Giuliani Shifts Stance On Abortion Method

The GOP candidate’s support for a high court ruling contrasts his position in 1997.

The LATimes reports:

The Supreme Court decision Wednesday upholding a ban on a controversial abortion procedure heightens the issue's visibility in the 2008 presidential race and spotlights a shift in position by Republican candidate Rudolph W. Giuliani.

The former New York mayor and other top Republicans vying for the White House welcomed the ruling while leading Democratic contenders said they deplored it.

Giuliani, the only major Republican candidate who supports abortion rights, has tried for months to mollify conservative critics.

On Wednesday, he praised the court for upholding the ban on the midterm procedure. "The Supreme Court reached the correct conclusion in upholding the congressional ban on partial-birth abortion," Giuliani said in a statement released by his campaign. "I agree with it."

His praise for the ruling contrasts his position while seeking reelection as mayor in 1997. On an abortion rights group's questionnaire, Giuliani circled "yes" next to the question of whether he would oppose "legislation that would make criminals of doctors who perform intact D&X abortions" — the technical term for what critics call "partial-birth" abortions.

Kelli Conlin, president of the abortion rights group, now known as NARAL Pro-Choice New York, accused Giuliani of "flip-flopping." "I am absolutely astounded that Mayor Giuliani would do a 180-degree pivot on his former position," she said.

Asked to explain his change in views, Giuliani spokeswoman Maria Comella said the 2003 ban upheld Wednesday included "an appropriate exception for threats to the life of the mother."

In addition to supporting abortion rights, Giuliani supports public funding of abortion. But he often says he hates abortion and would advise women not to have one. He has also vowed to appoint "strict constructionists" to the federal bench, a term antiabortion groups often use to refer to judges who would overturn Roe vs. Wade.

But on Saturday, Giuliani irked abortion opponents by telling a group of Iowa Republicans that the party "has to get beyond issues like that."

"That wasn't received very well by the pro-life movement," said Jim Backlin, vice president for legislative affairs at the Christian Coalition of America.

For Republicans, abortion is a key issue in the 2008 race for the White House. Sen. John McCain of Arizona has highlighted his support for outlawing abortion in an effort to mend his own frayed relations with conservatives. Mitt Romney, who supported abortion rights when he ran for Massachusetts governor in 2002, now describes himself as "pro-life," fueling accusations that he vacillates on core issues for political gain.

Anti-abortion activists look to build on court victory

Gonzales vs. Carhart - Elated and emboldened, anti-abortion activists in state after state are planning to push for stringent new limits on second- and third-trimester abortions in the hopes of building on their victory Wednesday at the Supreme Court.

The LATimes reports:
By a 5-4 vote, the justices upheld a federal ban on a procedure critics call "partial-birth abortion," which involves partially delivering the fetus, then crushing its skull. The ruling included strong language asserting the state's "legitimate, substantial interest in preserving and promoting fetal life."

Advocates on both sides of the abortion debate predicted the ruling would spur a flood of legislation.

"We're moving beyond putting roadblocks in front of abortions to actually prohibiting them," said Troy Newman, president of Operation Rescue, a national anti-abortion group based in Wichita, Kan. "This swings the door wide open."

He and other strategists said they hope to introduce legislation in a number of states that would:

-- Ban all abortion of viable fetuses, unless the mother's life is endangered.

-- Ban mid- and late-term abortion for fetal abnormality, such as Down syndrome or a malformed brain.

-- Require doctors to tell patients in explicit detail what the abortion will involve, show them ultrasound images of the fetus and warn them that they might become suicidal after the procedure.

-- Lengthen waiting periods so women must reflect on such counseling for several days before obtaining the abortion.

It is far from certain that the Supreme Court would uphold all these proposals. But anti-abortion activists clearly feel momentum is on their side.

In particular, they're pleased that the court upheld an outright ban -- with no exceptions -- on a surgical procedure performed in the second trimester, when the fetus is too large to be evacuated through a suction tube.

For more than 30 years, the Supreme Court has required every major restriction on abortion to include an exception waiving the law if a woman's physical or emotional health is at stake.

As a result, many abortion bans have been largely symbolic. At least 40 states, for instance, outlaw abortion of viable fetuses -- but because of the health exception, doctors still can terminate such pregnancies if they certify that the woman suffers depression or anxiety.

Abortion opponents consider that a major loophole, leading to what they call "abortion on demand." The ruling Wednesday gave them hope for a new standard. The procedure at issue is used only rarely -- it's more common in second-trimester abortions to dismember the fetus inside the womb -- but abortion doctors had argued that they should be able to use it when they considered it better for the woman's health. The justices disagreed.

"I'm ecstatic," said Leslee Unruh, an anti-abortion activist in South Dakota. "It's like someone gave me $1 million and told me, 'Leslee, go shopping.' That's how I feel."

She spent the day conferring with attorneys on how to leverage the ruling to maximum effect in the states: "We're brainstorming and we're having fun."

Abortion-rights attorney Katherine Grainger predicted that the ruling would "open the floodgates" in state after state.

"The state's interest in the fetus has now been elevated above the woman's health, whereas before, the women's health always trumped," said Grainger, who directs state policy for the Center for Reproductive Rights. "States are going to push the boundaries and try to restrict access on all fronts."

Because most state legislatures have just a few more weeks in session, Grainger said she expects the bulk of the proposals to come next year. When the bills are filed, anti-abortion activists plan to pursue two strategies that won tacit endorsement in the Supreme Court ruling.

First, they intend to try stirring public discomfort about specific abortion techniques. The Supreme Court opinion referred to the partial delivery of a live fetus during an abortion as "shocking." Activists plan to argue that other, far more common, methods of ending pregnancy are just as distasteful.

