[Editors Note: Matthew Bowman is a pro-life attorney and guest blogger for Fidelis]
Obama-supporter Doug Kmiec wrote another article last week in a major news outlet that confuses Catholic teaching and tries to water down the Church’s pro-life position.
Kmiec’s claim in Time Magazine is that when the Vatican delivered remarks to pro-abortion Congresswoman Nancy Pelosi, the Church made a “sharp break with the past” in stating that not only are legislators required to be pro-life, but judges are too. Kmiec then adds his name to the long list of pundits calling for the Vatican to clarify some remark or another. Kmiec could use some clarity himself.
Kmiec’s first illogical leap is that the recent Vatican statement is a radical innovation, just because it says that ”jurists” as well as everybody else must follow the natural moral law on abortion. But the Church has always spoken of this duty applying to all public officials, and has explicitly included jurists/judges on countless occasions.
In 1973 and again in 1975, Pope Paul VI gave speeches to a group of American judges visting Rome, and he specifically told them they were obliged to defend the unborn. In 2000, Pope John Paul II “renewed” his call from his 1995 letter “The Gospel of Life” that “jurists and lawmakers” along with everybody else must protect the sanctity of human life including the unborn. The Congregation for the Doctrine of the Faith addressed its 1987 document “The Gift of Life” to “jurists and politicians” along with others, as did the Pontifical Academy for Life in 2000. The examples are endless: the Church always speaks of “legislators and jurists” having obligations under the natural moral law to protect the right to life.
Kmiec would have known this if he had conducted the tiniest bit of research on the Vatican’s website. But after asserting how vast is this Vatican break from the past, Kmiec inexplicably goes on to cite and quote exactly zero Vatican documents that supposedly establish some inconsistent teaching. His odd alternative is to cite the assuredly unmagisterial American Supreme Court Justice Antonin Scalia, whom he quotes several times. Does Kmiec, or the Time Magazine editor, think that these quotes support Kmiec’s assertion? Would a student law review editor at Kmiec’s school accept his assertion of past, inconsistent Vatican statements, when supported by nothing but quotes from Justice Scalia?
Yet Kmiec’s research is even more faulty than this obvious flaw. The American Papist points out that Kmiec failed to observe that the word that the Vatican used for “jurist” refers to law practicioners in general and not specifically to judges. This allows the Vatican’s statement to be broad enough to encompass plenty of nuance as to how the natural law ought to apply in different juridical contexts. Add to this the Vatican’s history of referring to “politicians and jurists” as having crucial responsibility for protecting the natural moral right to life, and it is clear that the recent statement to Pelosi is not even remotely too broad or unprecedented as Kmiec assumes.
Kmiec then errs in explaining the merits of his point. American judges cannot have a pro-life commitment to the natural moral law, he claims, or else the Vatican would “empty the U.S. Supreme Court of all five of its Catholic jurists,” who would all have to resign. But then Kmiec disproves his own point by bringing up Roe v. Wade.
Kmiec seems to think that Roe is an unsolvable quandry, pitting the obligations of positive law against those of the moral law. What is a Catholic Supreme Court Justice to do in the face of a law that restricts abortion? Strike it down and thus violate the moral law, or uphold it in violation of Roe and . . . hmmm . . . why is that bad exactly? We’re not sure, but it must be bad becasue that is how Kmiec frames his argument.
It is plain what a Catholic Supreme Court justice, and someone who adheres to the American Constitution, should do. Restrictions on abortion do not violate the Constitution, and ruling that way is perfectly consistent with the moral law, as well as with constitutional precedent (which allows old decisions to be overturned). Where is the quandry? It doesn’t exist. Kmiec’s example trying to show this dilemma falls completely flat, so he then moves on to another Scalia quote.
It makes sense that Kmiec wants to downplay the moral duty to overturn Roe. Kmiec spent the last year campaigning for Obama by repeatedly downplaying the pressing need to overturn Roe. He knew that electing Obama would cause much more devestation to the unborn than merely maintaining Roe, like increased federal funding of abortion, to name only one item. But Kmiec had a Catholic audience to convince, so he falsely claimed that overturning Roe was the only negative effect that a vote for Obama would have on the unborn, and further insisted that the pro-life argument for McCain/Palin was nothing but a bid to overturn Roe. With these premises in place, no benefit remained against voting for Obama, and therefore Kmiec had the nerve to describe Obama as the pro-life choice, despite Obama being the most extreme abortion advocate to ever run for President.
This explains why Kmiec would want to resist any suggestion from the Vatican that there is a moral duty for jurists to uphold the right to life. Otherwise, Kmiec’s own views are shown (once again) to have been flawed. But the Vatican has always said that the natural moral law containing the right to life applies to jurists as well as to everyone else.
Kmiec could not make headlines if he wrote that the Vatican just said something it has been saying for half a century. Instead he created a nonexistent need for the Vatican to retract a statement that is false only from the perspective of advancing Kmiec’s own abortion-friendly political agenda. Kmiec continues to veer off into more and more incoherent statements as he attempts to justify his own indefensible positions during the 2008 election.
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