Roberts Dances Around <i>Roe</i>

The National Women's Law Center has a good blog written by lawyers and experts on women's issues, NominationWatch, covering the Roberts' hearings: "In the hearing today, Judge Roberts is refusing to give straightforward answers about his views on whether the Constitution protects a woman’s right to choose and whether he would vote to overturn Roe v. Wade. "

And few minutes later:

Specter: Well, do you see any erosion of precedent as to Roe?
Roberts: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again . . .
Specter: Well, Judge Roberts, I don't know that we're dealing with any specific issue.

Yet again, Specter tried to get Roberts to discuss how his views on precedent might affect his decision of whether to overrule Roe, by noting that Roberts’s mentor, Chief Justice Rehnquist, had agreed to uphold the “Miranda rule,” even though he disagreed with the original Miranda case, because Rehnquist believed that giving Miranda warnings to criminal suspects had become a part of our “national culture.” 

Specter:  Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?  . . . . [T]hat's the analogy I'm looking for in Roe v. Wade . . . [T]he question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?
Roberts: Well, I think that gets to the application of the principles in a particular case.

And then he declined to answer any further on that point.

A little later in the morning, Senator Hatch asked Roberts about the 1992 case Casey v. Planned Parenthood, stating that in that case the Supreme Court reaffirmed the central holding of Roe but substantially changed its framework.  Roberts agreed that the Court in Casey changed the framework set up in Roe (by eliminating a three-trimester analysis and strict scrutiny of abortion restrictions, substituting a weaker “undue burden” standard in its place).  Hatch then asked if that means that Roe’s framework has not been workable, and Roberts replied as follows: 

Roberts:  Well, the question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis [a Latin term that means “to stand by that which is decided”], along with the settled expectations, whether a precedent has been eroded.

These are hardly reassuring answers on whether Roberts would be inclined to overturn Roe v. Wade if he is confirmed to the Supreme Court.  But there’s more. CLICK HERE TO READ ON.

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