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April 07, 2007 Giuliani's Abortion FollyBy Steven M. WarshawskyIt has long been understood that Rudy Giuliani's pro-choice stance on abortion could cost him dearly among conservative voters who wield considerable influence in Republican presidential primaries and provide a crucial core of support for Republican candidates in the general election. Those, like me, who find many of Giuliani's other positions and qualities highly attractive in a potential president (including his supply-side economic policies, his emphasis on law and order, his staunch patriotism and assertive foreign policy views, and his personal toughness and willingness to stand up to liberal special interests) have been hoping, with fingers crossed, that Giuliani will put aside his personal views on abortion and embrace the "strict constructionist" judicial philosophy that rejects the entire liberal approach to "finding" new "rights" in the Constitution, including the right to abortion created by the Supreme Court in Roe v. Wade (1973). In a speech to South Carolina's Republican Executive Committee in February, Giuliani took just this position:
These were heartening words for many folks who support (or want to support) Giuliani's candidacy. Personally, I think it is acceptable for a Republican presidential candidate to be pro-choice, so long as he (or she) recognizes the difference between politics and law, between policy choices that are to be made by legislatures and constitutional rights that are adopted by the people and enforced by the courts. This distinction is at the heart of what conservatism means in this country, and what the Republican Party should stand for. But note: The "conservative" approach to constitutional law does not authorize the Supreme Court or any other court to rule that abortion is unconstitutional. Properly understood, the Constitution is silent on this question -- which means that, unless and until the Constitution is amended, it is a matter for Congress and the state legislatures to decide. (See here.) Hence, under a proper interpretation of the Constitution, Roe v. Wade should be overturned, yes; but abortion probably still would be legal, in some form, in most states of the union. The main point is that there is nothing inconsistent or illogical about believing that some form of abortion should be legal, but flatly rejecting the idea that a "right" to abortion, however defined, is enshrined in the Constitution. This is the "strict constructionist" position that Giuliani and his supporters have been suggesting he holds. Of course, a lot of conservatives have had doubts about Giuliani's sincerity on this issue. These doubts have now been justified. In an April 4 interview with CNN reporter Dana Bash, Giuliani had this to say about abortion:
As someone who supports Giuliani over the other declared candidates, I find his comments to Bash truly dismaying. (For additional reactions to Giuliani's comments, see here and here.) It is clear that Giuliani believes abortion is a "right"; that there should be public funding for abortion; and that all his talk about appointing strict constructionist judges is "for a different reason, not necessarily that reason [i.e., to reverse Roe v. Wade]." Does Giuliani seriously expect conservatives to endorse a candidate who holds these positions? Perhaps more importantly, it appears that Giuliani has not been straight with Republican voters on the abortion question. Which inevitably raises the question: What else is he not being straight with us about? Immigration? Health care? Gun control? Taxes? Moreover, Giuliani's comment that a strict constructionist "can come to either conclusion about Roe against Wade" is preposterous. No strict constructionist can agree that the Constitution contains a "right" to abortion. It doesn't. Although Giuliani also was referring to the issue of stare decisis (i.e., respect for precedent), this is merely a prudential doctrine that, quite sensibly, provides that a court should follow an earlier decision when the same issue arises in a later case. However, stare decisis does not require that a previous decision that was wrongly decided should be followed in a later case. And Roe was wrongly decided. Nothing about being a strict constructionist remotely suggests that a bad precedent should be followed. Let's not forget that the liberal members of the Supreme Court do not hesitate to overrule prior precedents when it suits their political agenda. Compare Bowers v. Hardwick (1986) (no constitutional right to homosexual sodomy) with Lawrence v. Texas (2003) (creating such a "right"). A couple weeks ago on American Thinker, J. Peter Mulhern wrote a very interesting and insightful article arguing that Giuliani was uniquely positioned to promote "social conservative" positions on a host of issues, as a result of his "moderate" political credentials coupled with his tenacity in standing up for what he believes. Mulhern specifically drew a contrast with President Bush, who holds solidly conservative views but "[e]ven when he does the right thing he feels compelled to do it in an apologetic, almost cringing way that empowers his enemies and dispirits his supporters." On abortion, in particular, Mulhern argued that
Sadly, no. Giuliani's latest comments to CNN demonstrate -- beyond the power of any "spin control" or "flip-flopping" to change -- that he is solidly in the pro-choice camp when it comes to abortion and Roe v. Wade. I still think Giuliani is a better overall candidate than Mitt Romney or John McCain. But if Giuliani wants to be elected President of the United States come November 2008, instead of Hillary Clinton or Barack Obama, he will need legions of committed volunteers and vocal supporters to spread the message and get out the vote. Unfortunately, between Giuliani's comments to CNN, his interview with Barbara Walters, and the revelations about his wife's previously undisclosed third marriage, Giuliani is heading in the wrong direction right now, and undermining his reputation and goodwill among moderate and conservative Republicans alike. Is Giuliani's ship starting to sink? It certainly looks that way. Unfortunately, it may be taking the Republican Party's best presidential prospect down with it. Steven M. Warshawsky is a frequent contributor to American Thinker.
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