April 18, 2007

Giuliani on the abortion decision.

He supports it:
Former New York Mayor Rudy Giuliani (R), who in the past has supported a woman’s right to a form of late-term abortion, Wednesday joined in the chorus of Republican presidential candidates hailing the Supreme Court decision upholding the ban of the procedure.

“The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion,” Giuliani said in a statement on the 5–4 decision. “I agree with it.”

When Giuliani ran for Senate in 2000, he said he would not vote to restrict a woman’s right to undergo the procedure.
This is not a contradiction. You can be on the losing side of a legislative choice and still believe that it was constitutional. Giuliani consistently demonstrates a strong commitment to separation of powers. Just as the judges aren't supposed to strike down a law simply because they would have voted against it had they been legislators, a political candidate can support a judicial decision that upholds legislative power, even if that legislative power was used to enact a statute he would have voted against.

17 comments:

hdhouse said...

Well now. I have to admire someone who can flip flop with integrity. He was, of course, against abortion before he was pro choice and then of course he was somewhat for and against....and and and...

I guess it just depends on the day and where he is and the audience he is talking to. Is that reaching out to all Americans or just the ones in the room?

women! hear me roar!

Mark said...

While technically Ann is correct, it is much more likely that Giuliani simply panders to conservative for political reasons. With his pro-abortion comments and the subsequent slide in polls, he could hardly afford to further alienate conservatives to have any hope of winning the nomination.

Mark said...

From MediaMatters:

"But in 2000, Giuliani said he agreed with President Clinton's veto of the Partial-Birth Abortion Ban Act of 1997, saying then -- in response to a question about whether if he, as a senator, would have "vote[d] with the president or against the president" -- that he would have "vote[d] to preserve the option for women." On the February 5 edition of Fox News' Hannity & Colmes, when Giuliani expressed support for the current law banning "partial-birth abortion," co-host Sean Hannity pressed him about the apparent reversal. Giuliani attempted to reconcile his two positions by stating that he supports such bans only when they contain a "provision for the life of the mother." But as Media Matters noted, several federal bills banning "partial-birth abortion" proposed from 1997 through 2000 -- including the one Clinton vetoed in 1997 -- also provided "an exception to save a mother's life who is endangered by a physical disorder, illness, or injury." So, while the presence of a life-of-the-woman exception was previously not enough to win Giuliani's support for a ban, such an exception is apparently now sufficient."

So, Giuliani himself did not make the distinction that Ann did in her post and instead relied on the reference to the life exception. Obviously, this distinction does not hold water since, as MediaMatters noted, the 1997 law also contained this exception.

While the fact that Giuliani doesn't rely on Ann's suggested rationale is not necessarily dispositive, it strongly suggests that Giuliani's shift is explained primarily if not completely by Presidential politics.

Too many jims said...

Prof. Althouse is correct that it is not a contradiction to be on the losing side of a legislative matter while at the same time believing the court reached the correct decision. At the same time, if he believes (as he has often said) that abortion should be a state matter, this decision is a major setback.

"I agree with it." Is a nice ambiguous answer.

Eli Blake said...

Exactly.

When he was running for the Senate, it was in New York, a very liberal, pro-choice state, and he had his party's nomination all wrapped up (at least until he tried to move his mistress into Gracie Mansion) so he was trying to win some of those swing voters.

He is now trying to reach Republican primary voters, who tend to be very conservative, and many of whom would refuse to vote for him if he didn't say he supported this decision.

You can spin it any way you want, but the man is a politician and he is acting like a politician. Even John McCain, who has in the past taken contradictory positions on the same issue literally within hours, is more willing than Giuliani to stand up and say something that his audience that day won't want to hear.

As for his judgement-- well, just keep in mind that he expressed full confidence in Bernard Kerik even to the point of recommending Kerik to Bush as director of Homeland Security.

dave™© said...

Lady, you are without a doubt the biggest fucking idiot on the internet.

