Nuance!

I'm not sure if there's any point in posting this, since I think Rudy Giuliani's presidential campaign is a clear non-starter, but here's a staggering transparent attempt to have it three or four different ways on abortion:

HANNITY: .... Let's talk about the controversial issues. You will be asked about them. Where does Rudy Giuliaini stand on abortion? And do you think roe v. wade is a good law or bad law.

GIULANI: I oppose it. I don't like it. I hate it. I think abortion is something that is a personal matter I would advise something against. However, I believe in a woman's right to choose. I think you have to ultimately not put a woman in jail for that. I think ultimately you have to leave that to a disagreement of conscience and have to respect the choice that somebody makes. So what I do say to conservatives because then you want to look at well okay what can we look to that is similar to the way you think. I think the appointment of judges that I would make would be very similar to if not exactly the same as the last two judges that were appointed. Chief Justice Roberts is somebody I work with, somebody I admire. Justice Alito, someone I knew when he was US attorney, also admire. If I had been president over the last four years, I can't think of any— that I'd do anything different with that. I guess the key is and I appointed over 100 judges when I was the mayor so it's something I take very, very seriously. I would appoint judges that interpreted the constitution rather than invented it. Understood the difference of being a judge and a legislator. And having argued a case before the Supreme Court, having argued in many, many courts is something I would take very seriously.

I think I like the Mitt Romney's more forthright flip-flop better than this, which has just left me confused. I

Comments

Clearly, Matt, you're not hip to the new GOP subtlety! It's all about appealing to groups of people who have nothing in common with each other withot actually saying anything. Rudy is all about Rudy, and he needs to figure out how to get votes during the primary season without destroying his chances during the general election. Every issue will be like this for him. The best one, actually, will be gun control. I can't wait to see that one.

Posted by IP Guy | February 6, 2007 11:49 AM

The best thing for Dems would be a Guiliani victory in the primary--highly unlikely, I know. It would lead to a pro-life third party challenge that would hand Dems, oh, 50 states.

Posted by david mizner | February 6, 2007 11:55 AM

I don't understand what is so confusing for Matthew. The "I oppose abortion personally but am for a woman's right to choose" is a time tested gambit, especially for Catholics. It's the same exact position as John Kerry's.

It is also perfectly logical to believe that Roe is a bad decision and that abortion rights shouldn't be decided judicially, but that if one were a legislator one would vote for abortion rights. Giuliani's position on Roe is not clear from the interview, but that is perfectly consistent with what he said.

Posted by Al | February 6, 2007 11:56 AM

Al says: I don't understand what is so confusing for Matthew. The "I oppose abortion personally but am for a woman's right to choose" is a time tested gambit, especially for Catholics. It's the same exact position as John Kerry's.

What's confusing Matthew is how Giuliani thinks this stance has a prayer of getting him through to the GOP nomination.

Posted by dj moonbat | February 6, 2007 12:00 PM

I presume, dj moonbat, that Giuliani is counting on the second part of the position - that Roe is a bad decision and judges shouldn't be involved in deciding abortion rights - that Giuliani is counting on to persuade Republican primary voters. You are right that the first part (being personally against abortion but pro-choice) won't help him much politically.

Posted by Al | February 6, 2007 12:04 PM

Nice try, Al, but Giuliani is actually trying the more complicated "I appose abortion personally but am for a woman's right to choose but promise to appoint judges who will overturn Roe v. Wade" gambit.

This isn't triangulation, it's quadrangulation. Or, more accurately, it appears to be a fairly straightforward pledge to help overturn Roe, with a spoonful of pro-choice sugar words to sweeten the poison.

Posted by LaFollette Progressive | February 6, 2007 12:09 PM

I'm having similar difficulties parsing Giuliani here.

"I don't like it. I hate it."

Uh, so Roe v. Wade is bad?

"I think abortion is something that is a personal matter I would advise something against. However, I believe in a woman's right to choose. I think you have to ultimately not put a woman in jail for that."

So Roe v. Wade is good?

"I think the appointment of judges that I would make would be very similar to if not exactly the same as the last two judges that were appointed. Chief Justice Roberts is somebody I work with, somebody I admire. Justice Alito, someone I knew when he was US attorney, also admire."

So you believe abortion should be legal, but you would intend to appoint people to the Court who would overturn Roe v. Wade?

"I would appoint judges that interpreted the constitution rather than invented it."

Blah, blah, blah right-wing talking point that nobody takes seriously.

Part of Giuliani's appeal in NY was that he was pro-choice. But if he's President, he won't be allowed to waffle. Is he going to appoint somebody who will overturn Roe v. Wade or not? He seems to be saying that he would appoint somebody who would vote to overturn Roe.

But he doesn't want to come out and say it as bluntly as W. did. W. came out and said bluntly he wanted to appoint justices like Scalia and Thomas. Anybody who still thought W. would be tolerant of abortion law was delusional. (Though W. did trot out how 'pro-choice' wife just as his father did, I can't take that seriously, and wonder at anybody who could.)

Giuliani won't be able to get by with the same level of code-speak, although he appears to be trying to do the same thing. He has been explicitly pro-choice for a long time. Either he explicitly flip-flops, and loses the center that loves him so much, or he doesn't, and the right wing won't trust him and will vote for somebody else like Brownback.

