Alito Confirmation Hearings: on Abortion

John Roberts: Roe v. Wade is more than settled as precedent

ROBERTS: “Well, beyond that. It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.“

SPECTER: ”You went on to say then, ‘It’s a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedental value.’“

ROBERTS: ”I think the initial question for the judge confronting an issue in this area, you don’t go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding.“

Jon Kyl: Nominees should not reveal pre-determined positions on Roe

ALITO: There’s a case involving abortion before the court this term, and they come up with some regularity. Most of them involve the application of Roe or the application of other precedents that build on Roe.

KYL: I would defend your right to decline to say in advance how you would rule on matters that could come before you. Perhaps you could tell us the reason for the rule.

ALITO: To my mind, the most important reason is that to do that would undermine the entire judicial decision-making process. If a judge announced what he or she thought about the ultimate legal issue, [the entire case] would be rendered meaningless.

Lindsey Graham: Ginsburg would get rejected today for outspokenness on Roe

“The conflict is not simply one between a fetus’ interest and a woman’s interest.... As long as the government paid for childbirth, the argument proceeded, public funding could not be denied for abortion. By paying for childbirth but not abortion, the government increased spending and intruded upon or steered a choice Roe had ranked as a woman’s fundamental right.“

GRAHAM: That writing suggests from her point of view as the author of that article that not only is Roe an important constitutional right, that government ought to pay for abortions in certain circumstances. If she were here today and a Democratic president had nominated her and we take on the role that our colleagues are playing against you, not only would she not have gotten 96 votes, I think she would have been in for a very rough experience.

Richard Durbin: Troubled that Alito 1985 memo shows closed mind on abortion

ALITO: The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General’s office. But that was 20 years ago and a great deal has happened in the case law since then. Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

Richard Durbin: Doesn’t condemn converts to pro-choice, since he did

Ruth Bader Ginsburg: Government should fund abortion and childbirth equally

“The conflict is not simply one between a fetus’ interest and a woman’s interest.. Also in the balance is a woman’s autonomous charge of her full life’s course, her ability to stand in relation to men, society and to stay as an independent, self-sustaining equal citizen. As long as the government paid for childbirth, the argument proceeded, public funding could not be denied for abortion, often a safer and always a far-less expensive course short and long term. By paying for childbirth but not abortion, the government increased spending and intruded upon or steered a choice Roe had ranked as a woman’s fundamental right.“

GRAHAM: That writing suggests that not only is Roe an important constitutional right to the author, but that government ought to pay for abortions in certain circumstances.

Samuel Alito: Stare decisis is first step; then an open mind on abortion

ALITO: What I have said about Roe is that if it were -- if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important. If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

Samuel Alito: Was against Roe in 1985, but a lot has happened since then

ALITO: The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General’s office. But that was 20 years ago and a great deal has happened in the case law since then. Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

Samuel Alito: Roe v Wade is important precedent but not settled law

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes--in Casey--based on stare decisis.

DURBIN: Is it the settled law of the land?

ALITO: If “settled” means that it can’t be reexamined, then that’s one thing. If “settled” means that it is a precedent, then it is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels.