Reconstructed Strict Constructionist

Rudy Giuliani tries to split the difference on abortion.

In 1989, when Rudolph Giuliani was running for mayor of New York, some news reports described him as pro-life while others called him pro-choice. Now, as he prepares to seek the Republican presidential nomination, his position on abortion is so nuanced that even he does not know where he stands.

Giuliani's current problem is the opposite of the one he faced in New York. Back then, he was a reputedly anti-abortion Catholic courting voters who overwhelmingly supported abortion rights. Today he is a former New York mayor known for his liberal views on abortion who is trying to please the socially conservative voters in the Republican primaries.

At the same time, Giuliani has to be careful not to move so far in the pro-life direction that he alienates voters in the general election, most of whom support the continued legal availability of abortion, though perhaps with more restrictions than is typical today. The result is a muddle that will satisfy no one who is paying attention.

Giuliani's basic position is the same as the one he took in 1989, when he first ran for mayor (and lost to David Dinkins). He said he thought Roe v. Wade, the 1973 decision in which the Supreme Court discovered a constitutional right to abortion, should be overturned. But he also said abortion should remain legal.

Nowadays Giuliani emphasizes that as president he would appoint "strict constructionists" to the Supreme Court, which is generally understood to mean justices who would vote to reverse Roe v. Wade. He says he still supports abortion rights, although he now favors parental notification laws and the federal ban on "partial birth" abortion, both of which he opposed as mayor.

There is nothing necessarily inconsistent about rejecting Roe v. Wade while opposing the state abortion bans it overturned. Indeed, it's a mark of intellectual honesty for a supporter of abortion rights to concede that the constitutional reasoning underlying the decision left much to be desired.

But if that's what Giuliani thinks, his explanation of his preference for strict constructionists is puzzling. "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," he said during a recent visit to South Carolina. "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."

This description might be accurate in some situations. In the case of abortion, however, the strict constructionist result Giuliani supposedly favors—overturning Roe v. Wade—would mean precisely that "legislatures get to make those decisions."

Giuliani's current stance on the federal Partial Birth Abortion Ban Act, which he says the Supreme Court should uphold, also casts doubt on his allegiance to strict construction. Just as you will have a hard time finding a right to an abortion in the Constitution, you will search in vain for a provision that authorizes Congress to dictate which abortion methods doctors may use.

While introducing new complications to his position, Giuliani has never resolved the longstanding tension between his condemnation of abortion and his insistence that it's a matter of "personal morality" (as he put it in 1989). "I hate it," he recently told Sean Hannity on the Fox News Channel, even while reiterating his support for "a woman's right to choose."

If the reason Giuliani hates abortion is that it involves killing an innocent human being, it's hard to see how abortion can be a matter of strictly personal morality into which the government should not intrude. Perhaps he hates abortion for some other reason—say, because it's icky. That might explain his newfound support for the "partial birth" abortion ban, but it does not seem like a rational basis for public policy.

© Copyright 2007 by Creators Syndicate Inc.

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