Catholics, Voting, and 2008

The discussions seem endless these days, but Rick Garnett’s comments on Doug Kmiec’s latest article are worth reading.

A taste:

That said, Doug’s column goes off course in a few places, I think. He writes:

Given that abortion is an intrinsic evil without justification, thinking the overturning of Roe “solves” the abortion problem, when it does not, can mislead Catholics into the erroneous conclusion that any candidate unwilling to pledge reversal of Roe is categorically unworthy of support.

Yes and no. True, overruling Roe does not, by a long shot, “solve” the abortion problem. It would, however, do two very important things: (a) It would solve another, serious, problem — namely, it would undo the major error that was Roe, thereby improving the state of our constitutional law (about which Doug cares quite a bit); and (b) it would make it possible for We the People, acting through our legislatures, to take measures that might, bit by bit, “solve” the abortion problem. The fact that overturning Roe does not, by itself, end abortion does not change the fact that the persistence of Roe effectively removes abortion from the arena of legislative (even if only incremental) action and compromise. Doug writes:

Senator Obama’s position accepts the existing legal regime which leaves the abortion decision with the mother as a “constitutional right.” Senator McCain’s position would leave the decision with the individual states. Neither position is fully pro-life, both are pro-choice, with the former focused on the individual and the latter focused on the right of the states. Senator McCain’s position is sometimes described as pro-life, but in truth, it is merely pro-federalism (states being free under the McCain position to decide to permit or disallow abortion as they see fit).

But this is not quite right. Sen. McCain’s position is not (merely) pro-“the right of the states” or pro-“federalism”; it is pro-“the right of the People” to try to promote the common good through law. Sen. McCain, unlike Sen. Obama, also supports a wide range of federal policies that regulate abortion and protect the consciences of pro-life citizens. Doug continues:

Independent of my Catholic faith, as a constitutional law teacher, I respectfully disagree with both Senator Obama and Senator McCain since the Constitution was intended as a means to enforce and guarantee the unalienable right to life recited in the Declaration of Independence, where of course it is explicitly traced to our Creator. Since neither candidate presents a position fully compatible with Catholic teaching recognizing abortion for the intrinsic evil that it is, Catholic teaching asks us to work for the reduction of the incidence of abortion through the most prudent way possible.

I am also a constitutional-teacher and, independent of my Catholic faith, I think that the Constitution probably does not, in fact, require governments to outlaw or regulate abortion. In any event, it *is* compatible, it seems to me, with Catholic teaching to have the view (as McCain does) that the Constitution permits (but does not require) We the People to legislate in accord with Catholic teaching, by regulating abortion (and banning capital punishment, and welcoming immigrants, etc., etc.). And, even if one thought that McCain’s view was not “fully compatible” with Catholic teaching, it is not clear why one should regard him as, in effect, in a “tie” with his rival, whose views on *this* question seem quite *in*-compatible with Catholic teaching.