Samuel Alito Jr.
wrote a memo in 1985 arguing there is no constitutional right
to abortion, and pro-choice groups are alarmed by that document.
They say it proves he's a right-wing extremist with a "long
history of hostility to reproductive freedom," in the words
of the National Abortion Federation.
Maybe Alito is secretly
plotting to make pregnancy mandatory for all fertile females,
as the NAF sugests. But for those of us who are inclined to be
charitable, there's another possible explanation for why he said
the Constitution doesn't protection abortion rights: because it
doesn't.
It's true the Supreme
Court has ruled it does, but that only proves the Supreme Court
has the final say on the matter. The right to abortion is a wholesale
invention of the court. There is no reference to it anywhere in
the Constitution, and it can't be reasonably extrapolated from
the principles enshrined in our national charter.
In the history
of American jurisprudence, the 1973 Roe v. Wade decision
stands out for its utter detachment from the actual language of
the Constitution. That helps to explain why, 33 years later, it
has yet to gain broad acceptance from the public at large.
Or, for
that matter, from legal scholars -- even those who favor abortion
rights. It's easier to come up with attorneys and law professors
who will defend the Salem witch trials than to find those attesting
that Roe v. Wade was a sound opinion.
Cass Sunstein
of the University of Chicago law school, author of "Radicals
in Robes: Why Extreme Right-Wing Courts Are Wrong for America,"
says Roe "way overreached." Justice Ruth Bader
Ginsburg, who founded the Women's Rights Project of the American
Civil Liberties Union, once admitted that the decision "was
difficult to justify."
Says Edward
Lazarus, a former clerk to Justice Blackmun, who wrote the opinion
in Roe, "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."
For nearly two centuries,
the courts had no inkling that abortion was protected by the framers.
When the Supreme Court finally discovered the oversight, it didn't
get there by applying clear principles or solid precedents, as
it usually does in expanding protections. Instead, it took the
right of privacy, which is implicitly upheld in various provisions
of the Bill of Rights, and stretched it beyond recognition.
The result
was like building a skyscraper on a foundation designed for a
log cabin. Roe was shaky on Day One and has been shaky
ever since. All Alito did in 1985 was point out that the moon
is not, in fact, made of green cheese. To hold that against him
brings to mind journalist Michael Kinsley's famous comment that
in Washington, a gaffe is not when a politician tells a lie, but
when he tells the truth.
The court, of course,
sometimes finds new rights without an unequivocal constitutional
basis -- as when it outlawed segregated public schools and when
it adopted the "one man, one vote" rule requiring legislative
districts to be equal in population. But those decisions soon
gained universal acceptance because they reflected certain fundamental
values of the Constitution. The right to abortion, however, has
still not overcome the powerful doubts it engendered from the
start.
So seeing
Roe as mistaken is not a radical view. The radical view
comes from the other side. When the Constitution says nothing
about an issue, the obvious answer is to leave the matter to legislative
bodies. When the Constitution is silent, the people get the final
say.
Pro-lifers are willing
to accept that outcome -- even though it would mean abortion would
remain widely available. They don't ask the Supreme Court to decree
that every fetus must be protected from the moment of conception.
They don't insist that the issue be pre-empted by the judiciary.
It's abortion-rights supporters who insist that the Constitution
forbids anything except their preference, ever.
At this
point, though, even a grossly flawed decision may be too established
for the justices to abandon. To say Roe was wrong in
1985, a dozen years after it came down, is very different from
saying today that the court should upend a landmark decision that
it has repeatedly reaffirmed.
As a conservative
practitioner of a profession that stresses respect for history,
continuity and predictability, Alito may ultimately be willing
to leave Roe in place. Just don't expect him to pretend
it was right all along.
Copyright
2005 Creators Syndicate
