In the hearing today, Judge Roberts is refusing to give straightforward answers about his views on whether the Constitution protects a woman’s right to choose and whether he would vote to overturn Roe v. Wade.
Roberts repeatedly refused to answer Judiciary Committee Chairman Arlen Specter’s questions about how he’d approach the question of whether to overturn Roe. Roberts told Specter that one criterion for not following the Supreme Court’s prior precedents is if the basis for that precedent has been “eroded” by subsequent developments. Specter tried to pin him down about what that might mean for Roe, but Roberts twice dodged the question:
Specter: But there's no doctrinal basis erosion in Roe, is there?
Roberts: Well, I feel the need to stay away from a discussion of particular cases.
And few minutes later:
Specter: Well, do you see any erosion of precedent as to Roe?
Roberts: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again . . .
Specter: Well, Judge Roberts, I don't know that we're dealing with any specific issue.
Yet again, Specter tried to get Roberts to discuss how his views on precedent might affect his decision of whether to overrule Roe, by noting that Roberts’s mentor, Chief Justice Rehnquist, had agreed to uphold the “Miranda rule,” even though he disagreed with the original Miranda case, because Rehnquist believed that giving Miranda warnings to criminal suspects had become a part of our “national culture.”
Specter: Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade? . . . . [T]hat's the analogy I'm looking for in Roe v. Wade . . . [T]he question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?
Roberts: Well, I think that gets to the application of the principles in a particular case.
And then he declined to answer any further on that point.
A little later in the morning, Senator Hatch asked Roberts about the 1992 case Casey v. Planned Parenthood, stating that in that case the Supreme Court reaffirmed the central holding of Roe but substantially changed its framework. Roberts agreed that the Court in Casey changed the framework set up in Roe (by eliminating a three-trimester analysis and strict scrutiny of abortion restrictions, substituting a weaker “undue burden” standard in its place). Hatch then asked if that means that Roe’s framework has not been workable, and Roberts replied as follows:
Roberts: Well, the question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis [a Latin term that means “to stand by that which is decided”], along with the settled expectations, whether a precedent has been eroded.
These are hardly reassuring answers on whether Roberts would be inclined to overturn Roe v. Wade if he is confirmed to the Supreme Court. But there’s more.
Early this afternoon, Senator Biden questioned Roberts on the Constitutional right to privacy and Roe. As has been widely reported in the media, Roberts affirmed that the Constitution does contain a right to privacy—but his answer is actually cold comfort for those who wonder how this would affect his rulings on women’s reproductive rights. Roberts said “every member of the [Supreme] Court” would agree that the Constitution contains a right to privacy—but recall that three members of the Court don’t think that right extends to a woman’s right to choose. Roberts gave no sign of how expansive he thinks the “right to privacy” is, so his statements on the right to privacy are much less reassuring than might at first appear.
Biden then pointed out that during Justice Ginsburg’s confirmation hearing in 1993, she testified that a law prohibiting abortion would be unconstitutional. Biden asked Roberts if he agreed, pointing out that he had previously cited Justice Ginsburg as a model he would follow in deciding whether to answer questions. Once again, Roberts dodged the key question.
Biden: [Justice Ginsburg] said, quote, “Abortion prohibition by a state controls women and denies them full autonomy and full equality with men. It would be unconstitutional.” What is your view, according to the Ginsburg rule?
Roberts: Well, that is in an area where I think I should not respond . . .
Our concerns about Roberts’s answers on Roe v. Wade are underscored by what his supporters are saying. This morning the blog ConfirmThem.com said this:
Roberts’ answer was brilliant. He made a statement that will satisfy most Americans about privacy while leaving himself enough wiggle room to move the Court on that issue in the future.
A few minutes later, ConfirmThem added:
A top-flight, leading conservative pro-life lawyer with a vibrant Supreme Court practice whose name most readers of this forum would know just walked into the room where I’m sitting. He was thrilled about Roberts’ answers during the dialogue with Specter and indicated his strong approval and endorsement. He explained that Roberts’s answer was carefully framed to provide a basis for revisiting and overturning Roe in the future.
Especially in light of the fact that Roberts signed a brief to the Supreme Court explicitly arguing that Roe v. Wade should be overruled, and has never said that that position did not reflect his own views, there is much reason for concern about what would happen to the right to choose if John Roberts is confirmed. His testimony in the hearing today is anything but reassuring.