Posted by RickD | February 6, 2007 12:11 PM

Nice try, Al, but Giuliani is actually trying the more complicated "I appose abortion personally but am for a woman's right to choose but promise to appoint judges who will overturn Roe v. Wade" gambit.

I think that's what I wrote at 11:56.

Posted by Al | February 6, 2007 12:12 PM

Al, for the millionth time, shut the fuck up. If Kerry had said that, you, Rush, and that pig-fucker Hannity would be chortling your fat guy laughs until election day.

Posted by Mike | February 6, 2007 12:15 PM

Matt --

Was there more you were trying to say here? Looks like you were launching into a new sentence and then stopped.

Posted by Bart Acocella | February 6, 2007 12:19 PM

No, Al, at 11:56 you compared Giuliani's position to Kerry's, which is nonsense precisely because of the point you make in your second paragraph.

They may hold the same views about abortion itself, but what matters for a Presidential candidate is whether they will appoint judges who want to overturn Roe.

Posted by LaFollette Progressive | February 6, 2007 12:21 PM

Has anyone else seen Marc Ambinder's item on Giuliani on Hotline today? He actually argues that Giuliani's stronger for his pro-choice, pro-gay rights position. It means Giuliani won't have to pander to the right because they won't support him anyway. Some position of strength...

Posted by Clark | February 6, 2007 12:27 PM

There are pro-choice liberals who oppose Roe v. Wade, so it's not incoherent, though it might be unelectable. Being such a law-and-order guy anyway, everyone would kind of expect Giuliani to pick right-wing judges no matter what he thinks about Roe v. Wade. If I were a pro-life conservative, I'd think Giuliani would be a good bet, but I have no idea if actual pro-life conservatives would buy that.

Still, it's not coherent to stand by Bush's appointees as having "interpreted the constitution rather than invented it". Even Roe v. Wade has more basis in the Constitution than Unitary Executive theory, which is just flat out made up. But that's just standard right-wing incoherence--there's no point singling out Rudy for insanities he has in common with the entire right-wing.

Posted by Consumatopia | February 6, 2007 12:31 PM

Re: I presume, dj moonbat, that Giuliani is counting on the second part of the position - that Roe is a bad decision and judges shouldn't be involved in deciding abortion rights - that Giuliani is counting on to persuade Republican primary voters.

I suggest a visit to any of the saner GOP blogs might be in order. The strategy is all about overturning Roe vs Wade. As long as they feel assured they will get that fifth justice of the Court who will do that, they will vote for anyone no matter what his views on abortion itself. And they aren't exactly out to lunch on this one; the president has little or no say on the abortion issue apart from his Court picks. If the pro-Life folks feel they can trust Giuliani (big "if" there) and they feel he is electable they will hold tehir noses and vote for him. There will be no signifucant third party run.
Additionally, there are many on the Right feel that the War trumps even the abortion issue, and again, they would vote a pro-Choicer happily as long as he stays the course on Iraq.

Posted by JonF | February 6, 2007 12:32 PM

"Has anyone else seen Marc Ambinder's item on Giuliani on Hotline today? He actually argues that Giuliani's stronger for his pro-choice, pro-gay rights position. It means Giuliani won't have to pander to the right because they won't support him anyway."

It's an interesting thought.

If I understand correctly, (and I'm not 100% sure of this), unlike the Democratic nomination race which is almost entirely proportional delegate allotment - meaning that a candidate that continually gets 40% of the vote in a multi-candidate field won't get 50% of the delegates - I believe the GOP nomination race includes lots of winner-take-all primaries.

If this is correct, then Ambinder may be onto something in that Giuiani could win primaries with a plurality, and take the nomination as some weird pro-choice / anti-Roe hybrid.

(Of course, there'd likely be hell to pay for the GOP in a 3rd party general election bid if that happened, but it's still interesting...)

Posted by Petey | February 6, 2007 12:40 PM

There are about a hundred reasons why Giuliani will never win. The simplest is that his business partner is a crook.

Posted by Antid Oto | February 6, 2007 12:43 PM

The only way Giuliani's comments could be made coherent in anything but a trivial sense would be if he said that while appointing anti Roe vs Wade judges he would also be pushing a constitutional amendment to explicitly protect the right to abortion. You'll notice that he didn't.

Posted by Ginger Yellow | February 6, 2007 12:59 PM

@Mike--
Al, for the millionth time, shut the fuck up. If Kerry had said that, you, Rush, and that pig-fucker Hannity would be chortling your fat guy laughs until election day.

Dude, relax.

Posted by Kuz | February 6, 2007 1:02 PM

I'm sorry, but I don't see how you can say Guliani's campaign is a nonstarter. He is ahead in the polls. McCain and Romney both have serious flaws as well. If no strong religious right candidate emerges, then I think Guliani has a real shot.

I think the Democrats have a better chance against McCain or Romney than Guliani. If I had to pick one of those clowns to be president, I would pick Romney, as he seems the sanest and most competent.

Posted by Jim W | February 6, 2007 1:15 PM

I would pick Romney, as he seems the sanest and most competent.

