What are pro-lifers looking for in a presidential candidate? Fed up after more than three decades of court-imposed abortion-on-demand, and now tantalizingly close to realizing the 5-4 Supreme Court majority needed to overturn Roe v. Wade, the court’s decision declaring a constitutional right to abortion, pro-lifers, the conventional wisdom holds, crave just one thing: a president who will appoint pro-life judges to the Supreme Court.
Accordingly, the Republican presidential candidates have spent the last few weeks touting the kind of judges they would appoint if elected president.
None more so than Rudolph Giuliani, who, in California recently, answered a reporter’s question about abortion by discussing judges, repeating his vow to appoint “strict constructionists” (read: anti-Roe/pro-life) to the bench. When pressed to explain how his support for abortion reconciles with his pledge to appoint judges that favor overturning Roe, Mr. Giuliani evaded the question, instead repeating his pledge to nominate judges in the mold of Chief Justice John Roberts and Justice Samuel Alito, both of whose nominations pro-life advocates supported.
The recent unveiling of Mr. Giuliani’s Justice Advisory Committee should go even further in allaying the concerns of some pro-lifers. It’s an impressive team of advisers that includes leading conservative attorneys and legal scholars, including former Bush administration Deputy Attorney General Larry Thompson, filibustered judicial nominee Miguel Estrada and Mr. Bush’s former U.S. Solicitor General Ted Olson.
At first glance, Mr. Giuliani’s strategy would seem shrewd. By focusing on judges, Mr. Giuliani can appease some pro-life conservatives while avoiding the “flip-flopper” label that has encumbered other presidential hopefuls as they seek to explain inconsistencies in their abortion records. By focusing on judges, Mr. Giuliani can say: “Yes, I am pro-choice, but pro-lifers need not worry — I am with you on the issue that counts.”
Unfortunately, Mr. Giuliani’s strategy is founded on a false premise — that presidents cannot do much to affect abortion policy except to appoint judges. In fact, the president can do many things, both concretely and symbolically, to affect federal abortion policy other than appointing judges. Here is a partial list:
• The president can initiate and sign or veto legislation related to abortion. President Bush has signed a number of significant pro-life laws, including the Unborn Victims of Violence Act, which makes it a crime within federal jurisdictions to harm or kill an unborn child as a consequence of an attack on the mother, the federal Born Alive Infants Protection Act, which declares born-alive babies legal persons and protected under the law, and the Partial-Birth Abortion Act, which bans a certain type of late-term abortion. It’s the same legislation President Clinton vetoed twice.
• The president appoints the attorney general, who will either enforce, or not enforce, laws relating to abortion. John Ashcroft, Mr. Bush’s first attorney general, used his authority to crack down on abortionists who ignored the new prohibition on partial-birth abortions. And as President Clinton’s attorney general, Janet Reno vigorously prosecuted violators of the Freedom to Access Clinic Entrances (FACE) law, signed in 1994, which thwarts free speech by preventing pro-lifers from ministering to pregnant women seeking abortions.
• The president also appoints people to other important positions who can adopt appropriate regulations to restrict access to abortions to the maximum degree possible, including the secretary of health and human services, surgeon general and heads of the Centers for Disease Control and National Institutes of Health.
• The president can utilize the “bully pulpit” to make the case for life. President Reagan, designated a National Sanctity of Life Day, issued Personhood Proclamations in 1984 and 1988 and even wrote the ground-breaking “Abortion and the Conscience of the Nation” essay in which he clearly laid down a principle about the sanctity of life and introduced the issue of fetal pain into the public debate over abortion.
• The president can sign executive orders that either permit or prohibit abortions in facilities operated by the Executive branch. George W. Bush signed an executive order that prohibited abortions in military hospitals.
• The president can veto appropriations bills that use taxpayer money to fund abortion and abortion-related services. This is a timely issue, as Mr. Bush may soon be presented with the State Department/Foreign Operations Appropriations bill. In it, congressional Democrats have adopted language that would effectively end the Mexico City policy, a longstanding administrative rule that prohibits U.S. taxpayer funding of international aid organizations that promote abortion as a form of family planning abroad. Fortunately, the administration has issued a statement warning House Speaker Pelosi that it “strongly opposes this legislation, because it includes provisions that are inconsistent with the administration’s international family planning policy.”
With a Democratic-controlled congress, the only obstacle to the taxpayer funding of abortions for millions of poor women in underdeveloped countries is a president willing to stand up and refuse to sign legislation that includes overturning this important provision. President Bush has promised to do just that. Which of the presidential candidates would do the same?
This is not an exhaustive list, but you get the picture. If Rudy Giuliani, or any other presidential candidate, believes his ability to win pro-life votes depends solely on promises about what sort of judges he would nominate, he is mistaken.
Daniel Allott is a senior writer and policy analyst at American Values, a public policy organization.