Go fuck yourself. Thanks in advance.

Simon said...

Too many jims said...
"[If one] believes ... that abortion should be a state matter, this decision is a major setback."

That might be true if today's ruling had said that FPBAA was constitutionally sound. But it did not say that. It said that FPBAA was not unconstitutional for any of the reasons litigants in this case said it was. That is a vital distinction, underlined by Justice Thomas' concurrence, which notes that because no litigant raised it, the court did not address whether Congress had the power to pass the statute in the first place.

Revenant said...

Uh oh, dave's back. Looks like Ann will be turning on moderation again.

Too many jims said...

Simon,

That is a fine legal point you raise. Nonetheless, the court allowed the political apparatus at the federal level to make a call that impairs the ability of states to make decisions on the matter. Maybe anti-abortion forces think they have won all the battles they can at the federal level (certainly given the current make-up of Cogress it is more of an uphill battle), but if so called partial birth abortions can be banned I suspect that anti-abortion forces might try to get federal laws requiring parental notification, waiting periods, etc. Things that are currently left to the states to decide.

With regard to the specific point you raise about Thomas' opinion, I susect there is a total of one possible vote for that position on the court (though I suppose Alito or the CJ could surprise). If Scalia was going to take the commerce clause route I think he would have done so in Raich.

Seven Machos said...

Awesome! Brownshirt Dave makes an appearance. Good to know you are fucking alive and fucking well.

Revenant said...

Even John McCain, who has in the past taken contradictory positions on the same issue literally within hours, is more willing than Giuliani to stand up and say something that his audience that day won't want to hear.

Last week Giuliani spoke to a gathering of Iowa Republicans -- a highly conservative bunch, socially -- and bluntly told them that the Republican party needed to stop worrying about social conservative issues like abortion and focus on taxes and national defense.

Judging from the way the people at "The Corner" threw a hissy cow over those remarks, I'd say that qualified as telling conservatives something they didn't want to hear.

cokaygne said...

The media are going to focus on Romney and Giuliani's flip-flops until the primaries pick a winner because they like controversy and want to keep the horse race going. Can anyone name a politician who has not changed or "nuanced" positions, or who did not "grow" in office? What is important is the candidate's reason for changing positions. Giuliani is advocating a federal approach to issues like abortion and gun control that asks courts to empower states by limiting the federal role.

The subjects raised by Thomas deserve discussion: Should the Supremes go beyond the case at hand and the issues raised by the litigants and be a super legislature? Are there limits to Congress's powers under the commerce clause? I'd love to have the candidates discuss these issues in their campaigns.

Simon said...

Too many jims said...
"Simon, That is a fine legal point you raise."

Do you mean "fine" as in fine-grained or as in well-made?

"[T]he court allowed the political apparatus at the federal level to make a call that impairs the ability of states to make decisions on the matter."

That's something of a reach. Certainly to no more extent than preemption ever "impairs the ability of states to make decisions on [a] matter," and probably far less so: unlike, say, ERISA, FPBAA doesn't preempt an area that states have preexisting regulatory power over, precisely because the court has denied the states that regulatory power. If the court subsequently overrules Roe but upholds broad federal power over abortion policy, and you offer the same argument then, I will heartily agree with it in that context, because the shoe would well-fit in response to that or those rulings. But I think that here, in response to this case, it's inapt.


"[I]f so called partial birth abortions can be banned I suspect that anti-abortion forces might try to get federal laws requiring parental notification, waiting periods, etc. Things that are currently left to the states to decide."

Well, as your correctly (if confusingly, since the two points are in tension) point out just before making this remark, pro-life forces no longer command a majority in either the House or the Senate, so the possibility of passing such laws is highly speculative. And even if such laws passed Congress, they should be vetoed by any President, and then subjected to an as-applied challenge in court as ultra vires if applied beyond D.C., the military and other areas of undoubted Congressional authority.