Romney attacks McCain as soft on torture. Competence maybe, sanity most definitely not. Not that Rudy's known for incompetence, either.

Posted by Consumatopia | February 6, 2007 1:28 PM

The only way Giuliani's comments could be made coherent in anything but a trivial sense would be if he said that while appointing anti Roe vs Wade judges he would also be pushing a constitutional amendment to explicitly protect the right to abortion. You'll notice that he didn't.

Why? What's wrong with simply supporting choice legislatively, if Roe were overturned? Is that not a "pro-choice" position? There's all kinds of reason to be against Constitutional amendments even if you substantively support the policy that the amendment is about.

Posted by Al | February 6, 2007 1:34 PM

I'll add that, even though Giuliani seems like the biggest potential threat to me, there is also a real possibility that the religious right would desert him if he were the nominee, and you could end up with a Democratic landslide.

In terms of what Giuliani said about abortion, I don't think it was all that confusing. Its just not clear to me whether he or not he thinks Roe v. Wade should be overturned. He's at least hinting he would nominate people willing to overturn it.

Posted by Jim W | February 6, 2007 1:34 PM

Giuliani's position isn't all that difficult to grasp.

1. Roe v Wade was a bad judicial decision. It should be overturned.

2. Abortion is wrong.

3. AAbortion should be a legal option for women.

Nothing in these three positions excludes one of the others.

Overturning Roe v Wade is not the same as making it illegal.

Posted by a | February 6, 2007 1:45 PM

Re: "...Romney attacks McCain as soft on torture. Competence maybe, sanity most definitely not."

The thing you need to understand about Romney is that he doesn't believe anything he says. So, what it comes down to is, I'd rather have someone who pretends to be a neocon rather than someone who really is one. Basically, I think Romney is less likely to start a war than the other two people.

As for what "a" says, if these really are Giuliani's positions, then I agree they are logically consistent.

Posted by Jim W | February 6, 2007 1:51 PM

(Of course, there'd likely be hell to pay for the GOP in a 3rd party general election bid if [Giuliani was the nominee], but it's still interesting...)

Several people have mentioned this upstream, but I don't buy it. Who exactly is going to front this 3rd party bid? Unless there is some serious Brownback momentum in primary season, there doesn't seem to be a credible candidate on this front.

A bigger risk for Rudy would be a lot of evangelicals staying home, which would completely throw the Republican electoral equation into disarray.

Posted by right | February 6, 2007 1:58 PM

The republicans are much more likely to birth a third party run over immigration than abortion, since every republican candidate will promise to appoint judges who interpret the Constitution as written (whatever that means).

Posted by henry evans | February 6, 2007 2:22 PM

RicD, you wrote "W. came out and said bluntly he wanted to appoint justices like Scalia and Thomas. Anybody who still thought W. would be tolerant of abortion law was delusional." I have to disagree with you. I know quite a few folks who voted for Dumbya in 2004, and it was their first vote for a Republican ever. When I pressed them on the abortion issue all of these pro-choice friends said "Bush is not against abortion because he has never said that he's against abortion". In one of the debates with Kerry the question was put very straightforwardly, but Bush non-answered it and was not challenged. If Kerry had had the balls right then to say to Bush "Do you or don't you want abortion to be outlawed?" and demanded an answer, he would have won. Bush would have upset the rightwing nutters or he would have shown his true colors to enough fence-sitters.

Posted by Eric | February 6, 2007 2:34 PM

I agree that none of the Republican heavies are likely to inpsire a 3rd party run.

3rd party runs happen when the base is unhappy with the entire party. In 2000 it wasn't that Gore was specifically detestable, but that many viewed the entire Dem establishment as compromised (which is a pretty common occurence in European democracies whenever leftists actually win power).

Despite overall unpopularity of the war, it doesn't look like the Republican party really has structural problems keeping it's base happy. Not at the moment.

In fact, what would be more likely is a libertarian split unhappy with the focus on social conservative values and the bad spending. But this sort of thing is less likely with a pro-choice candidate, not more.

I disagree with MY that Giuliani is a non-starter. He's authoritarian as the sun is old, and in these times of "attitude" politics, that's what will win the GOP primary.

Posted by Tony V | February 6, 2007 2:40 PM

I don't get what the inconsistency is supposed to be. His position appears to be "I'm personally against abortion, but I don't support laws restricting it. On the other hand, I believe that the Constitution gives authority over abortion issues to Congress (or to the states), and so I would appoint Supreme Court Justices who would vote to overturn Roe v. Wade."

Compare:

"I'm personally against marijuana use, but I don't support laws restricting it. On the other hand, I believe that the Constitution gives authority over drug policy to Congress (or to the states), and I would appoint Supreme Court Justices who would vote to uphold Raich v. Gonzales."

The fact that one thinks something is immoral doesn't mean you necessarily think it should be illegal. And the fact that you think something shouldn't be illegal doesn't necessarily mean you think it's a Constitutional right.

So where's the flip-flop?

Posted by Tim | February 6, 2007 2:53 PM

We really are in wingnut territory when people can't see how this is a incoherent. He is personally against abortion but thinks it should be legal. Ok. But he is making sure the he would make illegal (and yes that is what would happen if Roe is overturned)if he got the chance to do so.

