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Produced for LMC-TVbyFran Snedeker |
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Produced for LMC-TVbyFran Snedeker |
[Jan 11, 2006]
Supreme Court nominee Judge Samuel Alito on Tuesday during questioning before the Senate Judiciary Committee said the statement he made in 1985 that the Constitution does not protect the right to abortion was a "true expression of my views at the time," but he added that long-standing Supreme Court decisions deserve respect and that he would approach abortion-rights cases "with an open mind," the Washington Post reports (Babington/Becker, Washington Post, 1/11). Alito in a 1985 job application to become deputy assistant to former Attorney General Edwin Meese wrote that he "personally believes very strongly" that "the Constitution does not protect a right to an abortion" (Kaiser Daily Women's Health Policy Report, 1/10). Alito on Tuesday said that if abortion-rights cases were to come before him as a Supreme Court justice, "the first question would be the question that we've been discussing, and that's the issue of stare decisis" -- the legal term for respecting precedent. He added, "And if the analysis were to get beyond that point, then I would approach the question with an open mind, and I would listen to the arguments that were made." Judiciary Committee Chair Arlen Specter (R-Pa.), who supports abortion rights, asked Alito if he agreed with some legal analysts' assertion that Roe v. Wade, the 1973 case that effectively outlawed state abortion bans, and the 1992 Planned Parenthood v. Casey case, which reaffirmed Roe, should be regarded as "super-precedents" (Stevenson/Lewis, New York Times, 1/11). Alito responded, "Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents" (AP/Raleigh News & Observer, 1/11). The nominee did say that he agreed with "the underlying thought" that when precedents like Roe are reaffirmed in later cases the precedent is "strengthen[ed]" (Reinert, Houston Chronicle, 1/10). He did not go as far as saying Roe could not be overturned, adding that following precedent is not "an exorable command," which is the same language former Chief Justice William Rehnquist used when he argued to overturn Roe, the Post reports (Washington Post, 1/11).
Alito "dodged" a question about how he now felt about Roe, saying that he now approaches the issue as a judge in contrast to viewing it from the standpoint of a lawyer, according to the Times (New York Times, 1/11). Alito said he agreed that the Constitution protects free speech when asked by committee member Sen. Charles Schumer (D-N.Y.). Schumer then asked why Alito could not "answer the question of 'Does the Constitution protect the right to an abortion?'" According to the Post, Alito evaded the question. Schumer then said, "[A]ny idea that you are approaching this fresh, without any bias" has gone "by the wayside" (Washington Post, 1/11). Alito also "backed away" from statements he made in another 1985 memo concerning the Reagan administration's strategy in abortion-rights cases, the Baltimore Sun reports (Davis/Shaw, Baltimore Sun, 1/11). In the memo, Alito cautioned the Reagan administration against a "frontal assault" on Roe, suggesting instead that supporting state laws that place restrictions on abortion would more effectively "mitigat[e] its effects" (Kaiser Daily Women's Health Policy Report, 1/10). "I'm not saying that I made the statement simply because I was advocating the administration's position," Alito said Tuesday, adding, "But that was the position I held at the time. And that was the position of the administration" (Baltimore Sun, 1/11). Alito noted that he has both upheld and struck down abortion restrictions during his term on the 3rd U.S. Circuit Court of Appeals, saying, "If I have had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my 3rd Circuit cases" (Cummings/Bravin, Wall Street Journal, 1/11). In 1995, Alito cast the deciding vote on a three-judge panel of the court to strike down a Pennsylvania regulation related to abortions covered by Medicaid, which Congress allowed only in cases of rape or incest or to save the life of the woman. In 1997, he joined an opinion that used Roe as precedent in upholding a New Jersey law that allows parents to sue on behalf of deceased children but not stillborn fetuses (Kaiser Daily Women's Health Policy Report, 11/2/05).
Under questioning by Specter, Alito on Tuesday said he supported the 1965 ruling in the Griswold v. Connecticut case, which provided constitutional privacy protection for married couples' use of contraception, and the 1972 Eisenstadt v. Baird case, which extended the protection to single people (McGough, Pittsburgh Post-Gazette, 1/11). Alito also explained his dissent in 1991 on the Casey case when he heard it on the 3rd Circuit Court (Biskupic, USA Today, 1/11). Alito in the Casey case joined his colleagues on a three-judge panel of the 3rd Circuit Court in upholding certain provisions of a Pennsylvania law that requires doctors to inform women of the potential "medical dangers" of abortion and alternatives to the procedure, but he dissented from a ruling striking down a provision in the law that would have required married women seeking abortions to first notify their husbands. The Supreme Court in a 6-3 ruling upheld the 3rd Circuit Court's ruling to strike down the provision. Rehnquist quoted Alito in his dissent in the case (Kaiser Daily Women's Health Policy Report, 1/9). Committee member Sen. Dianne Feinstein (D-Calif.) on Tuesday asked Alito if he felt that the Supreme Court admonished his dissent by finding that spousal notification treated married women like minors. Alito said his dissent illustrated a difference in the interpretation of whether the provision in the law created an "undue burden" on a woman's access to an abortion -- a precedent previously set by the Supreme Court. Alito told Feinstein, "I think the case law is very clear that protecting the life and health of a mother is a compelling interest throughout the pregnancy" (Egelko, San Francisco Chronicle, 1/11). President Bush in October 2005 nominated Alito, who currently serves on the 3rd U.S. Circuit Court of Appeals, to replace retiring Supreme Court Justice Sandra Day O'Connor, who has said she will remain on the court until her successor is confirmed (Kaiser Daily Women's Health Policy Report, 1/9). The committee is scheduled to resume questioning of Alito on Wednesday (Kuhnen/Henderson, Philadelphia Inquirer, 1/11).