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Roberts Testifies Roe v. Wade is “Settled As a Precedent” But Refuses to Say Whether He Would Reverse Abortion Ruling

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Chief Justice nominee John Roberts declined to say on Tuesday if he would reverse the long-standing decision legalizing abortion, but said he believed the Constitution accorded Americans the right to privacy, which is the key underpinning of Roe v. Wade. We speak with the president of the National Organization for Women. [includes rush transcript]

Reproductive rights was one of the central issues during the confirmation hearing of John Roberts to be United States chief justice. Roberts’ testified that Roe v. Wade, the 1973 landmark ruling legalizing abortion, is “settled as a precedent of the court, entitled to respect under principles of stare decisis.

Stare decisis is Latin for “to stand by a decision” and legally translates into the doctrine that says courts are bound by previous decisions, or precedents, particularly when a case has been decided by a higher court.

Roberts answered questions about abortion through the prism of legal precedent. He affirmed a right to privacy–the key underpinning of Roe v. Wade, but declined to answer specifically if he would reverse the ruling.

The hearings also focused on a 1992 Supreme Court ruling in Casey v. Planned Parenthood. In that case, the Supreme Court voted 5-4 to uphold the core holdings of Roe v. Wade and ban states from outlawing most abortions.

The Chair of the Senate Judiciary Committee, Pennsylvania Senator Arlen Specter, opened yesterday’s hearing. Specter is a moderate Republican who is pro-choice. He angered some within his party’s leadership last November when he hinted that he may block judges who would overturn Roe v. Wade–a move that almost cost him the chair of the panel.

  • Sen. Arlen Specter (R–Pennsylvania), Chair of the Senate Judiciary Committee, questioning Chief Justice nominee John Roberts, September 13, 2005.

Sen. Dianne Feinstein, Democrat of California also grilled John Roberts about his views on Roe v. Wade and a number of other women’s issues. At one point she directly asked him if the right to privacy extends to making personal decisions around the beginning and end of life.

  • Sen. Dianne Feinstein (D–California), questioning Chief Justice nominee John Roberts, September 13, 2005.

We go to Washington DC to speak with Kim Gandy, president of the National Organization of Women.

Senator Russ Feingold of Wisconsin asked questions about a range of civil liberty issues. He asked if Roberts thought that the nation would regret any of the laws passed in the wake of September 11th.

  • Sen. Russ Feingold (D–Wisconsin), questioning Chief Justice nominee John Roberts, September 13, 2005.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Arlen Specter, questioning Roberts at the hearing.

SEN. ARLEN SPECTER: Do you think that the cases which have followed Roe fall into the category of a super stare decisis designation?

JOHN ROBERTS: Well, it’s a term that hasn’t found its way into the Supreme Court opinions yet.

SEN. ARLEN SPECTER: Well, there’s an opportunity for that.

JOHN ROBERTS: I think one way to look at it is that the Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the court entitled to respect under principles of stare decisis. And that would be the body of law that any judge confronting an issue in this area would begin with; not simply the decision in Roe v. Wade, but it’s reaffirmation in the Casey decision. That is itself a precedent. It’s a precedent on whether or not to revisit the Roe v. Wade precedent. And, under principles of stare decisis, that would be where any judge considering an issue in this area would begin.

SEN. ARLEN SPECTER: When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you didn’t really know and you cited a number. And I said, “Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled? One of them was Rust v. Sullivan, where you participated in the writing of the brief and, although the case did not squarely raise the overruling of Roe, it involved the issue of whether Planned Parenthood, even if it’s funded with federal money, could counsel on abortion.

And in that brief you again raised the question about Roe being wrongly decided. And then I pointed out to you that there had been some 38 cases where the court had taken up Roe. And I’m a very seldom user of charts but, on this one, I have prepared a chart, because it speaks — a little too heavy to lift — but it speaks louder than just — thank you, Senator — 38 cases where Roe has been taken up. And I don’t want to coin any phrases on super-precedents — we’ll leave that to the Supreme Court — but would you think that Roe might be a super-duper precedent in light of 38 occasions to overrule it?

JOHN ROBERTS: Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question. And that, of course, is in the Casey decision, where it did apply the principles of stare decisis and specifically addressed it. And that, I think, is the decision that any judge in this area would begin with.

AMY GOODMAN: That was Senator Arlen Specter of Pennsylvania questioning Judge Roberts. Senator Dianne Feinstein, Democrat of California, also grilled Roberts about his views on Roe v. Wade and a number of other women’s issues. At one point she directly asked Roberts if the right to privacy extends to making personal decisions around the beginning and end of life.

SEN. DIANNE FEINSTEIN: In response to the chairman’s question this morning about the right to privacy, you answered that you believe that there is an implied right to privacy in the Constitution, that it’s been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning. Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

JOHN ROBERTS: Well, Senator, first of all, I don’t necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated…

SEN. DIANNE FEINSTEIN: Part of liberty, then.

JOHN ROBERTS: Yes. And the exact scope of it, with respect to the beginning of life and the end of life, those are issues that are coming before the court in both respects, and I don’t think I should go further to elaborate upon whether or not it applies in those particular situations.


JOHN ROBERTS: Obviously, it has been articulated by the court in both contexts, in the Cruzan case with respect to the end of life, the Glucksberg case following Cruzan. But I don’t think it’s appropriate for me, given the fact that cases arise on both of those questions, to go further.

SEN. DIANNE FEINSTEIN: Alright. Let’s move right along. This morning, there was a discussion about stare decisis. And you pointed out there were factors in a consideration of stare decisis. And I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.

Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case. In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable. Do you agree with this conclusion?

JOHN ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and —

SEN. DIANNE FEINSTEIN: So you agree that the court said that, obviously.

JOHN ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis, like any other precedent of the court. But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that’s where they draw the line and that’s where I’ve drawn the line.

SEN. DIANNE FEINSTEIN: So workability is clearly one thing. Is another one reliance?

JOHN ROBERTS: Certainly, or, as it’s often expressed in the court’s opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that’s an important consideration.

SEN. DIANNE FEINSTEIN: And in Casey, again, the court stated, and I quote, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives and that this ability to control their reproductive lives was enough of a reliance to sustain Roe.” Correct?

JOHN ROBERTS: That’s what the court concluded — I think you’re reading from the plurality opinion — the joint opinion in the case.

SEN. DIANNE FEINSTEIN: That’s correct. That’s correct. Now, unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient?

JOHN ROBERTS: Well, again, I think that’s asking me whether I think the decision was correct or not on that point. It certainly was the analysis that the joint opinion in the court, entitled to respect as precedent, like any other decision of the court, under principles of stare decisis. And that would certainly be where I would begin. If any of these issues come before the court, if I were to be confirmed, I would begin with the precedent that the court has laid out in this area.

SEN. DIANNE FEINSTEIN: One other question on Casey, and I’d like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing, in a discussion with then-Senator Brown. “The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner. And Casey, which, in other respects, has been greeted in some quarters with great distress, answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband.” Do you agree?

JOHN ROBERTS: That is what Casey held, yes. And that’s, as I said before, a precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.

SEN. DIANNE FEINSTEIN: Thank you. One other reading from Justice Ginsburg’s testimony: “Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; the two strands, equality and autonomy, both figure in the full portrayal.” Do you agree or disagree?

JOHN ROBERTS: Well, I think Justice — then-Judge — Ginsburg felt at greater liberty to discuss that precisely for the reason you noted, that she had given a lecture on the subject. Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don’t think I should express a view on that.

AMY GOODMAN: That is Judge John Roberts being questioned by Democratic California Senator, Dianne Feinstein. As we are joined in the studio right now in Washington, D.C., by Kim Gandy. She is the head of the National Organization for Women. Welcome to Democracy Now!

KIM GANDY: Good morning, Amy.

AMY GOODMAN: It’s good to have you with us. Your response to this discussion?

KIM GANDY: Well, I think that many of the reports of what has come out of this discussion have been quite misleading, and I think that’s because John Roberts’s answers have been misleading, combined with inadequate questions or inadequate follow-up, and let me offer several explanations for that. One is that he repeatedly says and the media repeatedly repeats that he says, 'Well, that is settled law; it's entitled to respect as a precedent, as any other precedent, under the principles of stare decisis.’ That is a meaningless statement. Of course, every precedent, however ridiculous, is entitled to respect, which means to be — it means recognition, in a legal sense, not respect as in the way — that you think it was rightly decided. For instance, you might have respect for an office someone holds, like President of the United States, but not necessarily have a personal respect for the person who holds the office, and that’s true of this kind of precedent.

