National Review's Byron York, in an article in The Hill, puts his finger on the problem that pro-life voters have with former New York Mayor Rudy Giuliani's pro-choice opinion.

Giuliani reached a low point last week at the Republican presidential debate at the Reagan Library in California.

He was asked a simple question: Would the repeal of Roe be a good thing for America?

“It would be OK,” Giuliani answered. Then he added that it would also be “OK” if Roe were upheld.

Whatever.

That was bad enough. But Giuliani made things worse by adding, “I think a judge has to make that decision.”

That was precisely the wrong thing to say to a conservative audience. For them, abortion policy should not be a matter of judicial fiat; it’s a matter for legislatures — elected representatives — to decide. Striking down Roe would not make any abortions illegal, but it would give the people, and not judges, the last word.

Giuliani undoubtedly knows how those conservatives feel. So for him to say that they should all sit tight and see what the judges decide for them — well, he had to know that wouldn’t satisfy anybody.

Washington Post columnist Charles Krauthammer -- also pro-choice -- had a defense of Giuliani's position in Friday's paper.

Democrats are pro-choice and have an abortion litmus test for judges they would nominate to the Supreme Court. Giuliani is pro-choice but has no such litmus test. The key phrase in his answer is "strict constructionist judge." On judicial issues in general he believes in "strict constructionism," the common conservative view that we don't want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs.

However, one strict constructionist might look at Roe v. Wade as the constitutional travesty it is and decide to repeal it. Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so ingrained in society that it should not be overturned.

The problem with this argument is Krauthammer's opening paragraph.

Legalizing abortion by judicial fiat ( Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action.

Can a strict constructionist judge really "decide that after 35 years the habits and mores shaped by Roe v. Wade are so ingrained in society that it should not be overturned" when even a casual observer can see that these "habits and mores" have not taken root after more than three decades?