- The Washington Times - Tuesday, January 10, 2006

Multiple choice: Which judge criticized the Supreme Court’s Roe v. Wade abortion decision as “heavy-handed judicial intervention”? A: Justice Antonin Scalia; B: Supreme Court Nominee Samuel Alito; C: D.C. Court of Appeals Judge Janice Rogers Brown; D: Justice Ruth Bader Ginsburg? If you guessed D, you are right. But Justice Ginsburg — arguably the most “pro-choice” justice on the Supreme Court — is only one of a growing number of prominent liberal jurists and law professors who have suggested that Roe was wrongly decided.

As Senate Judiciary Committee hearings continue on the nomination of Judge Samuel Alito to the Supreme Court, two distinct paths have emerged for how Judge Alito can negotiate the rhetorical minefield of abortion questioning that has come to dominate Supreme Court confirmation hearings.

He can take the John Roberts path — be cautious, backpedal from earlier statements expressing his belief that Roe was based on a flawed interpretation of the Constitution and say that previous anti-Roe actions simply reflected the views of his employers. Alternatively, he can be bold, make the case that Roe was a dubious exercise of Supreme Court authority with no basis in the Constitution, and remind senators and the public that his position is one held by countless conservative and liberal law professors alike.

In the lead up to the confirmation hearings, many conservative groups seemed to endorse the first path. Rather than pointing out the illogic and unconstitutionality of Roe, they effectively adopted the political left’s pro-Roe litmus test and went out of their way to insist that Judge Alito might not vote to overturn the decision. By doing this, conservative groups implied that a nominee who was committed to Roe’s reversal would be unsuitable. So, instead of arguing that the left’s litmus test is wrong, conservatives simply argued that Judge Alito would pass it.

Conservatives’ reluctance to criticize Roe is understandable. Court watchers recall that it was because of his openness on a variety of social issues, principally abortion, that Reagan Supreme Court nominee Robert Bork’s confirmation bid was steamrolled by the left’s intense and vicious smear campaign. Since then, conservative nominees have been instructed to equivocate on abortion, or face being “Borked” themselves.

The conservative do-not-criticize-Roe strategy is also rooted in misperceptions about public opinion. Polls show a majority of Americans support upholding the landmark 1973 decision. For instance, a July Pew Research Center Poll found that 65 percent of Americans did not want to see Roe overturned, compared to 29 percent who said they wanted it gone. Further, a November CNN/USA Today/Gallup Poll showed only 37 percent of those surveyed would personally want the Senate to confirm Judge Alito if they were convinced that he would vote to overturn Roe v. Wade, while a majority, 53 percent, would vote to deny him a seat on the bench.

Curiously, while polls seem to reveal a pro-Roe public, the American people are actually decidedly ambivalent about abortion. In a May Gallup poll, for example, 53 percent of those surveyed felt abortion should be “legal only under certain circumstances,” while only 23 percent said abortion should be “legal under any circumstances,” the rule set by Roe.

These results are consistent with decades-long trends indicating that while the American people purportedly support Roe, they in fact do not endorse the abortion-on-demand through all nine months of pregnancy that Roe guarantees.

Does the public realize, for example, that Roe is the legal underpinning for partial-birth abortion, a ghastly procedure rejected by three-quarters of the public? Evidently not. The left has done a great job convincing Americans that Roe is the only thing preventing women who abort from getting hauled off to prison for murder.

In truth, Roe’s justification derives from an abstract interpretation of the 14th Amendment’s premise of liberty and the malleable concept of a right to privacy found not in the actual text of the Constitution but, rather, in its penumbras and emanations. The result is the paradox of a generally pro-life nation with an abortion law that’s more liberal than almost any other nation in the West, and the only one that had its law imposed on its people via judicial fiat rather than by the popular will expressed democratically.

If Samuel Alito follows John Roberts’ lead and refuses to address Roe with candor, the Republican-led Senate will likely confirm him easily. But, if he states plainly that he does not see a single reference in the Constitution to a right to abortion, and that many scholars agree with this view, not only would he establish that it is OK to take the position that Roe was wrongly decided, but he could very well initiate a long overdue broader discussion of the merits of the Supreme Court’s most notorious decision.

Gary Bauer is president of American Values and chairman of Campaign for Working Families.

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