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Roberts Sticks to Script on Abortion Questions

Times Staff Writer

Since Ronald Reagan’s election as president in 1980, Republicans have run on a platform that calls for overturning the right to abortion established in Roe vs. Wade.

And whenever a Republican president’s Supreme Court nominees come before the Senate for confirmation, defenders of the right to choose abortion want to know whether the justice-to-be supports the GOP’s view on Roe vs. Wade.

Candor in answering that question can be dangerous.

Judge Robert H. Bork, Reagan’s third nominee to the high court, had written that Roe vs. Wade was an illegitimate decision and that its right to privacy appeared nowhere in the Constitution.

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When asked about that opinion during his 1987 confirmation hearings, he restated his view. And the Senate defeated his nomination.

Since then, Republican nominees have responded to the senators’ questions without directly answering whether they would uphold or reverse Roe vs. Wade.

On Tuesday, Judge John G. Roberts Jr. followed that script, assuring pro-choice senators that the court’s precedents were the building blocks of the law and should not be knocked down without good reason. It is a jolt to the legal system to overturn a precedent, he said.

Moreover, the 1973 Roe decision was affirmed by the Supreme Court in 1992, he said: It is now a “settled precedent.”

And when asked, he readily agreed that the Constitution included a right of personal privacy, the doctrine that formed the foundation for Roe vs. Wade.

But in the end, Roberts did not say that as chief justice he would uphold abortion rights. He simply assured the senators that he would not casually overturn Roe vs. Wade.

When pressed, Roberts refused to go further.

He would not agree with Sen. Arlen Specter (R-Pa.), the Senate Judiciary Committee chairman, that the right to abortion was “embedded” in American law and culture.

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Chief Justice William H. Rehnquist had used that word to describe the Miranda ruling and its famous right to remain silent. Though Rehnquist had long opposed the Miranda decision, he wrote an opinion upholding it because it was now embedded in American life.

When Sen. Dianne Feinstein (D-Calif.) asked during Tuesday’s hearings whether Roe vs. Wade had proven unworkable, Roberts refused to state his view. Earlier, he had said the court should reverse rulings that proved to be unworkable in practice, but he would not say whether the abortion right fit that category.

His careful comments on privacy and precedent sounded similar to the words used by other Republican nominees to the high court.

After Bork’s defeat in 1987, Reagan nominated Judge Anthony M. Kennedy of California. He assured senators that he believed the Constitution protected a marital right to privacy, and he was confirmed unanimously.

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Judge David H. Souter of New Hampshire said the same in 1990, and he too won easy confirmation.

Neither stated their views on Roe vs. Wade, but both voted subsequently to uphold the abortion right.

Judge Clarence Thomas had to overcome a hurdle when he was nominated in 1991. In speeches and articles, he had derided the right to privacy as an invented right, and he had praised authors who spoke of abortion as a holocaust.

During his confirmation hearings, Thomas disavowed many of his earlier writings, and he said he was not committed to following the strict original history of the Constitution.

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The liberty protected by the Constitution was “not frozen in time. Our notion of what liberty means evolves with the country. It moves with our history and our traditions,” Thomas said.

Nine months later, after he was narrowly confirmed to the high court, Thomas voted to overturn Roe vs. Wade.


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