Posted by Rob | February 6, 2007 3:16 PM

Tim's right, and Matthew of all people should not be confusing a slightly complicated position with an incoherent one.

Posted by Pithlord | February 6, 2007 3:22 PM

No, Tim is clearly wrong. The logical flaw in Giuliani's argument should be simple enough to grasp.

"I believe in a woman's right to choose... I would appoint judges (like Alito and Roberts) that interpreted the constitution rather than invented it." (clearly referring to the anti-Roe talking point that the case invented a Constitutional right out of thin air.)

The right to choose an abortion was established in Roe v. Wade. It is not specifically written in the Constitution. It is perfectly reasonable to believe that abortion should be legal while believing that Roe is a bad decision and abortion should be legalized via the legislature. However, if one believes that a woman has the RIGHT to choose an abortion, then one supports the Roe v. Wade decision, not a state-by-state legislative solution.

If Giuliani really supported the "right to choose," then he would support the appointment of judges who favor an expansive reading of the rights established by the Constitution, rather than judges like Alito and Roberts who favor a reductive, literalist reading of the Constitution (except when such a reading conflicts with conservative ideology.)

This is clearly an effort to have his pro-choice cake and eat the pro-life cake, too.

Posted by LaFollette Progressive | February 6, 2007 3:24 PM

Wait a minute. I'm a liberal, and its perfectly coherent to me. There are plenty of things a person can be against personally, but still think they should be legal for pragmatic reasons. And, in terms of Supreme Court rulings, there are plenty of OUTCOMES you can agree with even though you disagree with the reasoning behind them. That is probably how I would feel about Roe v. Wade, if I ever cared enough to look into all the constitutional mumbo jumbo.

I have to say, though, that Roe v. Wade has been around for so long, that even if you disagree with the legal reasoning behind it, it might be bad to overturn it because of all the legal chaos that would create.

Posted by Jim W | February 6, 2007 3:25 PM

But he is making sure the he would make illegal (and yes that is what would happen if Roe is overturned)if he got the chance to do so.

Riiiiiggggghhhht.

Because any right not expressly guaranteed to us by the constitution is not a right at all.

Who knew, the anti-federalists were right in the end.

Posted by a | February 6, 2007 3:26 PM

"Who exactly is going to front this 3rd party bid? Unless there is some serious Brownback momentum in primary season, there doesn't seem to be a credible candidate on this front."

Credible? Who said credible? All you have to be is antichoice. Could be Brownback or Buchanan or whoever the National Taxpayer's candidate is. If Guliani somehow emerged as the nominee, some would, as you say, stay home while others would migrate to a third party. It would represent the dissolution of the GOP, which is why the powers that be won't let it happen. If you don't believe me, consider this thought experiment: a pro-life Dem captures the Democratic Primary; half the party would bolt.

People seem to care about this issue, I've noticed.

Posted by david mizner | February 6, 2007 3:37 PM

"Because any right not expressly guaranteed to us by the constitution is not a right at all."

It isn't if a political constituency exists to ban the practice outright in 20-25 states and place onerous restrictions on it in others, and the only thing stopping them is the Supreme Court's decision that such a right is guaranteed by the US Constitution.

Giuliani doesn't say he thinks the decision should be left to the will of the majority. He says women should have the right to make the choice themselves. Then he essentially says he'll appoint judges who don't believe women have that right. That's not nuance, that's self-contradiction.

Posted by LaFollette Progressive | February 6, 2007 3:39 PM

Lafollete Progressive,

Your point is well argued, but I disagree. Can't I say that I believe someone has a right to do something, even if I don't think the Constitution says so?

For example, couldn't I say that everyone has a right not to be a slave, even though the Constitution originally allowed for slavery?

I think there is a general problem of Constitution-worship, where if people think something is good, then they think the Constitution must be in agreement, somehow.

Posted by Jim W | February 6, 2007 3:39 PM

Who knew, the anti-federalists were right in the end.

Not such a crazy position, actually. Though I'm pretty sure the Bill of Rights the Anti-Federalists wanted was somewhat different than the one Madison actually wrote.

Posted by Antid Oto | February 6, 2007 3:42 PM

It isn't if a political constituency exists to ban the practice outright in 20-25 states and place onerous restrictions on it in others, and the only thing stopping them is the Supreme Court's decision that such a right is guaranteed by the US Constitution.

Abortion is already next to impossible to obtain in many states, an apt illustration of Hamilton's argument against a Bill of Rights in the first place:

What signifies a declaration, that "the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.

That said, abortion should be free and available on demand.

Posted by Antid Oto | February 6, 2007 3:46 PM

It isn't if a political constituency exists to ban the practice outright in 20-25 states and place onerous restrictions on it in others, and the only thing stopping them is the Supreme Court's decision that such a right is guaranteed by the US Constitution.

Huh?

I have a right not to be discriminated against by my employer as a result of my race, color, religion, sex or national origin. That right is not contained in the Constitution; it is contained in legislation - specifically Title VII of the Civil Rights Act of 1964.

Posted by Al | February 6, 2007 4:12 PM

Can't I say that I believe someone has a right to do something, even if I don't think the Constitution says so?

