WASHINGTON (BP)–When Supreme Court nominee Samuel Alito is the subject, nearly everyone wants the answer to one question: What would he do about Roe v. Wade?
Pro-lifers and other social conservatives take hope that Alito, with a 15-year record of judicial restraint on the Third Circuit Court of Appeals, would find no constitutional basis for the 1973 opinion legalizing abortion throughout pregnancy and provide another vote for reversing it. Some of Alito’s colleagues on the Third Circuit, however, say they don’t think he will take that step if he is confirmed to the high court by the Senate.
“If he learned anything from me, he learned the value of stare decisis [the principle that precedent-setting rulings are to be followed],” longtime Third Circuit Judge Leonard Garth told The Washington Post. Alito was a law clerk for Garth in the 1970s before joining him on the appeals court in 1990.
“If what you’re thinking is ‘Would Sam overrule Roe?’ – he would not,” Garth said. “He might have restrictions and limitations, but it is a precedent he’d honor. As a previous mentor and as a present colleague, I don’t think he’ll overrule it.”
The Associated Press interviewed Garth and four other current or former judges on the Third Circuit, and none said he expected Alito to overturn Roe.
“There’s no question he’s going to move the Supreme Court to the right because he is conservative,” former Third Circuit Judge Timothy Lewis told AP. “But in tens of thousands of cases that came before us, he faithfully showed a deference and deep respect for precedent.”
The opinions of Alito’s current and former colleagues are based on close observation of his jurisprudence, in some cases for 15 years, but they remain speculative. In addition, as some court watchers have pointed out, precedent should be more binding for a judge on an appellate court than for a justice on the Supreme Court, where he might be part of a majority to decide the precedent has been wrongly decided.
The high court has overturned its prior rulings at different times in its history. In 2003, the justices did so in a homosexual rights case. In the Lawrence v. Texas decision, they reversed an opinion from only 17 years before and struck down state laws against sodomy. Writing for the majority, Associate Justice Anthony Kennedy said Bowers v. Hardwick, the 1986 ruling, “ought not to remain binding precedent.”
Alito has been a part of rulings in four cases involving abortion while on the Third Circuit, according to the National Right to Life Committee. In two of those, he abided by Supreme Court precedent, according to NRLC, voting to strike down a state ban on partial birth abortions and to reject a wrongful death law that involved the personhood of the unborn child.
In his most publicized vote on abortion, Alito dissented regarding one aspect of a Pennsylvania law providing some restrictions on the procedure. He voted to uphold a provision requiring a wife to notify her husband before having an abortion. That part of the law had five exceptions that permitted a woman to bypass notification.
In another decision, Alito based his vote against rape and incest reporting stipulations for Medicaid-funded abortions on his interpretation of administrative law, NRLC reported.
Even if Alito were to be confirmed and it turned out he opposed Roe, he would appear to be, at most, the fourth vote for such a ruling. Associate Justices Antonin Scalia and Clarence Thomas are on record in favor of rescinding Roe, but only new Chief Justice John Roberts would appear to be a potential anti-Roe vote among the remaining members of the court. The other justices have all indicated their support for maintaining Roe as precedent.
The Senate Judiciary Committee’s hearings on Alito’s nomination are scheduled to begin Jan. 9, with a floor vote expected Jan. 20.
President Bush nominated Alito Oct. 31 to replace retiring Associate Justice Sandra Day O’Connor.
CARTER ON ABORTION – Former President Jimmy Carter sounded like a pro-lifer in comments to reporters Nov. 3.
“I never have felt that any abortion should be committed -– I think each abortion is the result of a series of errors,” he said, according to The Washington Times. “I’ve never been convinced, if you let me inject my Christianity into it, that Jesus Christ would approve abortion.”
The former Southern Baptist said the Democratic Party is making mistakes in its handling of abortion.
“I think our party’s leaders -– some of them -– are overemphasizing the abortion issue,” Carter said, The Times reported.
The party must “let the deeply religious people and the moderates on social issues like abortion feel that the Democratic Party cares about them and understands them,” he said. Democrats, including him, “have some concerns about, say, late-term abortions, where you kill a baby as it’s emerging from its mother’s womb,” Carter said.
The former president’s description appeared to fit a procedure known as partial birth abortion, in which a doctor pierces the skull of a partially delivered infant in the fifth or sixth month of pregnancy with surgical scissors and suctions out the brain.
R. Albert Mohler Jr., president of Southern Baptist Theological Seminary, pointed out in a Nov. 7 online commentary, however, it is not the first time Carter has expressed his dislike for abortion. He made similar comments in a 1996 book, “Living Faith,” and his latest book, “Our Endangered Values: America’s Moral Crisis,” Mohler said.
Mohler cited Carter’s record as Georgia’s governor and as president to show he did not match his professed aversion to abortion with policies that opposed or restricted it. Carter also has not called for the reversal of the Supreme Court ruling that legalized abortion, Mohler said. “His new book certainly offers no hope that he would now call for a reversal of Roe v. Wade,” Mohler wrote.
In recent years, Carter has renounced any identification with the Southern Baptist Convention and instead transferred his allegiance to the Cooperative Baptist Fellowship, a denomination-like organization that was founded in response to Southern Baptists repeatedly electing conservatives to national leadership positions.
SEND IN THE CLONES – Wisconsin Gov. Jim Doyle vetoed a ban on human cloning Nov. 3.
The measure approved by the Wisconsin legislature would have prohibited cloning for both reproductive and research purposes. Doyle contended the bill was an attempt to prevent embryonic stem cell research in the state, but supporters of the bill argued it was tightly drawn to bar cloning for research, not all embryonic research.
Doyle’s veto means Wisconsin has “the welcome mat rolled out” for scientists who desire to perform cloning for research, Wisconsin Right to Life spokeswoman Susan Armacost told the Milwaukee Journal Sentinel. “We’re not talking about stem cells anymore; we’re talking about growing these embryos … not for stem cells but for organs and body parts.”
Neither house of the legislature is expected to be able to garner the two-thirds majority needed to overturn the veto, the Journal Sentinel reported. The Assembly voted 59-38 for the bill, while the Senate passed it 21-12.
Cloning embryos is a means of producing stem cells for experimentation in an effort to find cures for debilitating diseases. Embryonic stem cell research, which requires the destruction of the tiny human beings, has yet to produce safe treatments.
Meanwhile, non-embryonic stem cells have provided therapies for at least 65 ailments, according to Do No Harm, a coalition promoting ethics in research. These include spinal cord injuries, rheumatoid arthritis, lupus, multiple sclerosis and sickle cell anemia. Taking stem cells from non-embryonic sources -– such as bone marrow and umbilical cord blood -– does not harm the donor.