Giuliani's Abortion Folly

It 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:

On the Federal judiciary, I would want judges who are strict constructionists because I am. . . . I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution.  Otherwise you end up, when judges invent the constitution, with your liberties being hurt.  Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one.  And that's part of our freedom and when that's taken away from you that's terrible. . . . I think those are the kinds of justices I would appoint - Scalia, Alito and Roberts.

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:

BASH: I want to flesh you out a little bit on some of the issues, for example, on abortion, you are a self-described pro-choice Republican. There is a woman out there who says, I like Rudy Giuliani because I think he is going to keep me safe, he is going to lower my taxes, he is going to get our budget balanced, but I want to know is [he] going to have the same position that he did as president that he did as mayor, which is to protect and defend my right to choose?  What would President Giuliani say?

GIULIANI: Same position -- I'm in the same position now that I was 12 years ago when I ran for mayor -- or as mayor, which is, personally opposed to abortion, don't like it, hate it, would advise that woman have an adoption rather than an abortion, I will help you find the money for it. But it is your choice, it is an individual right. You get to make that choice, and I don't think society should be putting you in jail for it.

BASH: And one of the things that you have said is that you will appoint strict constructionist judges.

GIULIANI: For a different reason, not necessarily that reason. I -- generally, that is my philosophy. It is the only way I can really see that we protect the separation of powers, personal liberties.  And by strict constructionist judges, I mean judges who will interpret the meaning of the Constitution, not create...

BASH: And many people see that as code to conservatives who say that means that he is giving me a wink and a nod saying he wants to overturn Roe v. Wade. Do you want to overturn Roe v. Wade?

GIULIANI: Dana, I don't wink and nod. I'm a very direct person. I tell people what I think. Sometimes I get in trouble for it.

BASH: So what is the direct answer?

GIULIANI: The direct answer is, a strict constructionist judge can come to either conclusion about Roe against Wade. They can look at it and say, wrongly decided 30 years ago, whatever it is, we will overturn it. They can . . .

BASH: But what is your personal deal on Roe v. Wade?

GIULIANI: They can look at it and say, it has been the law for this period of time, therefore we are going to respect the precedent. Conservatives can come to that conclusion as well. I would leave it up to them. I would not have a litmus test on that. My overall view would be judges who are going to struggle with the meaning of the Constitution, and that applies to criminal justice issues, it applies to terrorism issues, it applies to a whole host of issues, to the Second Amendment and the individual right to bear arms, there is a whole group of issues.

BASH: One last question on abortion. You might have heard of YouTube. There is something on YouTube from 1989, it is flying around the Internet. It is a clip of you.

(BEGIN VIDEO CLIP FROM YOUTUBE)

GIULIANI: There must be public funding for abortions for poor women. We cannot deny any woman the right to make her own decision about abortion because she lacks resources.

(APPLAUSE)

GIULIANI: I have also stated that I disagree with President Bush's veto last week of public funding for abortion.

(APPLAUSE)

(END VIDEO CLIP)

BASH: Is that also going to be your position as president?

GIULIANI: Probably. I mean, I have to re-examine all of those issues and exactly what was at stake then, and it is a long time ago. But generally that is my view, abortion is wrong, abortion shouldn't happen, personally you should counsel people to that extent. When I was mayor, adoptions went up, abortions went down, but ultimately it is a constitutional right, and therefore if it is a constitutional right ultimately, even if you do it on a state-by-state basis, you have to make sure that people are protected.

BASH: So you support taxpayer money or public funding for abortions in some cases?

GIULIANI: If it would deprive someone of a constitutional right, yes, I mean, if that the status of the law, then I would, yes.
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

Social conservatives don't need a president who will mount a crusade to re-criminalize abortion nationwide. They need a president who can persuade the American people that proclaiming a constitutional right to abort is barbaric. In all the decades since Roe v. Wade no politician has ever made this point clearly and forcefully.  Giuliani could be the first.
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
It 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:

On the Federal judiciary, I would want judges who are strict constructionists because I am. . . . I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution.  Otherwise you end up, when judges invent the constitution, with your liberties being hurt.  Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one.  And that's part of our freedom and when that's taken away from you that's terrible. . . . I think those are the kinds of justices I would appoint - Scalia, Alito and Roberts.

