Michael Dorf on Giuliani's Abortion Views

Michael Dorf argued on Findlaw yesterday that, past flipflopping aside, Giuliani's current position on abortion is internally consistent:

But beyond the question of consistency over time is the question whether Giuliani's current position is internally consistent. He says he "hate[s]" abortion, but that he supports "a woman's right to choose," even as he would appoint Supreme Court Justices whose judicial philosophy might lead them to overturn Roe. If you're keeping score at home, that means Giuliani is pro-life in his personal views, pro-choice in his political views, and somewhat cryptically anti-Roe as a matter of constitutional law.Nonetheless, Giuliani's current position--personally pro-life, politically pro-choice, constitutionally anti-Roe­--is, in fact, a perfectly coherent one. But to make that case to the American people will require him to explain some important nuances. . . .

It is easy to generate examples of behavior that one might condemn as wrong, but which should nonetheless not subject those who engage in it to any legal penalty. Consider adultery. Until relatively recently, adultery was a criminal offense in most American jurisdictions. Yet today, we recognize that while adultery may be considered sinful on religious grounds, and while it can represent a betrayal that, when discovered, causes real emotional damage, the harm it does is personal--and thus not appropriate for society to address through the criminal law. . . .

There is an important difference between adultery and abortion, however. Although adultery is not a victimless act, the harm adultery causes is "private," in the sense that it is a personal betrayal. In contrast, abortion, if one believes, as Giuliani apparently does, that it ends a human life, harms one who is purely innocent. Unlike a jilted spouse, a fetus in no way can be said to have made an error in judgment in trusting someone who proved unworthy of that trust.

Nonetheless, one can think abortion morally wrong in most circumstances, yet still oppose its criminalization for fear of the adverse consequences of criminalization itself.

I'm not sure what Dorf means when he says that Giuliani presumably believes that abortion "ends a human life."  If he means that Giuliani views fetuses as persons -- equivalent to a baby or any other born person -- it's hard for me to see Giuliani's position as internally consistent.  Dorf correctly asserts that, in certain circumstances, we choose not to criminalize conduct most would agree is immoral.  However, it's hard to imagine that if people were driven to desperate measures because they could not kill certain people in order to make their own situations better, that we would "oppose criminalization [of this conduct] for fear of the adverse consequences of criminalization itself." 

I suspect the more likely explanation is that, like most of the American public, Giuliani at bottom does not truly believe a fetus is a person, no matter how morally troubling he may find abortion to be.  If that's true, his willingness to allow legal abortion may, indeed, be internally consistent.

(See related posts: Must We Say What We Mean; New York Times on Giuliani's Abortion Views.)