Alito and Abortion

Without having looked much at what’s already out there (except for what I’ve seen and heard since his nomination), I thought the confirmation hearings for Judge Samuel Alito might make a good subject for my first substantive post. As with always, the question of what a nominee would or wouldn’t do with regard to Roe v. Wade is foremost in many people’s minds. However, given the Bush administration’s view of executive authority in the post-9/11 world, I am happy to see attention paid to Alito’s judicial philosophy regarding executive power and the separation of powers, as well as the independence of the judiciary. I believe that there are actually more important issues than abortion. However, I will focus on that issue here.

I believe firmly in a woman’s right to choose to terminate a pregnancy during the first trimester. However, I do not adhere to the notion that, should a future Supreme Court rule to strike down Roe, that somehow the issue would be settled to the detriment of a right to privacy. It would simply shift the debate to where it perhaps now belongs — and has belonged for a long time: Congress.

Consider the typical pattern of the extension of rights throughout U.S. history. The judiciary finds space within the confines of the Constitution and contemporary history to expand the reach of certain protections. Later, Congress follows along by enacting what might be called “enabling legislation,” thereby turing a purely “negative” liberty into something people can really enjoy. Brown v. Board of Education eventually led to the Civil Rights and Voting Rights Acts of the mid-1960s. Look at the debate (not all of them good, in my mind, but at least it’s out of the closet) about gay unions since the Court overturned Bowers v. Hardwick a few years ago.

With all due respect to some of very liberal friends, I simply do not believe overturning Roe will be the end of the world. The status of abortion law right now continues to extend to the states quite a bit of latitude in restricting that “right” in many ways. All Roe really did was “temporarily” suspend the application of anti-abortion laws in many states — states where those law still remain on the books. Roe stands on stilts. Overturning it might actually force our legislators to make some real decisions. They could either (a) specifically protect, by federal law, a woman’s right to choose an abortion during the first trimester, in any state (thus leveling the field in terms of applicability), and/or (b) adopt a constitutional amendment that actually could find reasonable condominium within our conception of rights: that everyone has a right to privacy. Article 17 of the The International Covenant on Civil and Political Rights uses language that actually sounds like something you might find in our own Constitution:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks upon his reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

If Alito wants to make an argument that Roe is a poor substitute for real protective legislation, I’ll go along with that. I don’t think he would Bork himself by implying that the privacy right found in the “prenumbras” of the Constitution, and employed in Griswold v. Connecticut to protect a person’s right to buy contraceptives, is nothing but a judicial fantasy.

Now, let’s see what he does with the separation of powers issue…

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~ by de cive on January 10, 2006.

2 Responses to “Alito and Abortion”

  1. If you had seen the Frontline episode called “The Last Abortion Clinic”, you might be a little more fearful not only that the end of Roe will mean the end to the right of privacy, but that also the landmark Casey v. Webster decision was trulyl the end of it. 98% of all counties in the U.S. have no abortion clinic. The episode was specifically dedicated to the state of Mississippi which now only has one abortion clinic.

    What has occurred in the traditional red states is state legislation that placed restrictions on abortion that on the face seem ‘reasonable’ and yet are not so.

    After seeing the program I came to the conclusion that we’ve been living in a dream world thinking that a woman’s right to reproductive freedom is the law of the land and we got lazy. And in the meanwhile, the Christian right has been using our laziness to gradually eat away at those rights one by one.

    Yet I agree with the one conclusion – overturning Roe v. Wade would not be the end of the world. As one abortion clinic operator in the Frontline program had stated, she sometimes longs for Roe v. Wade to be overturned – then those of us who do support reproductive rights will wake up and get motivated to do something about it!

    I also agree that Roe should not be the only point on which we ‘judge’ Alito’s qualifications for the court. Yet it doesn’t seem to matter – just like Roberts, we’ve heard no substance to provide us with any indication of his position on most issues that he is likely to face.

  2. K2: all of your points are very well taken. The fact that access to abortion (as well as family planning and reproductive health services, generally) is severely limited due to resource limitations in some parts of the country is a genuine problem. Indeed, with the right to privacy and abortion, we have gotten complacent and lazy, such that the fact that even though a so-called right exists, there is increasingly little people can do to enjoy it. This brings into the picture the question of what constitutes a “right.” In the Anglo-American tradition, we like to think of rights as merely limitations or restrictions on government (“Congress shall make no law…”). We are less comfortable with the idea that a right entails a positive duty on the part of the State. At least until we think a little about it.
    Thus, my argument that moving this discussion out of the realm of jurisprudence (which has focused on the negative aspects of the right to privacy) and moving back to the legislature, we might be able to formulate such a “right” in more positive terms.
    Thanks for the comments!

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