The Wrong Way To Argue About Abortion
For Rudy Giuliani, There Is No Avoiding: It's All About The Judges
By Dan McLaughlin Posted in 2008 — Comments (23) / Email this page » / Leave a comment »
Not only did Roe [v. Wade] not . . . resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue - as it does over other issues, such as the death penalty - but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.
Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. . . Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since.
Justice Scalia, dissenting in Planned Parenthood v. Casey, 505 U.S. 833, 995-96 (1992).
It would, in fact, be a far better world if the President of the United States and the Justices appointed by the President had nothing to do with abortion policy, but in the world made by the seven Justices who made Roe and the four others (plus the author of Roe) who preserved it in 1992, abortion is a matter of federal law, to be addressed mainly by the selection of Supreme Court Justices.
It is possible that abortion opponents, like me, can hope that Justices who may be receptive to overruling Roe could be appointed by a President who is not. That, at least, is the central challenge for the presidential candidacy in particular of Rudy Guiliani, a long-time supporter of legal abortion who now seeks the presidential nomination of the Party of Life. The debate over whether Rudy can be trusted on the courts is for another day, but I must say that as much as I am willing to support him, I am not at all persuaded, and do not expect other pro-lifers to be persuaded, by this Deroy Murdock column arguing that abortion rates fell during Rudy's tenure as Mayor of New York. The problem is, he doesn't really have an argument that Giuliani had anything to do with this.
Read On...
About the only policy Murdock can point to to attribute this to Giuliani is that he was not as bad as Bloomberg:
New York pro-lifers concede that Giuliani never attempted anything like what current Mayor Michael Bloomberg promulgated in July 2002. Eight city-run hospitals added abortion instruction to the training expected of their OB-GYN medical residents. Giuliani could have issued such rules, but never did.
That's something - evidence that Giuliani is hardly a zealot on the issue - but cold comfort in trying to make him out as actively participating in the decline in abortion rates.
In fact, specious claims about rates of abortion have been a staple of abortion's most zealous cheerleaders, including Hillary Clinton, who claimed in 2005 that:
In the (first) three years since President Bush took office, eight states have seen an increase in abortion rates and four saw a decrease.
This was a thoroughly bogus claim that nonetheless survived vigorous debunking, but as you can see from the chart presented by FactCheck.org, abortion rates were declining gradually from about 1980 on nationwide, and underwent a particularly sharp drop between about 1989 and 1995, the tail end of which coincided with the beginning of Giuliani's mayoralty.
On the other hand - and this is a very important part - the rates may go up and down, but no matter how you slice them, the overall number of abortions in this country is horrifying, and you can play with the charts all day long and not get them to where that is not true. (Compare the number of abortions to the number of executions some time, if you don't believe me). Trends and blips don't change that reality, which is why the issue is still, fundamentally, whether abortions should be thinkable at all in a civilized society.
I know Murdock, like many conservative New Yorkers, believes that the nation needs Giuliani's brand of leadership and just wants to help. But if there's one lesson Giuliani will need to fully absorb if he is going to succeed in wooing pro-life voters, it's that we have heard a lot before and we are not easily fooled. Rudy has one, longstanding position on Life, and we have another. Pretending otherwise will not help. The middle ground, the sensible, moderate position, is what Justice Scalia spoke of 15 years ago - democracy, federalism, getting the Supreme Court out of the business of making the rules off the top of its head and restoring to individual jurisdictions the power to make their own rules in line with the varying standards of their own communities. Which is why the judiciary is the whole ball of wax, one that can't be sugar-coated.
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The Wrong Way To Argue About Abortion 23 Comments (0 topical, 23 editorial, 0 hidden) Post a comment »
I agree that we need outspoken advocates for the culture of life, but this doesn't have to be the president. Sure it helps, but for the role of president we need someone who will put forth good judges and will be consistent on pro-life issues like vetoing federal funding for stem cell research. There are plenty of pundits, bloggers, and politicians that do a great job winning the hearts and minds, it doesn't necessitate that it be the president.
"I think the fence is least effective. But I'll build the god--d fence if they want it."--McCain
"I would rather have a clean government than one where quote First Amendment rights are being respected" --McCain
I think that a strong statement on or promise for constructionist judges would do Rudy well in the general, but do nothing for him in the primary. The only advantages that Rudy has over McCain is that he has executive experience and he didn't (was able to) support McCain-Feingold. Every other issue that is important to me, Rudy is either an equal or to the left of McCain.
