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Bench Memos

NRO’s home for judicial news and analysis.

Missing the Point



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As readers of Bench Memos know, Prof. Douglas Kmiec has for several months been proposing — in defense of his surprising endorsement of Sen. Obama — that, in fact, the election of Sen. Obama would, all things considered, better advance the pro-life cause.  (Several of my Bench Memos colleagues have ably identified the weaknesses in Kmiec’s proposal.)  Yesterday, at the “On Faith” blog, Anthony Stevens-Arroyo dedicated his column to publicizing and celebrating Kmiec’s claim.

Stevens-Arroyo’s premise (and, unfortunately, Kmiec’s) is that the Democrats have, and would actually execute, an “approach to abortion” that “emphasize[s] pro-life programs like guaranteed health insurance, programs in pre-natal care[,] and government support to families.”  But, let’s be clear.  These programs are not generally regarded or defended by Democrats as “pro-life programs” or as part of the Party’s “approach to abortion.”  The Democrats’ “programs” and “approach” with respect to abortion are probably better illustrated by the Freedom of Choice Act, which will certainly become law if Sen. Obama is elected.  (For more, go here.)  (It’s also worth noting, as asides, that Sen. Obama has not endorsed the Democrats-for-Life-crafted Pregnant Women Support Act, as Sen. Casey recently had to admit, and that the Democratic Platform does not, in fact, “include pro-life positions” but instead, if anything, moves further in the abortion-rights direction.  Strikingly, Stevens-Arroyo claims that “neither presidential candidate supports abortion on demand.”  But, of course, Sen. Obama does.) 

More relevant, perhaps, to the Bench Memos conversation, though, is this:  The grave, distorting wrong that Roe and the abortion license work on our law and on the common good of our community involves more than the number of abortions performed each year.  To contend, as Kmiec and Stevens-Arroyo do, that pro-life Catholics should not be bothered by the fact — and, to be clear, it is a fact — that Sen. Obama will nominate (and the Senate will certainly confirm) judges and Justices who will invalidate, as unconstitutional, even reasonable regulations of abortion, because (a) overruling Roe would not end abortion anyway and (b) the Democrats’ more generous social-welfare programs might help to reduce the number of abortions, is to miss entirely that Roe is really bad constitutional law . . . and it matters. 

Yes, overruling Roe would not end abortion (though it would certainly make a difference).  This side of Heaven, I’m afraid, nothing will.  The problem with Roe, though, is not just that because it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government.  As long as Roe is the law, We the People are not allowed to write into law the conviction — assuming that it is or becomes our conviction — that the unborn child ought to be protected from lethal private violence.  The debate is cut off; the conversation is silenced; the “dialogue” that is so often celebrated by the same people who are enthusiastic about Sen. Obama is distorted.

What is at stake in the abortion debate — and, as someone who has known and admired Doug Kmiec for years, I am sorry that he seems to be forgetting this — is not only reducing the number of abortions and helping women considering abortion to find their way to a different choice (though, of course, such reductions and help are important, and one wishes that Democrats for Life had more influence); it as about repairing the damage done to our political community, and to our constitutional order, by a decision that declared that the Constitution itself disables citizens from protecting in law the most vulnerable among us.



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