You can say it, sure, and it's fine as a statement of personal preference, but as a policy statement from a Presidential candidate it's essentially meaningless. Rights that are neither enumerated in the Constitution, nor secured by the courts, can be ignored by the legislatures.

For example, couldn't I say that everyone has a right not to be a slave, even though the Constitution originally allowed for slavery?

Yes, but the Constitution was amended to guarantee that right. Prior to that, many people said that everyone has a right not to be a slave, but slavery continued to exist (even during and after the Civil War in states that did not secede from the Union.)

I think there is a general problem of Constitution-worship, where if people think something is good, then they think the Constitution must be in agreement, somehow.

This is perhaps true, but if someone believes that there ought to be A RIGHT to do something, then the Constitution needs to be in agreement for their opinion to carry any weight.

Posted by LaFollette Progressive | February 6, 2007 4:21 PM

LaFollette Progressive,

So the British have no rights. Who knew?

Posted by Pithlord | February 6, 2007 4:34 PM

Al, oddly enough, Congress passed a Civil Rights Act in the 1870s that banned discrimination by race in public accommodations. You might want to read these fine court decisions authored by good, solid, strict constructionist conservatives. It might clear up your confusion.

The Civil Rights Act of 1964 successfully established the rights you describe because the Supreme Court has a very different composition than it had in 1883.

Let's just say that a Court that is willing to overturn Roe would be extremely unlikely to conclude that Congress has the authority to legalize abortion nationwide. The reality of a Post-Roe America is that a large number of states would immediately ban abortion. If Congress attempted to establish a right to abortion, we'd end up right back in court.

Posted by LaFollette Progressive | February 6, 2007 4:40 PM

Pithlord, Rudy Giuliani is running for Prime Minister of the UK? Who knew?

Posted by LaFollette Progressive | February 6, 2007 4:40 PM

Re: That said, abortion should be free and available on demand.

Assuming we are NOT talking about medically indicated abortions, why in the world should abortions be free? They are purely ELECTIVE procedures for crying out loud, in the same category as face lifts and liposuction! I can think umpteen and one other medical procedures I would put ahead of abortion for public funding.

Posted by JonF | February 6, 2007 4:51 PM

LaFolletee Progressive: I don't think the Civil Rights Cases say what you think they say. In those cases, the Supreme Court held that the 14th Amendment didn't grant Congress the authority to pass the Civil Rights Act of 1875. But they cases were based on Congress lacking the power to pass the statute - not an individual rights issue. That difference is similar to the difference between Article I, Section 8 and the Bill of Rights: a Congressional act can be held unconstitutional for two different sorts of reasons - either because Congress's enumerated powers dont give it the power to enact the law in question, or because Congress is prohibited from infringing on specific individual rights.

Posted by Al | February 6, 2007 4:58 PM

I can think umpteen and one other medical procedures I would put ahead of abortion for public funding.

Abortions for some, miniature American flags for others!

Posted by Antid Oto | February 6, 2007 5:00 PM

Al, that distinction is essentially irrelevant. Roe v. Wade was decided on the grounds that neither Congress nor the states have the authority to infringe upon a woman's right to choose an abortion. If a Supreme Court majority overturns that decision, then the right will cease to exist and numerous states will immediately ban abortion. Rudy knows this. He's trying to have it both ways on the abortion issue.

Now, hypothetically, Congress could subsequently pass a law that establishes a right to abortion. At this point, the Court will be compelled to rule on whether the Constitution grants Congress the authority to establish a right to abortion. I hardly need to point out that Article I does not explicitly establish a Congressional power to define and enforce reproductive freedoms, do I?

In 1883, the Supreme Court overturned an act of Congress that sought to explicitly enforce the rights defined in the 14th Amendment, and those rights subsequently ceased to exist in practice for another 80 years. The limits of our rights as citizens are ultimately defined by the courts.

Posted by LaFollette Progressive | February 6, 2007 5:26 PM

I hardly need to point out that Article I does not explicitly establish a Congressional power to define and enforce reproductive freedoms, do I?

Oh, that's right. Congress's power to pass a law would have to be done under its Article I, Section 8 power to regulate interstate commerce, I'd think. And it is certainly debateable whether abortion is "interstate commerce", no matter how much that category has been expanded over the years.

But a case about whether Congress can regulate abortion under its interstate commerce authority is very different than a case about whether a person has an individual right to abortion under notions of privacy.

Posted by Al | February 6, 2007 6:13 PM

And it is certainly debateable whether abortion is "interstate commerce", no matter how much that category has been expanded over the years.

It's not all that debatable, other than in the pointy-headed academic sense. Consider, for example, the Partial Birth Abortion Ban Act of 2003, which certainly demonstrates that Congress at least thinks it has a voice in the abortion debate. The statute was declared unconstitutional by three separate federal courts; as far as I've been able to determine, the plaintiffs did not even try to raise a Commerce Clause argument in any of these cases. Maybe the Supreme Court will add an unexpected wrinkle, but it seems to me that it would take quite a judicial revolution for abortion to be declared outside the scope of the Commerce Clause. The Court is certainly a lot closer to overturning Roe v. Wade than it is to making that sort of decision.

