The Presidency and Abortion
By Aaron Goldstein (04/12/07)
Rudy Giuliani raised the ire of the editors of National Review when, in an interview with CNN’s Dana Bash, he reiterated his support for taxpayer funded abortions. Giuliani has held this position since his first unsuccessful run for the mayoralty of New York City in 1989. (1)
“We can therefore assume that an America with Giuliani’s favored polices would be a country with more abortion,” write the NR editors in the April 6th edition of www.nationalreview.com, “probably reversing the 15-year trend of decline, including the decline in New York City for which he takes dubious credit.” They called on Giuliani to declare Roe v. Wade a bad decision as President Bush has done or to call for it to be overturned as GOP Presidential hopeful John McCain has done.
Rudy Giuliani could do both these things as well as lead a protest outside an abortion clinic. It would not do a wit of good. The President of the United States, let alone prospective presidential candidates, does not have the power to end legalized abortion in this country.
The President of the United States can do two things where it concerns abortion.
First, the President can appoint justices to the Supreme Court and other federal courts. There is every indication that Rudy Giuliani would appoint conservative justices in the mold of John Roberts and Samuel Alito. This alone ought to be sufficient to assuage the pro-life movement. Of course, what justices do once appointed to the bench is beyond the control of the President. Six of the nine justices on the Supreme Court are appointees of Ronald Reagan and two President Bushes. Roe v. Wade is still the law of the land.
Second, the President can sign bills into law or veto them. How often do bills pertaining to abortion come across the President’s desk? Not very often. Yes, President Bush did sign the Partial Birth Abortion Ban Act into law on November 5, 2003. The law was struck down in several U.S. District Courts. The federal government appealed that decision but the ruling was upheld in the Eighth Circuit Court of Appeals on July 8, 2005. Attorney General Alberto Gonzales asked the Supreme Court to review the case. Oral arguments were heard concerning Gonzales v. Carhart on November 8, 2006. The Supreme Court is expected to issue a ruling by the end of its session in July 2007. Even if the Supreme Court should overturn the Eighth Circuit’s ruling the decision will, at most, put some parameters on late term abortion but won’t ban it outright. Again, Roe v. Wade still stands.
Where Rudy Giuliani is concerned he has clearly stated that he has no interest in changing current federal law concerning the funding of abortions which is only allowable in the even of rape, incest and where the mother’s life is at stake. While a Democratic Congress might be inclined to test Giuliani by passing a bill that expands the criteria for taxpayer funded abortion. But that bridge can be crossed if and when it comes.
One might disagree with Giuliani in his view that abortion is a constitutional right or that a strict constructionist judge would uphold Roe v. Wade but none of his other declared GOP rivals can be thought of as purely pro-life. McCain did call for Roe v. Wade to be overturned last February but in August 1999 McCain opposed its repeal on the grounds it would force women to seek back alley abortions. (www.washingtonpost.com/wp-srv/politics/campaigns/wh2000/stories/mccain082499.htm). Mitt Romney, too, has effectively called for Roe v. Wade to be repealed but when running for elected office in Massachusetts in 1994 and 2002 he proclaimed abortions ought to be safe and legal. During the 2002 gubernatorial debate against Democrat Shannon O’Brien, Romney stated he would not change the Commonwealth’s liberal abortion laws. If pro-life conservatives have reservations about Giuliani they will have similar reservations with McCain and Romney.
One must ask how much of the Presidency is consumed by the question of abortion. Aside from appointing Roberts and Alito, signing the Partial Birth Abortion Ban Act into law and addressing the annual March for Life in Washington D.C. by telephone I would argue President Bush has spent less than 1% of his Presidency on the question of abortion. The case can be made that the word of the President on abortion or any other public matter can sway public opinion and influence the course of the debate. But in a time of war does a majority of the American public believe who sits in the Oval Office should be determined by their view of abortion be it pro-life or pro-abortion?
Simply put the legality of abortion is not in the hands of the Oval Office. Nor does it rest entirely with the Supreme Court. While there might come a time where the Court will revisit Roe v. Wade it cannot do so on its own whim.
At the risk of sounding cliché, abortion is in the hands of the people. Specifically through state legislatures and referendums. In February 2006, the South Dakota Legislature passed the Women’s Health and Human Life Act. It banned abortion in South Dakota except where the life of the mother was at stake. Yet even the conservative voters in Mount Rushmore state found this measure to be intrusive and 38,000 signatures were gathered in support of a referendum on the question. Given that South Dakota has a population of a little more than 750,000 it is well worth noting that more than 5% of the populace signed the petition.
In November 2006, 55% of South Dakota’s electorate voted to repeal the law. The repeal is all the more remarkable when one considers that same day South Dakota passed a constitutional amendment banning same sex marriage. There was an effort to reintroduce the law in January 2007 with provisions that would allow abortion for rape and incest but the bill was quashed by a GOP led Senate committee the following month. South Dakotans might not want abortion on demand but neither do they want a total ban. The same can likely be said for the rest of the country.
Our next President has a great deal to say and do about our future commitments in Afghanistan and Iraq and how we will face the war on Islamic fundamentalist terrorism. Unless the GOP nominates Chuck Hagel, there is a clear choice between Republicans and Democrats when it comes to these matters. Our next President does not have a great deal to say or do concerning the question of abortion. Unlike past elections, there isn’t a clear choice between Republicans and Democrats, let alone amongst Republicans, when it comes to the abortion question. As long as Roe v. Wade is the law of the land, Presidential candidates will be queried on their views of abortion. But whatever their views, abortion is a question that will not be resolved by the White House.
1) http://www.cnn.com/POLITICS/blogs/politicalthinker/2007/04/giuliani-stands-by-support-of-publicly.html
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