The Corner

Douglas Kmiec’s Latest Folly

Kmiec says that he himself would have voted for the Illinois bill to protect born-alive infants had he been in the legislature. But he does not fault Obama for voting against it. Kmiec’s root defense of Obama is that the bill would have required doctors to take heroic measures to save pre-viable infants who had been delivered. “Medical ethics does not require so called ‘heroic’ care at either end of life, and neither does Catholic teaching,” Kmiec writes. Since most of the infants protected by the law would be pre-viable, Kmiec argues further, in line with Obama’s reasoning at the time, that it would be “very likely unconstitutional in most of its applications.”

None of this is true. First of all, it bears repeating that the Illinois bill was always very similar to the federal born-alive statute and, when Obama killed it in committee, nearly identical to it. That law has never been held unconstitutional. I am not aware of any pro-abortion groups that have even tried to advance the claim. Nor does the law do what Kmiec claims it does. The House Judiciary Committee’s report on the federal bill took some pains to address this very point. Medical care could be refused to a pre-viable infant, as it could be to a viable infant or, indeed, to anyone at all, if in the judgment of a doctor that care would not achieve anything. It could simply not be withheld from the pre-viable infant on the ground that this being is not a person recognized by the law.

Let me try to clear up some of the confusions Kmiec perpetuates by way of a blunt example that a pro-life activist suggested to me. Without the born-alive legislation in the law, it would be legal for a doctor to take a pre-viable infant–one expected to live for only a few hours–and kill her by bringing a hammer down on her skull. Under the law, that behavior would be illegal. Obama argued that providing any legal protection to that infant would be dangerous and unconstitutional.

Kmiec argues, further, that it is somehow novel for the law to define live birth in a way that includes pre-viable infants. Not true. Many states define born-alive infants in the same way and provides the same protections to them.

One more thing that Kmiec gets badly wrong: He claims that Obama is “on record” thinking that the definition of “health” in the Supreme Court’s abortion jurisprudence should be restricted. (The Court says that even post-viability abortions must be allowed if necessary for the pregnant woman’s broadly defined health.) Actually, Obama is on record claiming that the Court’s definition of health is much more restrictive than it in fact is. He is not urging the Court to revisit its jurisprudence; he is putting a misleadingly positive spin on that jurisprudence.

Kmiec, in the linked piece, repeatedly accuses Obama’s critics of dishonesty and bad faith. I will not respond in kind. I will say only that Kmiec gets nearly everything wrong, and in a way that makes Obama (and himself) look better.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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