Since Justice Sandra Day O'Connor's retirement from the Supreme Court in July, members of the Democratic left have been itching to pummel a Republican nominee on abortion. Chief Justice John Roberts didn't fit the bill, since he had never made any controversial statements about Roe v. Wade -- or anything else for that matter. Judge Samuel Alito is a different matter, however.
In a 1985 document released on Nov. 15, Alito told the Reagan administration that he would be proud to argue "the Constitution does not protect a right to an abortion." This revelation produced gasps of outrage among Senate Democrats. Senator Chuck Schumer (D-N.Y.) called Alito's statement "the strongest statement we've seen from a nominee on this very controversial subject for a long time," and warned, "this puts a much stronger onus on Judge Alito to answer questions on this subject."
Naturally, Alito backed off from his 1985 statements. Alito would be a fool to stand behind his eminently correct appraisal of Roe in 1985; to do so could cost him dearly. At this point, any judge who openly opposes Roe v. Wade will likely be denied a seat on the Supreme Court, despite Republicans' 55-vote majority in the Senate. Pro-choice advocates like Senator Arlen Specter (R-Pa.) sank Judge Robert Bork's nomination in 1987 when Bork refused to pay humble obeisance to the first "right to privacy" case, Griswold v. Connecticut. They would certainly do the same to Alito if he did not at least mouth words about Roe's value as precedent.
If Alito has any jurisprudential integrity at all, paying homage to Roe will be an exercise in playacting. Roe is clearly a wrongly decided case. The Roe decision itself is not based in the Constitution, and it does not pretend to be; even Justice Blackmun, the author of the Roe opinion, could not come up with a constitutional mandate for a right to abortion. The legal argumentation in Roe amounts to this sentence: "This right of privacy, whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
That's it. No justification. No explanation. The Supreme Court "feels" that the Constitution mandates abortion, and poof! It is so. After all, one provision or the other can be read broadly enough to encompass the justices' personal policy preferences. As Justice Antonin Scalia dissented in Planned Parenthood v. Casey, a case upholding Roe, "The Imperial Judiciary lives."
Despite Roe's obvious transfer of power from democratically elected legislatures to an unelected oligarchy, Americans continue to support Roe when polled. At the same time, Americans show consistent support for some restrictions on abortion, particularly late-term elective abortions. Why the inconsistency?
The answer is simple: Most Americans do not understand what Roe actually does. Most Americans believe (wrongly) that if Roe were overturned, abortion would automatically become illegal across the land. That is exactly what pro-abortion advocacy groups want Americans to believe. Dr. Wendy Chavkin, a professor at Columbia University who chairs Physicians for Reproductive Choice and Health, for example, states that overturning Roe would force "American women … to [go] outside the health care system and [act] like they're in a Third World country."
This is blatantly false. If Roe were overturned, the people in each state would decide abortion policy for themselves. Voters in California would decide abortion policy in California; voters in Alabama would decide abortion policy in Alabama. Some states would likely restrict abortion heavily; others would allow free access to abortion. Instead of a broad national answer dictated by the Supreme Court, we would have a plethora of answers dictated by the people.
But liberal Democrats, left-wing Republicans and liberal members of the Supreme Court are afraid of the people's voice on this issue. They view Americans as benighted provincials, Bible-thumping morons. They would prefer that the people sit down and shut up when it comes to abortion policy. That's why Judge Alito will remain silent when asked about Roe: If anyone like Judge Alito ever tried to give power back to the people on abortion policy, the reign of the elites would be at an end. Then what would Chuck Schumer and Arlen Specter do with their spare time?