Is Giuliani's Abortion Triangulation Coherent?

By MICHAEL C. DORF

Wednesday, Feb. 14, 2007

In 1989, when Rudolph Giuliani first ran for Mayor of New York City, he said that he thought Roe v. Wade, the 1973 Supreme Court decision finding a constitutional right to abortion, should be overturned. Although he backed off of that position during the campaign, he lost the election.

In 1992, before the next mayoral election, the Supreme Court re-affirmed the validity of Roe's basic recognition of a right to abortion in Planned Parenthood v. Casey. The next year, Giuliani ran as a clearly pro-choice candidate, and won two terms. As mayor, Giuliani committed city resources to protecting women's reproductive choices.

Now that Giuliani is exploring a run for the Republican Presidential nomination, he must appeal to his party's base, which skews pro-life. And so, cynics may be excused for wondering whether it was more than a coincidence that, last week, Giuliani declared himself a "strict constructionist" who, if elected President, would nominate judges who "interpret, not invent, the Constitution." As John Kerry might say, Giuliani was against abortion rights before he was for them, and then he was for them before he was against them again.

Whether Giuliani's apparent waffling on abortion will prove a liability in the primaries remains to be seen. But beyond the question of consistency over time is the question whether Giuliani's current position is internally consistent. He says he "hate[s]" abortion, but that he supports "a woman's right to choose," even as he would appoint Supreme Court Justices whose judicial philosophy might lead them to overturn Roe. If you're keeping score at home, that means Giuliani is pro-life in his personal views, pro-choice in his political views, and somewhat cryptically anti-Roe as a matter of constitutional law.

Is that too nuanced a view? Maybe. On Saturday, the New York Times noted that Richard Land of the Southern Baptist Convention found Giuliani's triangulation even more offensive than the position of those who are not morally opposed to abortion at all. Moreover, the Times implied that Land is not alone.

Nonetheless, Giuliani's current position--personally pro-life, politically pro-choice, constitutionally anti-Roe­--is, in fact, a perfectly coherent one. But to make that case to the American people will require him to explain some important nuances.

Separating Morals From Politics

The seeming contradictions in Giuliani's current position on abortion can be made to dissolve if we allow two distinctions: First, between morality and law; and second, between legislation and interpretation. Let's consider these in turn.

It is easy to generate examples of behavior that one might condemn as wrong, but which should nonetheless not subject those who engage in it to any legal penalty. Consider adultery. Until relatively recently, adultery was a criminal offense in most American jurisdictions. Yet today, we recognize that while adultery may be considered sinful on religious grounds, and while it can represent a betrayal that, when discovered, causes real emotional damage, the harm it does is personal--and thus not appropriate for society to address through the criminal law.

Indeed, on the subject of adultery, the public seems to demand precisely the combination of attitudes that Giuliani holds with respect to abortion: Private condemnation, but no legal sanction.

Thus, even in notoriously liberal San Francisco, Mayor Gavin Newsom suffered political damage from the revelation that he had an affair; yet no one in San Francisco or elsewhere has called for the re-criminalization of adultery in civilian life. Only in the military, where private rights are severely curtailed, does anybody still face a public penalty for adultery, and even there, the practice is highly controversial.

The Potentially Harmful Side Effects of Criminalization

There is an important difference between adultery and abortion, however. Although adultery is not a victimless act, the harm adultery causes is "private," in the sense that it is a personal betrayal. In contrast, abortion, if one believes, as Giuliani apparently does, that it ends a human life, harms one who is purely innocent. Unlike a jilted spouse, a fetus in no way can be said to have made an error in judgment in trusting someone who proved unworthy of that trust.

Nonetheless, one can think abortion morally wrong in most circumstances, yet still oppose its criminalization for fear of the adverse consequences of criminalization itself. During the era before Roe v. Wade, abortions occurred in large numbers, but they were performed by disreputable characters in unsafe conditions, causing thousands of women to die and thousands more to suffer permanent injuries.

