Rule Roe v. Wade Inadmissable In Alito’s Confirmation Hearings

By Richard Epstein

Published December 09, 2005, issue of December 09, 2005.
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The fight over Supreme Court nominee Samuel Alito is, as expected, heating up in anticipation of his pending confirmation hearings in January. And equally as expected, regrettably, the abortion issue is again looming so large that it is crowding everything else off stage.

The theatrics over Alito began last week with the public release of a dynamite memo — in both senses of the word — that he prepared in May 1985 for the solicitor general on Thornburgh v. American College of Obstetricians and Gynecologists. The case dealt with a Pennsylvania statute which required that certain factual information be supplied to women seeking abortions, among them the name of the physician, the age of the fetus and the availability of benefits for children raised to term.

In the memo, Alito makes evident his distaste with Roe v. Wade — and in the interests of full disclosure, I’m happy to mention that he cites an article I wrote in the 1973 Supreme Court Review for explaining what’s wrong with the decision. Alito made it equally clear he didn’t think there was a prayer that the Supreme Court would overrule Roe v. Wade, but concluded that the federal government entering the fray on Pennsylvania’s side would be a sensible step in a long-term program to undermine the decision.

And therein lies the difference between Alito’s nomination fight and that of John Roberts, who was confirmed as chief justice in September with little more than a mild skirmish. Roberts was the master at circumspection and thus left behind no paper trail that could serve as a call to arms to his opponents. Alito, by contrast, laid down the gauntlet in his 1985 memo.

Alito’s argument 20 years ago was a strong one, filled with crackling insights, and it looks as if he’s making the bad mistake of bob- bing and weaving to distance himself from that position. He should instead argue that his earlier position got it just right as a matter of principle, and avoid the intensely political question of whether he would vote to overturn a settled precedent.

Personally, I am not sure what I would do if questioned by the Senate about whether to ditch Roe v. Wade. It is a hard question — not because the decision is right, but because it is wrong intellectually.

When I wrote about Roe v. Wade in 1973, the common criticism of the decision was that it represented a radical departure from firmly established law, which had recognized that legislatures, rather than courts, should make key policy decisions. Critics argued that Roe v. Wade was just a dangerous rerun of Lochner v. New York, which they described as an infamous 1905 decision in which a blind conservative court struck down intelligent progressive legislation calling for a maximum 10-hour workday for certain classes of bakery employees. If the legislature knows best when it comes to work hours, defenders of Roe v. Wade had to explain why the legislature also doesn’t know best when it comes to abortions.

Even in 1973, I found this argument to be a nonstarter for one simple reason: The judges in Lochner v. New York got it right. The real conflict a century ago was not between a diligent legislature and an overweening court, but rather between a meddlesome legislature and the liberty of ordinary people to lead their own lives as they wished.

Lochner v. New York didn’t protect Lochner’s employees; it protected rival union shops. The Progressives, as usual, got it wrong, by using health as a fig leaf to advance their own anti-competitive agenda.

Therefore, if judicial restraint is not a trump — for either supporters or opponents of Roe v. Wade — then the decision has to be opposed on its merits.

Nowhere did Lochner v. New York banish state regulations protecting employee health and safety. So why doesn’t an anti-abortion statute protect the health and safety of the fetus? Furthermore, why should the legislature even be allowed to legalize abortion? It certainly should be allowed to make it illegal — protecting unborn children from extinction, after all, is not the same business as protecting labor union members from competition.

Such arguments as these help explain why the anti-abortion groups never have accepted the legitimacy of Roe v. Wade. They also explain why their efforts to cut back on the decision meet with such fierce resistance.

Alito was quite right in 1985 to insist that the entire tradition of informed consent militates in favor of making sure that women, and in particular young women, are sufficiently aware of the consequences of their choice. We require this for a simple appendectomy, so why not for an abortion?

Yet as compelling as these arguments may be, they should not be regarded as relevant — let alone decisive — in the upcoming Senate struggle over Alito.

I have long taken the view that the evaluation of Supreme Court nominees, for all the commotion it causes, is actually quite easy. It took about 10 seconds of reflection to realize that Harriet Miers didn’t cut the mustard for a Supreme Court seat. It takes about the same time to realize that Alito surely does — unless his present waffling starts a second controversy. Whatever one thinks about the abortion issue, no one can deny that his overall record is stellar, and that the 1985 memo is in fact a tightly argued defense of a strong intellectual position.

None of this, of course, will daunt the supporters of Roe v. Wade, who surely will stage a last-ditch campaign to defeat Alito’s nomination. But it should ring warning bells for anyone who thinks the Supreme Court’s long-term welfare depends on more than just reaching the “right” outcome in one particular case. There should be no sacred cows in the nomination process.

If the hard left is successful in beating back Alito — which, I believe, it won’t be — then it will only be able to wail when the hard right mounts a campaign to destroy the next pro-Roe v. Wade nominee. Such a vicious cycle is too horrible to contemplate, for it inevitably would lead to the increased politicization of an overheated Supreme Court.

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