward way of stating things.  What would that “unique and different thing be?  Is it a being?  Would it not be more straightforward to say that from fertilization, a new human being exists?  But Kmiec avoids such plainspokenness, instead teasing out a difference between “uniqueness” and “legal personhood.”  The first is said to be a biological fact, and the second a “political judgment,” on which, speaking for himself alone, Kmiec declares he is guided by “faith informed by love.”

Yes, “legal personhood” is an artifact of the law.  There was a time in our history when a chief justice of the Supreme Court could say that men and women of African descent had no rights that white people were bound to respect–effectively denying them “legal personhood.”  So let us drop the distracting adjective.  Will Douglas Kmiec affirm the proposition that a new human being exists as of fertilization, the coming-to-be of a zygote?  If so, can he identify any human beings who are not persons?  Not legal persons, just . . . persons?  If there are any human beings who are not persons, what must happen to convert these human non-persons into human persons?  Is there any stage of development, change of condition, or characteristic of identity we might choose for this decisive transition to “personhood” that would not be wholly arbitrary as a defining threshold?  Is there any natural fact other than fertilization that can serve properly as the marker of our coming into being as distinct, individual human persons?

These are matters for reason, are they not?  By declaring that such judgments are, for him, matters for “faith informed by love,” Kmiec encloses this great public issue in a little box called “religion” and tucks it away in the back of a cupboard.  It’s a clever rhetorical maneuver that “religionizes” and thus radically privatizes each of our views on “personhood,” just the way abortion advocates have done for the last 35 years.  By this gambit, President Obama is off the hook.  He merely has his own private view, which reason cannot show to be inferior to any other view.  We all just have our own different faith commitments about these things!

There is more special pleading in Professor Kmiec’s article that space does not permit our considering here: for instance, the excuses for Obama’s reversal of conscience protection regulations for health professionals promulgated by the Bush administration (a matter on which Kmiec seems very ill-informed), or the rather ridiculous claim that the Obama administration “has already assumed the mantle of Catholicism” on other issues, none of which actually constitutes a matter on which the church claims to speak with authority.

But a word is in order about Kmiec’s conclusion.  Was it too much to expect that this ardent supporter of Barack Obama would never stoop to play the race card?  Evidently it was, as Kmiec insinuates that opposition to Obama’s appearance at Notre Dame would be like the reappearance of the Ku Klux Klan in South Bend, 85 years after a brawl with Notre Dame’s “fighting Irish.”

Has Douglas Kmiec completed his journey?  Not too many months ago, he declared himself dedicated to changing the mind of a young presidential candidate in whom he saw much promise but whose views on abortion he declared unsatisfactory.  Today those views are “pragmatic”; Kmiec’s fellow Catholics are un-Christian in their vocal opposition to those views; the call of the unborn on our attention is muffled in obscurantist twaddle about “legal personhood” and private religious views; and opponents of a pro-abortion black president’s coming appearance at a Catholic university might as well be Klansmen.

Into what new shape will Douglas Kmiec contort himself next?

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.