Posted by Steve | February 6, 2007 6:32 PM

And it is certainly debateable whether abortion is "interstate commerce", no matter how much that category has been expanded over the years.

It's no longer a question of whether abortion is interstate commerce, but whether in the aggregate, it has an effect on interstate commerce. After Raich, Congress would only need to be legislating w/r/t abortion as part of a comprehensive scheme that touched on interstate elements. That wouldn't be tough to arrange at all.

Posted by dj moonbat | February 6, 2007 6:34 PM

Agreed, dj moonbat. However, I note that this subject came up in the recent oral argument in the Supreme Court over the partial birth abortion ban - with some justices asking whether Congress had the power under the interstate commerce clause to regulate partial birth abortions. (IIRC, that was an issue that the Justices brought up by themselves - it wasn't part of the Planned Parenthood argument that Congress doesn't have such power.) So I think the issue is still debateable.

Posted by Al | February 6, 2007 6:38 PM

If a Supreme Court majority overturns that decision, then the right will cease to exist

Um. . .no.

I have a right to open up a store called "Lafollete's an idiot" and sell hats that I call "ajksdfnahfbaf".

I don't believe the constitution tells me I have that right, but alas, I do.

Posted by a | February 6, 2007 6:56 PM

I have a right to open up a store called "Lafollete's an idiot"

Don't be so sure. You're sort of libeling the guy, after all, and it's just commercial speech if it's the name of the store, so it's not going to get loads of First Amendment protection.

Posted by dj moonbat | February 6, 2007 7:10 PM

Interstate Commerce is a red herring here. The so-called Partial-Birth Abortion ban attempted to regulate a specific medical practice that is currently considered to be Constitutionally-protected.

It's a very different matter for Congress to declare that women have a right to an abortion that supersedes any and all claims an embryo might have to a right to life. It is not at all clear to me that Congress has the vested authority to establish such a right.

In the absence of the Roe precedent, a conservative Court could very easily strike down such an act of Congress on the grounds that such a law violates the embryo's right to life. It is very possible that a decision overturning Roe would be grounded in a conclusion that the fourteenth amendment's equal protection clause and its application to the unborn prevents the rights established in Griswold from being extended to protect abortion. This is certainly the most common argument I have encountered from conservative legal scholars.

Posted by LaFollette Progressive | February 6, 2007 7:10 PM

You're sort of libeling the guy

Truth is always a defense. :-)

Posted by Al | February 6, 2007 7:17 PM

If I may defend Matthew for a second - Al has laid out the basic defense of Rudy's comments, which Jim W and Pithlord appear to agree with:

Why? What's wrong with simply supporting choice legislatively, if Roe were overturned? Is that not a "pro-choice" position?

When did Rudy say he supported choice legislatively? He never said that. You have imputed that statement to him in order to create a coherence that otherwise does not exist.

The moment Rudy says that he believes that the US Congress should pass a law making abortion legal in all 50 states, he'll be fucked. He can never say that. So, what he's left with is an incoherent position. It is possible to make his position coherent, but only by attributing a proposal to him which he does not make, and will not make.

I agree with david mizner above about the 3rd party run. This third party candidate would not be a major figure, maybe they'd get someone out of the House, maybe a retired state legislator, it doesn't matter. There at least 3% of the electorate that will never ever vote pro-choice. A Giuliani victory in the primaries would put a Democrat in the White House in a frickin' landslide.

Posted by DivGuy | February 6, 2007 7:17 PM

It's a good thing Professor Giuliani is not one of these lib Hitler Hillary types as well as a Democrat because then he'd obviously be unelectable in the GE. It's also the case that there's just no way George W Bush was going to win a second term (John Zogby should know - he's like a totally good pollster and stuff), or for that matter that some jerk actor from California could win the presidency.

Posted by Linus | February 6, 2007 7:21 PM

A Giuliani victory in the primaries would put a Democrat in the White House in a frickin' landslide.

I tend to agree. I'm seeing some people argue (Digby and Greenwald) that the churchies would vote for him unworried that he'd sell them out, but after that whole Souter thing I think the reservoir of trust has run pretty low.

Posted by dj moonbat | February 6, 2007 7:23 PM

Let me get this straight. I argued that if the Supreme Court overturns the Roe decision, many states will immediately ban abortion. Therefore, the right to abortion will no longer exist.

In this week's edition of Bad Analogy Theatre, "a" compares this to his putative right to set up a store producing merchandise that insults me, despite the lack of a Supreme Court decision upholding his right to do so.

First of all, I am flattered to learn that 25 states would be willing to pass a law banning T-shirts that insult me. Clearly "a" believes this to be true, or he wouldn't have attempted to draw an equivalence between the two situations. Apparently, my lobbyists are both mighty and feared. Thank you, Pro-LaFollette forces, whoever you are. In lieu of legal support, please send money.

Secondly, I encourage "a" to try selling T-shirts that say "Mickey Mouse is an idiot" online and see what happens. He might learn a valuable lesson about just how far his non-Constitutionally-protected rights will carry him.