Judges are important, but where would he stand on using the veto for other important life issues like federal funding for stem cell research? Would he fight to help ban partial birth abortion? These are just a few of the issues that Bush has had to face in his two terms, what would Rudy do?
"I think the fence is least effective. But I'll build the god--d fence if they want it."--McCain
"I would rather have a clean government than one where quote First Amendment rights are being respected" --McCain
Rudy most has to appeal on this issue. I think a promise for originalist type judges is actually the more honest approach. I don't think the party base will buy a total turn around from Rudy-it would seem way to vote pandering. I think the most honest way for Rudy to appeal in the primary is to advocate strongly for judges in the mold of Scalia and Thomas.
I have actually heard enough interviews from him now to get the vibe that he is more in line with this way of thinking-back during the Roberts and Alito nominations he came across as being in favor of originalist judges.
Basically I think an honest argument will have some appeal, and more appeal than a flip flop.
But either way I don't know that Rudy can survive the primaries. Abortion isn't the only issue that is going to cause problems with the base, and it is probably the easiest to deal with through campaign promises.
I would rather have a clean government than one where quote First Amendment rights are being respected.
This McCain quotation you provide is all the reason anybody needs to fervently hope the Arizona senator gets nowhere near the White House.
The debate over whether Rudy can be trusted on the courts is for another day, but I must say that as much as I am willing to support him, I am not at all persuaded, and do not expect other pro-lifers to be persuaded, by this Deroy Murdock column...
I'm not persuaded either. How about, um, a speech from this guy, you know, outlining with specifics and pledges his judicial philosophy -- especially how it relates to issues of life. I, too, would like to be in a position to support Rudy, first and foremost because of what I perceive as his general election appeal in an an election year that surely (all things being equal) will lean toward the Democrats. We very much need to choose the candidate with the greatest popular appeal, and that might well be Rudy. I really am willing to cut him some slack on the single most important issue to me, because I realize this guy was, after all, mayor or New York Freakin City (what kind of record could such a pol possibly have on abortion). Anyway, I keep waiting for such a speech -- hopefully it will arrive in short order after Rudy has declared. But if it doesn't arrive, not only will he not be getting my vote, but I honestly think his candidacy will be dead in the water.
I would like to support him, but damn it I want to here specifics and promises from him and not just him, but all the candidates.
I want to hear the following:
(1) a firm commitment to use the veto to curb spending
(2) a firm commitment to border security, and curbing illegal immigration.
(3) a firm commitment to appoint strict constructionist judges.
(4) a firm commitment to oppose the Democrats in any attempt to raise taxes.
(5) a firm commitment to push for much needed tort, social security reform, and school vouchers.
Which ever candidate can give me the most of those promises I will support (except McCain, I could never trust him)
"Nothing works like freedom, Nothing succeeds like liberty"
Kyle
I would also ad a commitment to liberty. He better RENOUNCE his gun grabbing ways or he has NO chance. I am very serious and am suprised more don't realize that if he does not the NRA will oppose him or at least sit on their hands and not endorse him. This will be a fatal blow to his run.
Rudy's biggest problem is that he has a history of being a big government prosecutor. I am just starting a book that simply excoriates him, it claims he abused power attacking Michael Milkin and other financiers in the 1980's. The book is called "Payback: The Conspiracy to Destroy Michael Milken and his financial revolution" Has anyone read this book? I will read it and see if it seems credible.
I want to like Rudy. I respect him on 9/11 and the War on Terror. Also, we need a winner, and he may just be that. On the other hand, he needs to spell out where he stands on many issues.
