Is Rudy “pro-choice”? Not hardly.

No, but that’s the way he’d spin it in a general election, and the “liberal media” will go along with being spun.

The objective of the “right-to-life” movement at the federal level has long been the overturning of Roe v. Wade, which would return the issue to the states. Only the most fanatical have expressed any hope of a Supreme Court decision giving fetuses the rights of persons under the Fifth and Fourteenth Amendment.

In the minds of the right-to-lifers, Roe v. Wade has always been the primary instance of “judicial activism,” as opposed to “originalism” or “judicial restraint” or “interpreting the law, not making the law” or whatever slogan the wingnuts are using this week to mean “deciding cases the way we want them decided.” (Yes, of course Roe simply applies the reasoning in Griswold, but since there’s not much support for making contraception illegal, that inconvenient fact rarely gets mentioned. See Update below for a correction.)

So when Rudy Giuliani says he would appoint “strict constructionist” judges, he’s pledging to appoint more justices willing to overturn Roe v. Wade; the fact that he sortakinda takes it back by saying there would be no litmus test doesn’t really matter. Nor does the fact that, as a private citizen and a local politician he supports abortion rights; on the one issue where a President has to act on abortion he’s fully committed to the RTL position. And Justice Stevens isn’t getting any younger.

Thus it’s not really right to describe Giuliani, the Presidential candidate, as someone who “supports abortion rights.”

It’s not clear how much this will help or hurt Giuliani in the primaries. But it could make all the difference in the general should Rudy be the nominee. To get the swing votes he would need, Giuliani would want to run as a “moderate” on abortion, which is about as close to the truth as his claim to be an “expert” on terrorism.

I’d like to hope that the press wouldn’t let him get away with it. But perhaps I’d be wiser to hope for a pony. After all, it’s not quite impossible that a pony might appear, and indeed the amount of horsesh*t in the newspaper makes it quite plausible that there are in fact ponies nearby. By contrast, wishing that our current cadre of political reporters could become capable of resisting this sort of GOP spin would, like a second marriage, represent the triumph of optimism over experience.

Footnote No, I don’t think this is “conservative media bias” Robin Toner probably votes Democratic. I do think it’s a huge structural advantage for Republicans.

Note that there’s no hint in the story of a tension between pleasing the anti-abortion fanatics in the GOP base and appealing to general-election voters.

Now try to imagine a story about Democratic candidates and the teachers’ unions that didn’t stress that angle, and clearly imply that supporting public-employee concerns reflects base pandering to a special-interest group. You can’t? Neither can I.

Update A conservative (though not especially RTL) reader thinks I’m misreading Giuliani:

Sure, “as a private citizen and a local politician he supports abortion rights; on the one issue where a President has to act on abortion he’s fully committed to the RTL position.” But any rational person would conclude that he’s LYING about the latter. It’s not even a particularly plausible lie. It’s certainly not taking in many pro-lifers! (We pro-gunners aren’t drinking he “I’m suddenly a federalist!” koolaid, either.)

This is one of those lies politicians tell occasionally, that they don’t really expect to be believed. It’s more an effort to give plausible deniability to potential supporters who don’t *really* give a damn about the social issues Rudy has trouble on, but who need some cover because they can’t afford to be seen not caring about them. They just come out for him, pretending to have fallen for the lies, and hopefully their followers decide that they’re gullible, rather than secretly on the other side.

I happen to think it would be poetic justice if he tanked because the people he’s pandering to weren’t buying it, AND the people opposing them did. (That’s what happened during the Clinton impeachment dive, to the Republicans; Democrats got mad because they thought it was serious, and Republicans because they could tell a dive when they saw one.)

Of course, I have no idea what Rudy believes, in his heart of hearts, other than that Rudy and his friends should have power and that people who aren’t like Rudy are BAD and deserve to suffer. If the pro-lifers want a candidate who actually shares their beliefs, as opposed to a candidate who will serve their goals, Rudy isn’t their guy.

But do I think he’d appoint more Scalia/Thomas/Alito/Roberts types to the Court? Absolutely! Why wouldn’t he? I hope my correspondent is right, and that Rudy’s waffling screws him up one side and down the other. But from the viewpoint of those who are pro-choice, he’d be a disaster, and they shouldn’t be taken in.

Update A reader learned in the law offers a correction:

It is possible (I’d argue it’s wrong, but possible) to see Roe as a straightforward application of Eisenstadt; it isn’t a straightforward application of Griswold. Griswold focused on the well-established principle of marital privacy (which shows up in other contexts, such as compelled testimony). Eisenstadt is where the focus shifts to sexual decisions as themselves private, as opposed to arguing that sexual decisions within a marriage are, like other decisions within a marriage, privileged.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: