Conservative media figures falsely equated 1985 Alito letter with legal scholars' criticism of Roe
Research ››› ››› JOSH KALVEN
In an apparent effort to minimize the impact of the recent revelation that Supreme Court nominee Samuel A. Alito Jr. wrote in 1985 that "the Constitution does not protect a right to an abortion," conservative commentators have likened his assertion that there is no constitutional right to abortion to the criticism -- by several prominent liberal jurists and constitutional scholars -- that the landmark 1973 abortion rights case Roe v. Wade was decided on the wrong constitutional basis. But the claim that some scholars' questioning of the court's reasoning in Roe is tantamount to challenging a constitutional right to abortion is simply false.
On November 14, the National Archives released 168 pages of documents relating to Alito's tenure in the Department of Justice during the Reagan administration. Included was Alito's 1985 application for the position of assistant attorney general. In his "Personal Qualifications Statement," he wrote:
Most recently it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.
On the November 14 edition of Fox News' Big Story with John Gibson, Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, said that both Alito and current Justice Ruth Bader Ginsburg (frequently described by conservatives as one of the more liberal members of the high court) had "leveled the same criticism" against Roe v. Wade:
SEKULOW: Justice Ginsburg, by the way, leveled the same criticism regarding the underpinning of Roe v. Wade. She supports the right to abortion but recognized that it doesn't come out of the Constitution the way it was announced in Roe.
On the November 15 broadcast of Christian Broadcasting Network's (CBN) The 700 Club, host Pat Robertson, founder of the Christian Coalition, echoed Sekulow's claim, as did CBN congressional correspondent David Brody:
BRODY: Republicans say, "What's the big fuss?" They contend that Alito joins a long list of constitutional scholars and judges who have written that Roe v. Wade was wrongly decided, and that includes current Supreme Court Justice Ruth Bader Ginsburg.
ROBERTSON: And Ruth Bader Ginsburg, general counsel of the ACLU, said the same thing about Roe vs. Wade. I mean, it was a bad decision. And so Judge Alito, applying for a job, has said the same thing. And you wonder why in the world we have all this fight about this one issue.
In fact, there is a clear difference between Ginsburg's specific criticism of Roe and Alito's broad rejection of a constitutional right to an abortion. In an April 1984 lecture titled "Some Thoughts on Equality and Autonomy in Relation to Roe v. Wade," published in the January 1985 edition of the North Carolina Law Review, Ginsburg clearly agreed with the Supreme Court's decision in Roe to strike down the Texas law in question:
Professor Paul Freund explained where he thought the Court went astray in Roe, and I agree with his statement. The Court properly invalidated the Texas proscription, he indicated, because "[a] law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests."
In contrast with Alito, Ginsburg's subsequent criticism of how she thought "the Court went astray in Roe" rested on the basis for the court's affirmation of a constitutional right to an abortion -- not on whether such a right existed. She argued that the court should have struck down the Texas law at issue as a violation of the Constitution's equal protection clause prohibiting discrimination on the basis of sex, rather than on an unstated constitutional right to privacy. Ginsburg contended that such an approach might have prevented the backlash ultimately caused by the ruling's medical orientation:
If Roe had left off at that point and not adopted what Professor Freund called a "medical approach," physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed in the early 1970s. "[S]ome of the bitter debate on the issue might have been averted," Professor Freund believed; "[t]he animus against the Court might at least have been diverted to the legislative halls." Overall, he thought that the Roe distinctions turning on trimesters and viability of the fetus illustrated a troublesome tendency of the modern Supreme Court under Chief Justices Burger and Warren "to specify by a kind of legislative code the one alternative pattern that will satisfy the Constitution."
I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor [Kenneth L.] Karst's commentary is indicative of the perspective not developed in the High Court's opinion: he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply touched and concerned "women's position in society in relation to men."
In the lecture, Ginsburg also affirmed a woman's right to control her own body:
The conflict, however, is not simply one between a fetus' interests and a woman's interests, narrowly conceived, nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also in the balance is a woman's autonomous charge of her full life's course ... her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.
Moreover, in her 1993 confirmation hearings, Ginsburg clearly stated her position that the Constitution protects a woman's right to an abortion. She first asserted this on July 20, 1993, under questioning by former Sen. Howard M. Metzenbaum (D-OH):
METZENBAUM: After the [1992 Planned Parenthood v.] Casey decision, some have questioned whether the right to choose is still a fundamental constitutional right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right?