Yes, I read the Fischel book on the Giuliani-orchestrated attack on Milken & Drexel Burnham Lambert. I also read some other books on the topic (one by Kornbluth?). Giuliani & the business press were a part of the feeding frenzy that went after Wall Street financiers. While some were deservedly prosecuted, Giuliani earned the "excoriation" you noted. Giuliani used the RICO statutes in his prosecution; RICO (th R is for racketeering) was passed to provide a means to prosecute organized crime, the Mafia. Using RICO to go after someone like Milken was unprecedented & a misapplication of the law, as far as I & many others are concerned. Giuliani was so set on bringing down Milken that he had investigators interrogate Milken's 90-year old grandfather. I believe Milken's sister was also trailed. Mind you, while Milken's brother Lowell did work for Drexel, his grandfather & sister never did. With Giuliani harassing his family, Milken finally agreed to plead guilty to a handful of counts. The estimated damages (on these counts) were less than $750,000. And for this Milken got a 10-year prison sentence & some huge fine. This is way out of proportion to the fines & prison terms that the Enron-types of the world got (where there were actually enormous damages). To show you the kind of guy Milken is, he reached out to Giuliani when the latter came down with prostate cancer. I am amazed that Giuliani is doing so well in the polls. I think with this whole 9/11 experience, too many people have checked their brains at the door. When it comes to Giuliani, they need to wake up. We do not need this guy at 1600 Pennsylvania Avenue.
I like your list, but the 3rd item of #5 seems out of place, to me. Vouchers are a state issue. Add eliminating the Dept of Ed on there and Im right with you.
In the primary, it is all about how he says it.
"I will appoint constructionist judges" probably won't do it for the primaries.
"I believe Roe v Wade was wrongly decided" would resonate, and it does not compromise his integrity (Romney has this problem).
I've already heard him say somewhere (couldn't find it this morning) that he wants supreme court judges in the mold of Thomas, Scalia, Roberts and Alito, or something to that effect.
We were talking about this in the office the other day. Giuliani can win the primary if he can figure out a way to articulate, in short, powerful soundbites, his position on Federal Judges as well as gay "rights."
Judges: Strict constructionists--in a way that resonates with average primary voters. If we are convinced that the next supreme court nominee will be someone like Lutig or Janice Rogers Brown, pro choice or pro life will become less of an issue.
On gay rights he just has to articulate how most Americans really feel about it. No one believes that gays shouldn't have rights. However, they aren't special. Marriage is already defined. Gays shouldn't be able to re-define it. There are legal avenues for gay couples to get to just about everything married couples have. Married couples get it through the marriage certificate. It's just harder to do for other relationships, but it has nothing to do with rights. How to pack that into a soundbite that resonates? I don't know but I think it's his key to the primaries.
Push it up!
the majority of the social con problems to some degree. I absolutely agree that a concise statement of how he feels about the Roe decision would be a good move.
As for where you heard his comments, I know I heard a few of them during an interview on Fox during the Roberts and Alito nominations/hearings. What I haven't heard is a full blown concise statement from him, but the comments I have heard lead me to believe he leans to originalist end of the spectrum.
THe problem is he has a very high hurdle to jump in order to appeal widely to the GOP base in the primary. I am just not convinced he can do it, and honestly I don't know that he can jump high enough for me to vote for him in a primary.
Why oh why did the 'hero' elevated from the terrorist attacks have to be a liberal Republican?
Run like Reagan!
The "wrong" way for Rudy to make real progress would be to state "Roe V. Wade" was wrongly decided. He needs to take his own course and propose a ban on second and third trimester abortions, except in the case of rape/incest or health of the mother. Only through the incremental decrease of abortions through measures that have popular support will we eventually be able to declare victory in the race to save unborn children. An immediate reversal of Roe V. Wade by an unelected nine, IMO, will only lead to further backlash down the road. We need to start the process legislatively.
Roe needs to overturned for only one reason, and that reason is not abortion. It needs to go because it is BAD LAW.
The abortion fight needs to be moved out of federal jurisdiction, NOW.
___________________
If "pro" is the opposite of "con", what is the opposite of "progress"...
Senior Writer
Rudy cannot "propose a ban on second and third trimester abortions", precisely because Roe is the law, and it explicitly permits these types of abortions, indeed all types of abortions.
The SC consistently strikes down measures which have broad popular support, such as the PBA ban. We cannot "start the process legislatively" as long as Roe stands.
It's amazing that so many people do not grasp this point on a topic that is so widely debated.
I'm convinced that what many people really want is for the SC to pretend to go back and look at the Constitution again and "discover" that it actually permits abortion only in the first trimester or so. That would give many people an outcome they could live with. One downside, depending on your point of view, is that it would also make it even more obvious that the court is just making this stuff up as it goes along. I suspect the majority already are aware of that and are comfortable with it.