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:

BASH: I want to flesh you out a little bit on some of the issues, for example, on abortion, you are a self-described pro-choice Republican. There is a woman out there who says, I like Rudy Giuliani because I think he is going to keep me safe, he is going to lower my taxes, he is going to get our budget balanced, but I want to know is [he] going to have the same position that he did as president that he did as mayor, which is to protect and defend my right to choose?  What would President Giuliani say?

GIULIANI: Same position -- I'm in the same position now that I was 12 years ago when I ran for mayor -- or as mayor, which is, personally opposed to abortion, don't like it, hate it, would advise that woman have an adoption rather than an abortion, I will help you find the money for it. But it is your choice, it is an individual right. You get to make that choice, and I don't think society should be putting you in jail for it.

BASH: And one of the things that you have said is that you will appoint strict constructionist judges.

GIULIANI: For a different reason, not necessarily that reason. I -- generally, that is my philosophy. It is the only way I can really see that we protect the separation of powers, personal liberties.  And by strict constructionist judges, I mean judges who will interpret the meaning of the Constitution, not create...

BASH: And many people see that as code to conservatives who say that means that he is giving me a wink and a nod saying he wants to overturn Roe v. Wade. Do you want to overturn Roe v. Wade?

GIULIANI: Dana, I don't wink and nod. I'm a very direct person. I tell people what I think. Sometimes I get in trouble for it.

BASH: So what is the direct answer?

GIULIANI: The direct answer is, a strict constructionist judge can come to either conclusion about Roe against Wade. They can look at it and say, wrongly decided 30 years ago, whatever it is, we will overturn it. They can . . .

BASH: But what is your personal deal on Roe v. Wade?

GIULIANI: They can look at it and say, it has been the law for this period of time, therefore we are going to respect the precedent. Conservatives can come to that conclusion as well. I would leave it up to them. I would not have a litmus test on that. My overall view would be judges who are going to struggle with the meaning of the Constitution, and that applies to criminal justice issues, it applies to terrorism issues, it applies to a whole host of issues, to the Second Amendment and the individual right to bear arms, there is a whole group of issues.

BASH: One last question on abortion. You might have heard of YouTube. There is something on YouTube from 1989, it is flying around the Internet. It is a clip of you.

(BEGIN VIDEO CLIP FROM YOUTUBE)

GIULIANI: There must be public funding for abortions for poor women. We cannot deny any woman the right to make her own decision about abortion because she lacks resources.

(APPLAUSE)

GIULIANI: I have also stated that I disagree with President Bush's veto last week of public funding for abortion.

(APPLAUSE)

(END VIDEO CLIP)

BASH: Is that also going to be your position as president?

GIULIANI: Probably. I mean, I have to re-examine all of those issues and exactly what was at stake then, and it is a long time ago. But generally that is my view, abortion is wrong, abortion shouldn't happen, personally you should counsel people to that extent. When I was mayor, adoptions went up, abortions went down, but ultimately it is a constitutional right, and therefore if it is a constitutional right ultimately, even if you do it on a state-by-state basis, you have to make sure that people are protected.

BASH: So you support taxpayer money or public funding for abortions in some cases?

GIULIANI: If it would deprive someone of a constitutional right, yes, I mean, if that the status of the law, then I would, yes.
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

Social conservatives don't need a president who will mount a crusade to re-criminalize abortion nationwide. They need a president who can persuade the American people that proclaiming a constitutional right to abort is barbaric. In all the decades since Roe v. Wade no politician has ever made this point clearly and forcefully.  Giuliani could be the first.
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