GlNSBURG: The Court itself has said after Casey -- I don't want to misrepresent the Supreme Court, so I will read its own words. This is the statement of a majority of the Supreme Court, including the dissenters in Casey: "The right to abortion is one element of a more general right of privacy or of Fourteenth Amendment liberty." That is the court's most recent statement. It includes a citation to Roe v. Wade.
GlNSBURG: The Roe decision is a highly medically oriented decision, not just in the three-trimester division. Roe features, along with the right of the woman, the right of the doctor to freely exercise his profession. The woman appears together with her consulting physician, and that pairing comes up two or three times in the opinion, the woman, together with her consulting physician. The Casey decision, at least the opinion of three of the justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician. The cases essentially pose the question: Who decides; is it the State or the individual? In Roe, the answer comes out: the individual, in consultation with her physician. We see in the physician something of a big brother figure next to the woman. The most recent decision, whatever else might be said about it, acknowledges that the woman decides.
Ginsburg further elaborated the following day, in response to questioning by former Sen. Hank Brown (R-CO):
GlNSBURG: But you asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.
GlNSBURG: It is essential to woman's equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.
Elsewhere in the media, conservative commentators attempted to equate Alito's comments with those made by other legal scholars. In a November 15 column headlined "The Alito Fight Gets Interesting," New York Post columnist John Podhoretz claimed that Alito's 1985 assertion was entirely consistent with liberal scholar Edward Lazarus's criticism of Roe:
So what if Edward Lazarus, one of the nation's foremost liberal Supreme Court journalists and a one-time clerk for the justice who wrote the Roe v. Wade decision, put it this way: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible."
But in quoting an October 2002 column penned by Lazurus, Podhoretz omitted the sentence that followed, in which Lazurus clarified that he believed the right to an abortion "has grounding" in the Constitution -- a position directly at odds with that put forth by Alito:
As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather.
On the November 14 edition of Fox News' Special Report with Brit Hume, Weekly Standard editor Fred Barnes similarly claimed that Alito, in his 1985 letter, had been asserting "the respectable, intellectual position on Roe v. Wade." But as exhibited above, the intellectual argument put forth by legal scholars such as Ginsburg and Lazarus does not take issue with the constitutional right to an abortion, but rather the reasoning that led to the Supreme Court's decision in Roe:
BARNES: Here's what he said again, Brit. You showed it before. He said the constitution does not protect a right to an abortion. That is the respectable, intellectual position on Roe v. Wade. It doesn't -- there are lots of people who think, and I can cite Larry Tribe, the Harvard professor, Alan Dershowitz, the Harvard law professor, as well. Ruth Bader Ginsburg even questioned the reasoning and constitutionality of Roe v. Wade. Not the result. Obviously those people are probably happy with the result. Jeffrey Rosen, a law professor at George Washington University, has said the same thing. Abortion is not mentioned in the Constitution. And remember, Roe v. Wade wanted to talk about emanations from the penumbra.
HUME: No, that was the previous -- that was the Griswold [v. Connecticut] decision that created the right to privacy that was cited in the --
BARNES: OK. Well, it was cited in Roe v. Wade. And abortion simply -- is simply not in the Constitution, and that is -- I mean, Mort [Kondracke, executive editor of Roll Call and a panelist on Special Report], you've heard it from many people too. That is an intellectually respectable position. It doesn't mean you, as a Supreme Court justice 20 years later, you're going to overturn Roe v. Wade, exactly as Mara [Liasson, National Public Radio political correspondent and Special Report panelist] said.
Barnes's litany of legal experts mirrored a document produced by Sen. John Cornyn (R-TX) following the release of the 1985 Alito letter. According to a November 15 Washington Times article, Cornyn distributed to reporters a "a list of quotes criticizing Roe as bad law or poor reasoning from such liberal icons as Supreme Court Justice Ruth Bader Ginsburg, Harvard law professors Alan Dershowitz and Laurence Tribe and New Republic legal writer Jeffrey Rosen." On the November 14 broadcast of NBC's Nightly News, Wendy Long, legal counsel to the Judicial Confirmation Network, also responded by noting that numerous "liberal legal scholars" had also criticized Roe v. Wade":
PETE WILLIAMS (correspondent): But Alito's defenders today said his personal views don't count, that when he puts on his judicial robe, he sets them aside and follows the law, including legal precedent. Besides, they say, even many supporters of abortion rights say Roe was wrongly decided.
LONG: Roe v. Wade has been criticized by even liberal legal scholars, by judges, academics, lawyers across the political spectrum who hold a whole different variety of positionings on the abortion questions.