>>Rudy cannot "propose a ban on second and third trimester abortions", precisely because Roe is the law, and it explicitly permits these types of abortions, indeed all types of abortions.
He can propose absolutely anything. If such legislation is passed it is likely to be struck down, for all the reasons you state, but he can still propose it.
This may seem like nitpicking, but it is possible that the poster was looking for a way through Rudy's political problem and not for a solution to the abortion problem, in which case proposing something might be exactly what was intended.
Quentin Langley
Editor of http://www.quentinlangley.net
International Editor of
In Rudy Giuliani's early career, he was a higher-ranking person in the Dept. of Justice before taking over at US Attorney in NYC. While his focus was always in criminal law and not con law, he rubbed shoulders with several key conservatives there, including now-justice Samuel Alito. While there's no way to know for sure, someone with legal training who ran in those circles is more likely than not to favor strict constructionists in principle, as opposed to a Nixon who simply wanted someone to throw the book at criminals.
Even abortion supporters acknowledge that its legal reasoning is flawed.
The Murdock column is deeply flawed. He asserts in the title that Giuliani's actions had something to do with the decline in the number of abortions, but provides no evidence for this. It is part of the non causa pro causa family of logical fallacies, specifically, cum hoc ergo propter hoc.
I think Giuliani probably can win over a great many pro-life voters. It is obvious from reading RedState that there are many who have a will to vote for him, but need some sort of reassurance on this issue. But Murdock's column doesn't really advance that cause. He doesn't even say whether or not the abortion rate fell, or whether the number of abortions merely fell in line with the number of live births.
Quentin Langley
Editor of http://www.quentinlangley.net
International Editor of
The best Rudy can do on the abortion issue is promise to appoint constructionist judges, state he disagrees with the Roe Vs Wade decision, and is morally opposed to abortion but does not seek to have it outlawed.
I think most reasonable conservatives are interested in many other important issues besides abortion, but there will of course be primary voters whose only concern is the abortion issue.
I personally don't think we should look to politicians for leadership on moral issues. I think it's silly to want a President to be so outspoken about the immorality of abortion.
Do you think anyone is going to have their heart changed by President Bush on whether or not abortion is murder?
Giuliani should try to focus on his other conservative stances to woo conservatives, such as his support for school vouchers, his history of cutting taxes, reducing government spending, etc.
A large amount of voters, particularly women, write off the GOP purely because of its stand on abortion. I think more voters would be open to other conservative ideas if the Republican Party wasn't so hung up on this one issue.
"Back in the thirties we were told we must collectivize the nation because the people were so poor. Now we are told we must collectivize the nation because the people are so rich. "
William F. Buckley, Jr.
Keep in mind that a lot of people write off the Democrat party because of its stand on abortion. It's not a one way street.
Why expect Rudi to appoint strict constructionist judges? I hear that all the time and its pie in the sky kind of thinking. He is a social liberal and will appoint judges that support what he does.
A Rudi presidency would look a whole lot like Arnold as Governor. Do Republicans want that?
So far in the pre-campaign for 08, Rudy has expressed support for judges in the model of Alito, Roberts, and Scalia, opposed gay marriage (but supported civil unions), and said NOTHING about Roe, a decision he has supported on many different occasions. That Scalia speaks of Roe as the quintessential example of the abuse of judicial authority means that Giuliani has a big contradication on his hands.
He can try to resolve the contradiction or he can try to ignore it. I think the latter course risks alienating too many nomination voters. However, he also has to see that Romney's recent pandering leaves many wondering about principled leadership. So having some eureka moment and reversing his positions on Roe won't work either.
If he does look for a middle ground, it probably will come in the form of a federalism argument. He needs to retain the issue positions he has held thus far, but simultaneously honor those who strongly disagree.
If he can find a way to promise that he won't act on these issues as president (while maintaining his personal views as a matter of conscience), many conservatives will see a chance to buy the part of Rudy they like.
There's more to being a pro-life president that simply appointing supreme court justices who would overturn Roe v. Wade. We need a president who will be an outspoken advocate for a culture of life. To end abortion in America, we must win the hearts and minds of Americans. We must renew American culture. Simply overturning Roe will not get us there.