"This procedure was outlawed because it was exposed. If every procedure were exposed in this way, they would all be deemed equally cruel," said Terri Herring, an anti-abortion lobbyist in Mississippi. She envisions introducing bans on one procedure after another in an attempt to build on Wednesday's ruling.

That could be an effective strategy, said Ted G. Jelen, a political scientist who studies abortion politics at the University of Nevada, Las Vegas. "If they can shift the debate to what happens to the fetus, rather than who decides, that's a useful frame for them," he said.

The second linchpin of the anti-abortion strategy is the testimony of women who have had abortions -- and regret them.

Kennedy's ruling cited an affidavit from Sandra Cano, whose lawsuit in the 1970s established the health exception. (Back then, she was referred to as "Mary Doe" to protect her privacy; the case was Doe v. Bolton.) Cano now says her abortion caused her lasting psychological trauma.

The justices found her testimony compelling. Though they said they could find "no reliable data to measure the phenomenon," they described abortion as "fraught with emotional consequence."

"That's very good, strong language and I think it sets the foundation for future rulings," said Anne Newman, policy director for Operation Outcry, which has collected 2,000 affidavits from women remorseful about their abortions. Their written testimony is making the rounds of statehouses.

Abortion-rights supporters have tried to fight back against such tactics. They've told the stories of women who were raped or who felt they had no choice but to abort a severely deformed fetus. They've argued that abortion restrictions fall most heavily on the young and the poor. And they've tried to rally broad support for reproductive freedom.

"This is going to be a wake-up call for Americans who care about women's health," said Nancy Northrup, president of the Center for Reproductive Rights.

Political scientist Alan Abramowitz at Emory University said it was too early to know how the debate will unfold -- though he's certain it will be polarizing. As he put it: "This will exacerbate the divisions that already exist."

Newsweek: How History Will View the Court

Final Ruling: The legal academy may still be blasting Bush v. Gore, but fears that the court would forfeit the public trust were overblown.

In Newsweek:

Last January, a month after the supreme court handed down its hugely controversial decision in Bush v. Gore--ending the month-old election stalemate and turning the White House over to George W. Bush--legal scholars across the country joined in protest. In a full-page ad in The New York Times, 554 law professors accused the high court of "acting as political proponents" for Bush, and "taking power from the voters." Worse, the ad scolded, "the Supreme Court has tarnished its own legitimacy."

That criticism has yet to subside. Some nine months into the Bush presidency, the debate over the ruling among legal scholars goes on. Many of the country's most respected legal minds have weighed in on Bush v. Gore. The critics contend the court should never have taken the case in the first place. It was a matter of state law, and should be left to state courts, as is the tradition, they argue. The majority's claim that the Florida State Supreme Court's recount procedures violated the Constitution's equal-protection clause is both novel and out of whack with conservative doctrine, they add. And they smirk at the justices' suggestion that their legal analysis should not carry the power of precedent.

The attacks are framed in unusually unflattering terms. Here's a sample. Yale Law School's Bruce Ackerman: "A blatantly partisan act, without any legal basis whatsoever." Harvard's Alan Dershowitz: "The single most corrupt decision in Supreme Court history." American University's Jamin Raskin: "Bandits in black robes."

But do such judgments reflect the merits of the ruling itself, or the professors' own ideological bias? It's hardly a secret that legal academia is a liberal bastion. Conservatives generally defend the result. There are dissenters, but the most forceful ones don't want their names in the newspaper. In the judgment of one such conservative legal thinker, the court's equal-protection argument was "laughable," and, he adds: "I think history will judge the decision harshly." He and many others have suggested that the court's conservatives would have handed down a far different ruling if Bush had been the one demanding a manual recount, and Gore had been demanding that it be stopped. In a recent book, U.S. court of appeals Judge Richard Posner, a highly respected Reagan appointee with liberal views on some issues, was kinder to the justices. He argued that the decision was poorly reasoned and badly written--but in the end fundamentally right, a "kind of rough justice" that was necessary to avert a political crisis threatened by the Florida court, which had "butchered" Florida's election laws and behaved like a "banana republic" in rigging an unreliable process for the recount.

As the academic establishment tells it, Bush v. Gore left the Supreme Court practically in ruins, and caused Americans to lose faith in the court's ability to put the law above politics. But is that true? Do Americans hold the court in lower esteem than they did a year ago? No.

Historically, Americans have ranked the court higher than Congress and the president in confidence ratings, and those ratings have not diminished in the months since the decision. In a Gallup poll, for instance, 49 percent of those surveyed expressed "a great deal" or "quite a lot" of confidence in the court immediately after the election ruling; 50 percent said so this June. That's a smidgen higher than the court's 47 percent approval rate in June 2000, long before the big controversy. It's hardly a surprise that the court is less popular among Democrats than before, and more popular with Republicans. Eighty-eight percent of Bush voters and only 19 percent of Gore voters polled by NEWSWEEK last December thought the decision was fair.

The deeper question is how the court will look in the cold, impartial eyes of history. A hard question to answer, especially since those eyes are neither cold nor impartial. Historians, like law professors, are often influenced by their own political world views. What's more, Bush himself may influence how future scholars judge Bush v. Gore. If Bush is ultimately considered a successful president, historians may come to look kindly on the court decision that put him in the White House. And vice versa.

No matter what history decides, the ongoing dispute has certainly raised the high court's profile in the minds of the public. The television networks think Americans are just dying to know what really goes on behind that crimson curtain. Not one, but two Supreme Court dramas will debut on TV in January. One, on ABC, stars Sally Field as a liberal justice. The other, on CBS, stars James Garner as the chief justice. Law professors will argue about the fate of the court for years to come. But for Hollywood, at least, the verdict is in.