On the November 20 broadcast of ABC's This Week, syndicated columnist and conservative pundit George Will joined numerous other conservative media figures in falsely comparing the view articulated in a recently surfaced 1985 memo by Supreme Court nominee Samuel A. Alito Jr. -- that “the Constitution does not protect a right to an abortion” -- with the view expressed by some liberal legal scholars that Roe v. Wade, the Supreme Court's landmark 1973 decision establishing a right to abortion, was decided on the wrong constitutional basis.
Referring to Alito's "Personal Qualifications Statement" on his 1985 application for the position of assistant attorney general, Will stated: “When he [Alito] says that the Constitution does not protect the right of abortion, he's saying what a great many conservatives and a great many liberals believe, which is that Roe v. Wade was sloppily argued and improperly decided, regardless of what you think social policy on abortion ought to be.”
Will's assertion -- which echoes statements made by several other conservatives since the memo was made public -- is part of an apparent effort to minimize the political impact of the memo, the existence of which was reported on November 15. But the argument that some scholars' questioning of the court's reasoning in Roe is tantamount to challenging a constitutional right to abortion is simply false. In his statement, Alito was not simply arguing that Roe v. Wade was decided on the wrong grounds; he was stating his legal opinion that the right to abortion is not protected by the Constitution at all.
From the November 20 broadcast of ABC's This Week:
GEORGE STEPHANOPOULOS (host): You know, I wanted to get onto Judge Alito. That debate also heated up this week. We found a 20-year-old job application where he was appointed -- going for a promotion in the Reagan administration, where he said, “You know, I don't believe the Constitution protects the right to an abortion.” And it created a firestorm of political ads on both sides.
[video clips of ads supporting and opposing Alito's nomination]
STEPHANOPOULOS: Joe Klein [Time magazine columnist], did that memo increase the chances that Judge Alito can be defeated, first of all; or secondly, and maybe these both go together, was it a trap for Democrats?
KLEIN: I don't know whether it was a trap for Democrats, and I don't think it increases the chance that he can be defeated. He's going to be confirmed, and, you know, he is obviously -- you know, the memo showed what he is: He is a conservative. He is a very well respected and highly qualified conservative, and if Democrats don't like judges like this, they should start winning elections.
STEPHANOPOULOS: And, Martha [Raddatz, ABC News chief White House correspondent], I think from what I've heard from the people inside the White House, they think it is a trap for the Democrats. The Democrats are going to be sucked into a big debate over abortion, which is the last thing they need in an election year.
RADDATZ: Exactly that, I believe. I mean, White House officials don't seem terribly concerned about this nomination. They feel it'll go through. I don't think the American people seem terribly engaged in this debate, either, so I don't think there's a lot of sweating in the White House.
WILL: When he says that the Constitution does not protect the right of abortion, he's saying what a great many conservatives and a great many liberals believe, which is that Roe v. Wade was sloppily argued and improperly decided, regardless of what you think social policy on abortion ought to be. But he wrote that 12 years after Roe v. Wade. It's now 33 years almost, come January, and remember [former Chief Justice William H.] Rehnquist. Rehnquist made quite a career opposing the Miranda [v. Arizona] decision [which held that suspects must be informed of their rights prior to police interrogation], saying it was badly argued, bad social policy, terrible thing. Time finally came 30, 40 years later when he had the chance to overrule it; he said, “It is settled law, it is woven into the fabric of police dramas on television and American practice,” and let it go.