Abortion remains the unbridgeable divide in American politics and constitutional law, a fact that was on display during the third day of Senate hearings on the nomination of Judge Samuel A. Alito Jr. to the Supreme Court.
For much of the day Wednesday, Alito -- who would probably cast the deciding vote on several pending abortion cases -- was a silent witness as senators told him why the Supreme Court should preserve or reverse its abortion rulings.
The debate turned on whether the right to abortion was “settled law.” Abortion has been legal since the court’s Roe vs. Wade decision of 1973, and has been upheld several times. Is that long enough to make it settled law, or precedent? And when can precedents be overturned?
The correct answer was in the eyes of the beholder.
Sen. Sam Brownback (R-Kan.) compared Roe vs. Wade to the most condemned rulings of the 20th century, decisions that have been repudiated. He cited the 1927 decision in Buck vs. Bell, which upheld the forced sterilization of women who were deemed mentally deficient, and the 1944 ruling in Korematsu vs. United States that upheld the mass detention of Japanese Americans during World War II.
Brownback also noted that the court’s 1896 Plessy vs. Ferguson ruling that upheld forced racial segregation remained as a precedent for twice as long as Roe vs. Wade has been on the books.
Alito agreed. The Supreme Court was “spectacularly wrong” when it upheld segregation, he said.
The sterilization ruling is best remembered for Justice Oliver Wendell Holmes’ offhand comment that “three generations of imbeciles are enough.” Yes, Alito agreed again. The decision “is repugnant to the traditions of our country,” he said.
Brownback had made his point: Precedent, even a “settled precedent” of the Supreme Court, is not always a good thing. “There are places where the court gets it wrong, and hopefully they will continue to be willing to revisit it,” the Kansas senator told Alito.
Two years ago, the court overturned precedents rejecting a right to gay sex and allowing the death penalty for minors.
The high court has never agreed on a clear rule for when precedents should be overturned.
Earlier, Sen. Richard J. Durbin (D-Ill.) had almost pleaded with Alito to accept the fact that Roe vs. Wade was settled as the law, too late for reversal.
He noted that Alito said he agreed with the 1966 decision Griswold vs. Connecticut, in which the court struck down a state law banning contraceptives for married couples. The case first established a right to privacy in the Constitution that later became the underlying principle for Roe vs. Wade.
“Why can you say unequivocally that you find constitutional support for Griswold,” Durbin asked, “but cannot bring yourself to say that you find constitutional support for a woman’s right to choose?”
Alito would not budge. “Roe vs. Wade is an important precedent of the Supreme Court ... and it’s been on the books a long time,” he said. But he refused to describe Roe as settled.
The nominee said he would not call it settled “if settled means it can’t be reexamined.”
He later cited Brown vs. Board of Education, the 1954 ruling against school segregation, as an example of settled law because, unlike Roe, the segregation ban was not likely to come before the high court again.
The backdrop for the abortion debate was Alito’s 1985 job application for the Reagan White House in which he said he strongly believed “the Constitution does not protect a right to abortion.” He said Wednesday that the words “were a true expression of my views at the time,” but he refused to say whether they represented his view today.
The judge said it would be inappropriate to discuss his current views on abortion because several abortion cases were before the Supreme Court.
If confirmed, Alito would be in a position to cast the deciding vote on a case over whether Congress can impose a national ban on a disputed late-term abortion procedure that critics call “partial birth” abortion.
Five years ago, the high court struck down a similar state law, saying that “substantial medical authority” showed that a doctor’s removal of a small, intact fetus was often safer for the mother than the other common abortion procedure at that stage of pregnancy. There was less bleeding and risk of infection, doctors said.
But the decision came on a 5-4 vote, with retiring Justice Sandra Day O’Connor in the majority. Two years ago, Congress called the abortion procedure “gruesome and inhumane” because the skull of the fetus was crushed. President Bush signed the bill into law, but it has been caught up in legal challenges.
The justices may decide to take up the case, Gonzales vs. Carhart, as soon as Friday. If so, the court will hear arguments in April and decide the issue by July.
Several Democrats, including Sen. Dianne Feinstein (D-Calif.), said they would not vote to confirm Alito unless they were convinced he would uphold the right to abortion. Republicans, with the exception of Sen. Arlen Specter (R-Pa.), indicated they would support Alito in part because they believed he would restrict or repeal the right to abortion.
“I’m going to try one more time,” Feinstein began in her afternoon round of questioning, hoping to pin down the nominee on whether Roe vs. Wade was settled.
A few minutes later, she gave up and moved on to less controversial topics.