Furthermore, DivGuy gets to the heart of issue. Even if one stipulates that Al has correctly described a scenario that allows Giuliani's statement to make logical sense, which I don't, it's still evident that Giuliani would never admit in public that this was his true meaning.

Posted by LaFollette Progressive | February 6, 2007 7:23 PM

When did Rudy say he supported choice legislatively? He never said that. You have imputed that statement to him in order to create a coherence that otherwise does not exist.

I don't disagree. He also did not say anything about whether or not he supports Roe. (Of course you could infer that from his discussion of Roberts and Alito. But I note also that neither Roberts nor Alito has taken a position on Roe, so even if we believe that by saying "I will choose judges like Roberts and Alito" Guiliani really means "I will choose judges who vote the same way as Roberts and Alito on Roe", we don't know what that is!)

The moment Rudy says that he believes that the US Congress should pass a law making abortion legal in all 50 states, he'll be fucked.

That could be. However, I think that a position that abortion should be a state-level, not federal, issue is perfectly consistent with being pro-choice. One would just support legislators at the state level who are pro-choice.

Posted by Al | February 6, 2007 7:36 PM

That could be. However, I think that a position that abortion should be a state-level, not federal, issue is perfectly consistent with being pro-choice.

Well, I don't. If you support a constitutional/legislative outcome in which millions of American women have no right to an abortion, you are not pro-choice.

And, still, under the "let hte states decide" format, Rudy still hasn't said a word about supporting pro-choice legislation. Once he makes that clear, he'll hold a relatively coherent position, though not one that I would call properly pro-choice. But he won't make that clear, and so his position will remain incoherent.

Posted by DivGuy | February 6, 2007 7:45 PM

Al - "However, I think that a position that abortion should be a state-level, not federal, issue is perfectly consistent with being pro-choice."

And we're right back where we started. Yes, this position is consistent with being "pro-choice" in the abstract. No, it is not consistent with supporting "a woman's right to choose".

If Giuliani thinks Roe v. Wade should be overturned and abortion should be a state-by-state decision, he should come out and say so, not try to skate past the question by slipping in the buzzwords that both sides want to hear.

Posted by LaFollette Progressive | February 6, 2007 7:46 PM

I think that a position that abortion should be a state-level, not federal, issue is perfectly consistent with being pro-choice.

No, it's not.

Currently, we have a certain regime, mandated by the Constitution, that protects a woman's right to choose abortion under many circumstances. If the Court decided that said mandate did not exist, that available level of choice would almost certainly decrease. Nobody supporting a policy that would decrease the availability of the right to choose can reasonably call themselves pro-choice, or expect to be called that by others.

Posted by dj moonbat | February 6, 2007 7:47 PM

Yes, this position is consistent with being "pro-choice" in the abstract. No, it is not consistent with supporting "a woman's right to choose".

For the liberal philosophy fundamentalists...

Yes, technically, one can have a "right" which is not respected by one's state of residency. However, if you claim that people have a right, and then support judicial/legislative means that work to remove the state's respect of that right, your claim is damn weak. Incoherent, even.

Posted by DivGuy | February 6, 2007 7:51 PM

Um, LaFollete, you're an idiot.

I never said the shirts would insult you. The shirts were gibberish. And the Mickey Mouse point is irrelevant and unrelated.

Regardless, you didn't understand the point.

LaFollete: If a Supreme Court majority overturns that decision, then the right will cease to exist and numerous states will immediately ban abortion.

There's two separate statements here.

1. If a Supreme Court majority overturns that decision, then the right will cease to exist

Wrong. The right exists. It's not a constitutionally protected right, but it's a right. It's a difference with a distinction. Take a moment to let it sink in. It's important.

2. and numerous states will immediately ban abortion.

Well, this might be true (I'd like to know exactly if and to what extent you're right about this). But, only in these states would the right cease to exist.

You've been using overly broad language to argue your points. I take issue with it.

Posted by a | February 6, 2007 7:51 PM

Wrong. The right exists. It's not a constitutionally protected right, but it's a right. It's a difference with a distinction

But if you remove the judicial/legislative constructs which protect that right, your actions speak louder than your words about "support" for that right.

The slight philosophical point you're making is sound, but ultimately meaningless. We're talking about millions of women's bodily autonomy, and if a person doesn't support material support for that material right, I dispute that they support the "right" in itself.

Posted by DivGuy | February 6, 2007 7:54 PM

2. and numerous states will immediately ban abortion.

Well, this might be true (I'd like to know exactly if and to what extent you're right about this). But, only in these states would the right cease to exist.

Wait, you believe that a right ceases to exist when the relevant government forces don't protect that right? And, as such, you're basing your position on the notion that abortion would remain equally legal in America if Roe v. Wade were overturned?

I hope I'm misreading you somehow. That's the stupidest thing I've ever read, and I've read libertarian blogs.

Posted by DivGuy | February 6, 2007 7:58 PM

It's so simple: if you support policies that lessen the extent of a right's protection, you are not "pro" that right.

Posted by dj moonbat | February 6, 2007 8:05 PM

No, a, I understand your "point" quite fine, despite the inane analogy. I strongly disagree with it.

