The Rudy dilemma

Joseph C. Smith Jr.

Monday, December 17, 2007

What’s a pro-life conservative to do about Rudy Giuliani?

Pat Robertson endorses him in the Republican primary, but Tony Perkins disagrees. James Dobson goes further than Perkins: Dobson threatens to recruit a more conservative, third-party candidate in the event the Republican Party nominates Giuliani. Hadley Arkes, meanwhile, says he’s not sure what he’ll do if Giuliani is the Republican nominee.

For pro-life conservatives, there is one correct answer here, and notwithstanding these divergent opinions, it is obvious: Back whomever you like until the Republicans choose a nominee, but if that nominee is Rudy Giuliani, back him wholeheartedly.

The reason is simple. Like it or not, the single greatest obstacle to reducing — and ultimately eliminating — abortion in the United States is the Supreme Court’s 1973 Roe v. Wade decision. Until the Supreme Court reverses that decision, activist courts will continue to strike down even common-sense abortion regulations such as parental notification and partial-birth abortion bans. The next president’s appointees to the Supreme Court will almost certainly decide whether Roe stands or falls — for at least another generation.

That is because the next two justices to leave the court are likely to be two liberal supporters of Roe, most probably John Paul Stevens (age 87) and Ruth Bader Ginsburg (age 74, with a history of cancer).

If these two justices leave the court during a Democratic presidency, they will surely be replaced with young, vigorous supporters of Roe. Along with Justices Stephen Breyer (age 69) and David Souter (age 68), the court will then have four relatively long-term votes to sustain Roe, needing only the fickle vote of Justice Anthony Kennedy or just one departure among the court’s four conservatives to entrench Roe for decades. That portends another 50 million legal abortions.

On the other hand, if even one liberal justice leaves the court during a Giuliani presidency, there will suddenly be a real prospect of expanding to a reliable, five-vote majority the faction of the court that believes — or, at least, is likely to believe — that Roe was wrongly decided and should be overturned. That prospect would be real because Giuliani has already said, in very clear terms, that he would appoint justices whose approaches to constitutional interpretation are like those of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. (Scalia and Thomas are already on record saying Roe should be overturned.)

Giuliani gets it; he understands that the Constitution leaves abortion policy to legislators and voters, not judges. The pro-life movement has been fighting to restore that principle since 1973.

Can anyone, even Giuliani himself, guarantee that any justice he appoints to the Supreme Court will vote to overturn Roe? Of course not. Circumstances might conspire to make President Giuliani, like President Reagan in 1988, feel politically compelled to appoint a “moderate” like Kennedy. Or President Giuliani might, like the first President Bush, be misled into appointing a liberal wolf in conservative sheep’s clothing like Souter. Or President Giuliani might, like the current President Bush, inexplicably nominate someone who is personally loyal but ideologically untested like Harriet Miers.

Those are risks worth taking. By contrast, the risk that Hillary Clinton or another Democrat as president will nominate justices committed to reaffirming Roe is 100 percent.

Some pro-life conservatives have said they feel compelled to refrain from supporting Giuliani, even if he is the Republican nominee, because they pledged never to support a pro-abortion candidate for president.

To that I say, with no hesitation: You simply made the wrong pledge. The correct pledge to make, from a pro-life perspective, is always to vote for the outcome that stands the greatest chance of saving the lives of unborn children. Without question that means supporting Giuliani if he is the Republican nominee.

Joseph C. Smith Jr. is a former deputy attorney general of Colorado. He practices law in Denver.

• December 17, 2007

  8:32 p.m.

  Suggest removal

  Spencer writes:

  "Like it or not, the single greatest obstacle to reducing — and ultimately eliminating — abortion in the United States is the Supreme Court’s 1973 Roe V Wade decision"

  Been over this time and time again. The biggest obstacle is a lack of common sense regarding sex education and availability of birth control. Lowest rates of abortion are in Western European countries with liberal laws regarding abortion. The root cause of abortion is an unwanted pregnancy. That is ridiculous in 2007

• December 21, 2007

  3:25 p.m.

  Suggest removal

  Queen_Gorgo writes:

  "Until the Supreme Court reverses that decision, activist courts will continue to strike down even common-sense abortion regulations such as parental notification and partial-birth abortion bans."

  Both of which have passed muster with the SCOTUS, so how does your baseless assertion have any merit?