As America's experience with Prohibition and the war on drugs demonstrate, making a product or service illegal does not eliminate demand for that product or service. It does mean, however, that only lawbreakers, including dangerous lawbreakers, will traffic in the product or service. One could reasonably think abortion immoral, but worry that the principal impact of criminal prohibitions on abortion will be to endanger women's lives.

Does fear of a return to the days of back alley abortion explain Giuliani's belief in legal abortion? It is not clear, but if so, that raises at least one further possible inconsistency--with Giuliani's record on illegal drugs.

As United States Attorney for the Southern District of New York in the 1980s, Giuliani's highest profile prosecutions involved white collar crime and organized crime, but he also aggressively prosecuted drug dealers. True, the priority given to drug prosecutions in the Reagan Administration (and in subsequent administrations) was set in Washington, so perhaps those years tell us little about Giuliani's personal views with respect to the war on drugs. However, during Giuliani's years as mayor, the police targeted "quality of life" crimes, with the result that arrests and convictions for personal-use quantities of marijuana increased dramatically.

This record makes it hard to believe that Giuliani sees the war on drugs as a counterproductive failure--unless perhaps he was for the war on drugs before he was against it. At the very least, if Giuliani now intends to reconcile his moral opposition to abortion with his opposition to criminalizing abortion by pointing to the harmful effects of an illegal market for abortion, then he owes the public an explanation for why he does not reason in the very same way about drugs.

A Strict Constructionist

So much for Giuliani's policy views about abortion. What about his constitutional views? Can one think that abortion should be legal, but also that the Constitution does not protect a right to abortion?

Of course. To continue with the drugs analogy, one might think that criminal prohibitions on drugs are counterproductive, but also think that Congress and state legislatures are entitled to reach a contrary conclusion. More broadly, nobody could seriously contend that everything he or she favors as a policy matter--repeal of the estate tax, network neutrality, federal funding for "Sesame Street," you name it--is therefore a constitutional requirement. There is thus no automatic inconsistency between favoring legislative protection for abortion rights, and opposing judicial protection for abortion rights under the Constitution.

By invoking strict constructionism in the context of questions about abortion, Giuliani no doubt means to signal to religious conservatives that he will appoint Supreme Court Justices who will vote to overturn Roe v. Wade. In Roe, he implies, the Supreme Court "invented" a right--to abortion--that the Constitution's text does not expressly recognize. A "strict" construction of that text would leave abortion regulation to the states and possibly to Congress.

Whatever its political utility, this argument is woefully incomplete as a matter of jurisprudence. Abortion is not the only right the Supreme Court has "invented" under the Fourteenth Amendment's Due Process Clause, and if Giuliani means strict constructionism to be a vehicle for overruling Roe, then he must also be willing to discard other (less controversial) rights with the same questionable pedigree.

Or, at the very least, Giuliani should have to explain whether he favors the overruling of the Supreme Court's 2003 decision in Lawrence v. Texas, invalidating a law that criminalized same-sex sodomy between consenting adults; the Court's 1965 ruling in Griswold v. Connecticut, finding a constitutional right of married couples to use contraceptives; and its 1925 ruling in Pierce v. Society of Sisters, finding a constitutional right of parents to send their children to private school. There may well be good reasons to think the Supreme Court's "invention" of those rights was justified, while its invention of the abortion right was unjustified, but strict constructionism cannot be among them: That philosophy condemns each of these decisions equally.

In sum, upon close examination, there appears to be no internal inconsistency in Giuliani's current position on abortion. The difficulty for Giuliani, however, is that his abortion stance does appear inconsistent with his views about drugs, gay rights, and other issues, at least absent further explanation.

Or perhaps, as Ralph Waldo Emerson wrote, "a foolish consistency is the hobgoblin of little minds." Could that be the slogan of the coming Giuliani campaign?


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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