In a philosophical sense, one has rights whether or not your state of residence respects them. We Americans like to believe that all men are created equal and born with certain inalienable rights that governments are bound to respect. And you can claim any right you wish to claim and see if it holds up in court. But in a practical sense, a "right" only exists in any meaningful sense if it is backed up in the legal code.

Practically speaking, you have the right to name your store "LaFollette is an idiot" because my surname is not a registered trademark and because I can't afford a team of lawyers to harass you with defamation lawsuits that you can't afford to fight. However, in the United States you do not have a legally sanctioned "right to open a store wherever I want and name it whatever I want." You have the right to start a business within certain parameters, subject to local restrictions. This is a difference with a very important distinction.

If Roe is overturned, women will have access to abortions if they happen to live in the right state or are willing to travel hundreds of miles to get it and are willing to put up with any politically popular restrictions that interest groups feel like pushing through, or the father doesn't move to a state where abortion is illegal and file an injunction on behalf of the child, etc.

You can call that a "right to choose an abortion" if you like. But that entails a definition of "rights" that is essentially meaningless. I'd say that falls into the category of a "privilege."

Posted by LaFollette Progressive | February 6, 2007 8:48 PM

Under American law, you have the (positive law) right to do whatever isn't proscribed by statute. So it follows that if Roe is repealed, then women will continue to have the (positive) right to abortion except in those jurisdictions where it is banned. I doubt there are any states where a total ban would pass, although there would undoubtedly be a lot more restrictions in some jurisdictions than the SCOTUS is currently willling to see.

There is no contradiction between being pro-choice (opposed to restrictions on abortion) and thinking that the issue should be decided by the democratic process. You can be in favour of single payer healthcare, or a right to die, or more generous child support laws, and accept as a constitutional matter that these things should only happen if representative institutions enact them.

Posted by Pithlord | February 6, 2007 10:05 PM

There is no contradiction between being pro-choice (opposed to restrictions on abortion) and thinking that the issue should be decided by the democratic process.

Yes, there is--as outlined by several commenters above, in different ways.

Posted by dj moonbat | February 6, 2007 10:59 PM

West of the Hudson, Dracula will not translate. It's not just the Canarsie Elmer Fudd voice. It's the choreography, the head bob and weave, the Chef Boyardee bullshit. It's done before it starts.

Posted by Trevor | February 6, 2007 11:23 PM

It's so simple: if you support policies that lessen the extent of a right's protection, you are not "pro" that right.

Ahhh, the old "objectively pro-[whatever]" argument (or, in this case, objectively "anti"). If I support policies that lessen the extent of abortion rights, I am objectively anti-choice.

I had thought we'd done away with this argument a few years ago, but I guess not. Does that mean I can call people against the war objectively pro-insurgent? After all, if yu support policies that help the insurgents, you must be pro-insurgent...right?

Posted by Al | February 7, 2007 12:06 AM

This whole argument is ridiculous. Is it hypothetically possible for a person to be pro-choice and yet want to see Roe overturned? Sure, it's possible, even logical. But no one actually holds that opinion. And if you claim you do, you're a liar.

Posted by Antid Oto | February 7, 2007 2:45 AM

Ahhh, the old "objectively pro-[whatever]" argument (or, in this case, objectively "anti"). If I support policies that lessen the extent of abortion rights, I am objectively anti-choice.

Look, if a person supports the repeal of the 2d Amendment, and they tell you it's because they think gun control should be a local issue, but they wouldn't vote for one of those local gun control laws (even though they think guns are dangerous and evil), they aren't "pro-gun."

Posted by dj moonbat | February 7, 2007 6:50 AM

"So it follows that if Roe is repealed, then women will continue to have the (positive) right to abortion except in those jurisdictions where it is banned."

True Just as slaves were free apart from the ones weren't emancipated, and Jews survived the holocaust apart from ones who were slaughtered in millions.

"I doubt there are any states where a total ban would pass, although there would undoubtedly be a lot more restrictions in some jurisdictions than the SCOTUS is currently willling to see.

A total ban already has passed in South Dakota, for fuck's sake - it only got repealed by special ballot.

"You can be in favour of single payer healthcare, or a right to die, or more generous child support laws, and accept as a constitutional matter that these things should only happen if representative institutions enact them."

Indeed, which is why to be coherently pro-choice Giuliani would have to endorse using the representitive institutions available to him as president to support the right to choose. Like nominating pro-Roe judges, or supporting a constitutional amendment, or some Federal legislative initiative to constrain those states that would ban abortion. He has done none of things, and quite obviously won't do any of them.

Posted by Ginger Yellow | February 7, 2007 7:32 AM

If I support policies that lessen the extent of abortion rights, I am objectively anti-choice.

Um, yes. If you promise to take action that would reduce or eliminate the abortion rights of millions of women, you are objectively anti-choice. You're getting it, Al!

Posted by mds | February 7, 2007 8:48 AM

Re: A total ban already has passed in South Dakota, for fuck's sake - it only got repealed by special ballot.

A "special ballot"? what's that mean? I thought this happened via a garden-variety voter referrendum in a regular election. But the South Dakota experience should give some heart to pro-Choice folks that even in very conservative states the public will not tolerate a return to the 1950s on this issue.

Posted by Jonf | February 7, 2007 1:41 PM