So: after his disastrous debate performance on the question of abortion, Republican presidential front-runner Rudy Giuliani has apparently decided to recalibrate his position, and will be a sorta-loud, sorta-proud proponent of abortion rights. At the same time, his aides suggest, he may downplay the early-states gauntlet of Iowa, NH, and SC, and stake his candidacy on a smashing win in Florida on January 29 (assuming that state’s decision to move that far up survives pressure from the RNC) and in the quasi-national primary on February 5.To the extent that this “new” position is a lot easier to explain and is consistent with his longstanding record in New York, it makes some sense, but it’s obviously a big gamble. Sure, anti-abortion activists are stronger in relatively low-turnout contests like the Iowa Caucuses than in, say, a California primary. But no one should underestimate the extent to which this is a litmus test issue for broad swaths of conservative GOP rank-and-file voters in almost every part of the country. And while Paul Waldman at TAPPED is right in suggesting that Rudy won’t get much of a pass from social conservatives for whom a politician’s position on abortion is essentially a symbolic reflection of their shared belief that American culture is plunging hellwards, Rudy’s bigger problem is going to be with the significant number of conservatives who really do think Roe v. Wade initiated an ongoing American Holocaust. They will do anything to deny Giuliani the nomination, up to and including reaching agreement on a single alternative candidate if necessary.A more immediate problem for Rudy is that his recalibrated position supporting abortion rights happened to coincide perfectly with a statement in Mexico by Pope Benedict XVI adding his personal authority to the conservative clerical contention that pro-choice Catholic politicians should be denied communion. And right away, the rector of the parish where Rudy’s last church-sanctioned marriage was performed told the New York Daily News that he’d deny Giuliani communion if he happened to show up at the altar rail there.This last news was a bit odd, insofar as it ignored the more obvious reason that Rudy might be denied communion at this particular church, or any other Catholic church: his civil dissolution of the marriage performed there, and his civil remarriage to a woman who had also been married twice previously. I sort of doubt Giuliani is going to be seeking communion anywhere, unless he’s pre-arranged it very carefully with a priest who’s willing to take an enormous amount of hierarchical heat.The Pope’s statement is actually bigger news for the four Catholic Democrats running for president: Richardson, Dodd, Biden and Kucinich. In 2004 John Kerry managed to take communion regularly with only a modicum of church-shopping, despite considerable conservative rumblings about denying him access to the sacrament. That may be a lot dicier for pro-choice Catholic Democrats now, on and off the presidential campaign trail.As for Rudy, putting aside his personal religious convictions, he would be politically smart to just go ahead and leave the Catholic Church under protest. His official Catholicism is very unlikely to survive this campaign. Abjuring it would make him one of millions of American ex-Catholics, without offending the many millions of Catholics who disagree with Church teachings on divorce and abortion but who aren’t visible enough in their views to get denied communion.In terms of Giuliani’s position on abortion, he’s probably waffling his way towards a stance that (1) expresses support for reversal of Roe v. Wade on constitutional grounds, (2) makes it clear he’d appoint federal judges who feel likewise, and (3) suggests that in a post-Roe world, he’d support state-level legislative efforts to protect basic abortion rights, though not from the Oval Office. As a practical matter, reversal of Roe is the major objective of anti-abortion activists, and they’d be happy to take their chances with a technically pro-choice president if that happened. Unfortunately for Rudy, his serpentine path on this subject may have fatally undermined any confidence that anti-choicers could trust him to appoint their kind of Supreme Court justices.
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Editor’s Corner
By Ed Kilgore
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June 25: John Roberts’ Path Not Taken on Abortion
In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:
While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.