Samuel Alito Won’t Call Abortion Case "Settled Law," Democrat Missteps

National   |   Steven Ertelt   |   Jan 11, 2006   |   9:00AM   |   WASHINGTON, DC

Samuel Alito Won’t Call Abortion Case "Settled Law," Democrat Missteps Email this article
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by Steven Ertelt Editor
January 11, 2006

Washington, DC ( — Questioned by pro-abortion Sen. Dick Durbin, the number two Democrat in the Senate, Supreme Court nominee Samuel Alito would not go along with calling the Roe v. Wade abortion decision "settled law." Meanwhile, Durbin mistakenly referred to Alito as the potential vote to overturn the landmark decision.

Durbin referred back to comments Alito made about the Griswold case finding a right to privacy with respect to the use of birth control.

He told Alito he was concerned that he would answer questions about Griswold but not about Roe.

"For you to say that you’re for Griswold … but you can’t bring yourself to say there is a constitutional right to a woman’s privacy … I’m troubled by that," Durbin said.

Alito said Griswold "is not likely to come before" the Supreme Court again "so I feel an ability to comment on that."

"This is what troubles me," Durbin replied, "that you do not see Roe" as a logical extension of Griswold."

"You have left in question the future of Roe v. Wade," Durbin added.

Alito again described Roe as a precedent, but would not go along with calling it a "super-precedent."

Durbin asked Alito, as he had asked Chief Justice John Roberts, whether Roe was "settled law." Alito wouldn’t agree with that description.

"If settled means it can’t be reexamined, that’s one thing. If settled means it is a precedent entitled to respect as stare decisis … then it is a precedent entitled to respect under stare decisis," he explained.

Roe is "an issue that is involved in a considerable amount" of litigation before the high court.

Durbin said he and others were concerned that Alito would become the fifth and deciding vote to overturn the Roe v. Wade case.

"You have refused to refute that statement in the 1985 job application. I’m concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion," Durbin said.

However, the Supreme Court currently favors Roe on a 6-3 split, assuming Chief Justice John Roberts will side with Justices Clarence Thomas and Antonin Scalia in voting to overturn Roe.

Should Alito be confirmed and replace retiring pro-abortion Justice Sandra Day O’Connor, he would provide only the fourth vote to overturn Roe and a fifth vote would be needed to reverse the much-criticized decision.