"With regard to the specific point you raise about Thomas' opinion, I susect there is a total of one possible vote for that position on the court (though I suppose Alito or the CJ could surprise). If Scalia was going to take the commerce clause route I think he would have done so in Raich."

Certainly that's the position taken by two of the Volokh Conspirators, but I don't think it holds much water. Raich is pretty easily-distinguishable.

Too many jims said...

Do you mean "fine" as in fine-grained or as in well-made?

Actually, both. I was going to add a parenthetical to that effect but (1) I thought it was too self-indulgent and (2) I liked the ambiguity.

On the whole, I agree with your legal analysis. I wouldn't be surprised if Giuliani went through a portion of that analysis when deciding to land on the statment:"The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion. . . I agree with it."

I was trying to make a point about his political position. I still believe that for those who believe that legislation regarding abortion should be handled at the state level (as I believe Giuliani has said), this statute and this decision is a setback. Going forward, whenever the political balance at the federal level is just so one party or the other can bring up legislation to require (or prohibit) parental notification (as an example).

This is not an idle point. Either (a) Giuliani believes that abortion legislation should be left up to the states, in which case he should be opposed to the statute (though he could still say the decision is correct) or (b) Giuliani believes that federal legislation regulating abortion is appropriate, in which case Republican primary voters might want to ask him whether he would be more likely to sign a parental notification requirement (if Congress is in Republican hands) or a ban on parental notification (if Congress is in Democratic hands)(to use but one example).

The beauty of Giuliani's ambiguous statement is that it will mean different things to different readers. To some (Prof. Althouse for example), the statement represents "a strong commitment to separation of powers." To people who view abortion primarily as a moral or political issue (as opposed to as legal/constitutional issue) the reader might hear that Giuliani is more sympathetic to their position that they had initially thought. To people who don't like Giuliani, they just hear hypocrisy.

vrse said...

I have to stop reading this blog after breakfast to avoid the nausea.

Giuliani has made clear that the right to choose is a constitutional right. For some women, so-called PB abortion is the ONLY available medical procedure, by banning it you are effectively taking away that right.
It does not matter if you're a legislator, SCOTUS Justice or derelict law professor, the fact that you say it's a constitutional right and then proceed to ban one form of accessing that right, no matter what your role in government, is a reprehensive act of intellectual dishonesty. I don't know what that makes any of his followers, but it certainly does not make them moderate feminisits.

One clarification to your obsessive fan Simon: There's a difference between strict construction and originalism. Take your time, read her NYTimes piece, reflect, and then get back to me. No need for you to post every 5 seconds 24/7. There is sunshine out there, you know.

Eric said...

I think Ann's giving Giuliani too much benefit of the doubt.

What Giuliani said back in the old days was that he thought New York's law permitting the now-illegal abortion procedure "worked to create the necessary scope of freedom and prohibition."

If the abortion practice was "necessary" to freedom back then, I would think Giuliani would need to condemn a Supreme Court decision permitting its proscription, not celebrate it.

Simon said...

vrse said...
"Giuliani has made clear that the right to choose is a constitutional right. For some women, so-called PB abortion is the ONLY available medical procedure, by banning it you are effectively taking away that right."


Even assuming, arguendo, that there really is a constitutional right to abortion that legislative or executive action cannot substantially burden the exercise of, and even if late-term procedures are necessary to effect that right, the procedure banned by FPBAA - IDX - is never "the ONLY available medical procedure" available: standard D&E remains available under this law and remains protected from legislation by this ruling. And just to pre-empt the inevitable reply, yes, Of course, I think that should be eliminated too, but that's beside the point.


"One clarification to ... Simon: There's a difference between strict construction and originalism."

You're going to lecture me that there's a difference between originalism and strict construction? You really are new around here. And I don't see how either supports your position here.


"There is sunshine out there, you know."

Ironically enough, right now, there isn't much of that here in Indiana. It's pretty overcast. But yesterday was a beautiful day. In many senses.