John Roberts Talks About Abortion During Senate Judiciary Hearing

National   |   Steven Ertelt   |   Sep 13, 2005   |   9:00AM   |   WASHINGTON, DC

John Roberts Talks About Abortion During Senate Judiciary Hearing Email this article
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by Steven Ertelt Editor
September 13, 2005

Washington, DC ( — Members of the Senate Judiciary Committee wasted little time in firing questions about abortion at Supreme Court nominee John Roberts. Though he discussed abortion from several legal angles, Roberts declined to give his opinion on the controversial 1973 Roe v. Wade decision that ushered in an era of 44 million abortions and, though he discussed it.

"I should not, based on the precedent of prior nominees, agree or disagree with particular decisions and I’m reluctant to do that," Roberts said. "That’s one of the areas, I think, prior nominees have drawn the line."

Roberts also responded to a question about whether he respects judicial precedent. The idea of the question is to get at whether he would vote to overturn Roe, but his answer doesn’t necessarily indicate how he would vote on a potential case.

"I think it is a jolt to the legal system when you overturn precedent … It is not enough that you may think that a prior decision was wrongly decided," Roberts said.

Roberts told the panel that Roe v. Wade is entitled to some measure of respect because it is a long-standing decision.

"It’s settled as a precedent of the court, entitled to respect under principles of stare decisis," — the judicial notion that long-standing decisions deserve additional respect.

That notion is usually applied at the lower court levels with supporters of the concept saying only the Supreme Court should overturn such significant precedents. The current Supreme Court has been willing to overturn precedents on various issues and nothing in Roberts’ comments indicates he would not overturn Roe if given the opportunity.

However, Roberts also referred to a 1992 Supreme Court ruling in Casey v. Planned Parenthood as a precedent-setting case as well. Though the high court upheld Roe, it also paved the way for states to pass a plethora of laws limiting abortions.

Roberts, named by President Bush to replace pro-life Chief Justice William Rehnquist, one of two dissenters in Roe, said he supports the notion of a right to privacy. However, it again provided no indication as to whether he thought that right included a right to abortion.

He said the right to privacy is found in the Constitution "in various ways," including the First, Third and Fourth amendments.

Yesterday, Roberts said he would be an "open mind" on the Supreme Court. But, that wasn’t good enough for Delaware Democrat Joe Biden, a senator who said he would possibly vote against him.

“If I looked only at what you’ve said and written in the past … I’d have to vote no,’’ he said, citing Roberts’ writings opposing abortion and supporting overturning the landmark high court case. “This is your chance to explain what you meant."

But pro-life Sen. Sam Brownback of Kansas said a litmus test on abortion was wrong, especially in light of the poor judicial law found in the Roe case.

"Perhaps the Supreme Court’s most notorious exercise of raw political power came in Roe v. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a constitutional right to abortion," said Sen. Sam Brownback, R-Kan. "The issue had been handled by the people through their elected representatives prior to that time."

Pro-life groups say they’re confident Roberts will uphold COnstitutional principles, which don’t show any right to abortion in the founding document.

"Judge John Roberts has shown a deep respect for the Constitution and in his personal and professional life exhibits the primary lesson that comes from religion–honoring a higher authority above one’s own desires, opinions or preference," says Concerned Women for America’s Wendy Wright.