Roberts: Abortion Issue “Settled”
John Roberts may have considerably set back his prospects for getting confirmed as the next Chief Justice of the Supreme Court, telling the Senate that Roe vs. Wade is “settled law.”
Supreme Court nominee John Roberts said Tuesday that the landmark 1973 ruling legalizing abortion was “settled as a precedent,” as he was immediately pressed to address the divisive issue on the second day of his confirmation hearings. “It’s settled as a precedent of the court, entitled to respect under principles of stare decisis,” the concept that long-established rulings should be given extra weight, Roberts told the Senate Judiciary Committee.
President Bush’s choice to succeed the late William H. Rehnquist as chief justice, Roberts focused on a 1992 Supreme Court ruling in Casey v. Planned Parenthood, referring to that as a precedent-setting case in addition to the 1973 Roe v. Wade ruling. In the Pennsylvania case, the Supreme Court voted 5-4 to uphold the core holdings of Roe v. Wade and ban states from outlawing most abortions. The court said states could impose restrictions on the procedure that do not impose an “undue burden” on women. “It reaffirmed the central holding in Roe v. Wade,” Roberts said.
Specter, a moderate Republican who supports abortion rights, asked if the Roe v. Wade decision was a “super-duper precedent” in light of efforts to overturn it. Roberts noted that the Supreme Court itself upheld the basics of Roe v. Wade in the 1992 Casey case. “That, I think, is the decision that any judge in this area would begin with,” Roberts said.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the committee, focused on the balance of power between the executive branch and Congress Ã¢€” and Roberts’ suggestion, in past writings, that favor the presidency and speak dismissively of the legislature.
Specter pressed Roberts on whether the abortion ruling was settled law for him, established only for an appellate judge such as he or “settled beyond that.” “Well, beyond that, it’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not,” Roberts said.
In 1992, Rehnquist wanted to use the Casey case to overturn Roe, but he was stymied by moderate Justice Sandra Day O’Connor, who is retiring. Justice Antonin Scalia wrote a bitter dissent then, and is likely to push the court to revisit the issue. An abortion case will be taken up by the court this fall, but it does not directly deal with the right to an abortion. The Supreme Court’s next term begins Oct. 3.
The mere fact that the Supreme Court rules on something does not make it settled law. Abortion remains the single most controversial issue in American public policy, precisely because many view the Roe precedent as illegitimate. The right to abortion was created in 1973 as an extension of the right to privacy created in 1965. Neither have any but a tangential basis in the Constitution.