What he said repeatedly was that he was not willing to state his position beyond what his writings were on Roe v. Wade, but did give, in my opinion, and in the opinion of a number of people, he did give a roadmap for overruling Roe. He basically laid out several ways that a Roberts court, unlike the Rehnquist court, could and I think would, overrule Roe. One of them is addressing privacy. Several senators said, 'Oh, well, he says that he believes there's a right to privacy in the Constitution.’ And indeed, he said there’s a right to privacy in the First, Fourth and Fifth Amendments.

But there are lots of different kinds of rights to privacy, specifically the Griswold case, which was the 1965 case that said married women could not be legally banned from access to birth control. He came right out and said, 'Oh, you know, Griswold, I feel comfortable commenting on Griswold. That's — you know, that’s not going to ever come back before us. That was rightly decided,’ he said, 'under the right of marital privacy,' and he used the term twice. He referred to marital privacy and the right of married women to obtain birth control. But the right of marital privacy is not what Roe was based on, nor is it what Eisenstadt v. Baird was based on, the right of single women to obtain contraception. And he actually said that himself in an exchange with Feinstein about the Griswold case. So, he said, “Absolutely, I agree, there’s a right to marital privacy, and I agree with Griswold.”

What he would not say was that he agreed with the privacy basis in the 14th Amendment, as he called it, the liberty interests of the 14th Amendment. I will not — he would not agree that that was a right to privacy that he recognized. The rights to privacy span the First, Fourth, Fifth, Ninth, Thirteenth, Fourteenth — goes across many amendments to the Constitution. But the ones he recognized were in the First, fourth and Fifth and marital privacy, for instance, unreasonable search and seizure. So the fact that he says that there is a right to privacy, maybe two or three kinds of right to privacy, in the Constitution does not translate, and I wish the media would stop reporting that it translates as his acceptance of the underpinnings of Roe. Indeed, privacy was the primary underpinning of Roe, but it was not the right to privacy that he repeatedly says he supports and endorses.

AMY GOODMAN: Kim Gandy, you’re in Washington, President of the National Organization for Women. You were in the hearing room. What is it like there?

KIM GANDY: Well, it’s — most of the people who were there watching, myself included, did most of our watching on the C-Span screens because it was very difficult to see what was going on in the front of the room with all of the people bobbing up and down in front of you, mostly the press, which was between us and the senators. So, it was difficult to see and hear, but there was a tremendous amount of consternation among the women’s rights leaders, especially when we saw an early story come out of A.P. essentially saying that Roberts had said that, you know, that he respected Roe v. Wade and the right to privacy, which is the underpinning of Roe. Essentially, saying — giving people the idea that he had endorsed Roe or had done so in so many words.

There’s a — I just want to read you something from one of the right wing groups that has been writing on this to their own people. It’s called ConfirmThem.com. You’re probably familiar with it. It’s sort of an analysis from the right wing about the hearings and how they’re going. “Roberts’s answer was brilliant. He made a statement that will satisfy most Americans about privacy while leaving himself enough wiggle room to move the court on that issue in the future.” And then just a few minutes later, they posted, quote, “A top-flight leading conservative pro-life lawyer with a vibrant Supreme Court practice whose name most readers of this forum would know just walked into the room where I am sitting. He was thrilled about Roberts’s answers during the dialogue with Specter and indicated his strong approval and endorsement. He explained that Roberts’s answer was carefully framed to provide a basis for revisiting and overturning Roe in the future.”

And that is exactly on point. In fact, he went through the bases for overturning. He outlined them as erosion, workability and reliance. In fact those are the three standard tests, but he also added a fourth one, “extensive disagreement.” He was talking about Paine v. Tennessee and said that extensive disagreement is also a grounds for reversal of a precedent, and essentially said that was the grounds for the reversal in Paine v. Tennessee of prior precedents.

He then went on to talk about the other standards: Erosion, workability and reliance, particularly workability. Hatch asked him, noting that in Casey, the Casey court abandoned the Roe framework, the Roe trimester framework, and in Casey, also, they dramatically changed the test from a heightened scrutiny of abortion restrictions to merely an undue burden test, which was a very, very reduced level of scrutiny. And so, he — Hatch asked him, 'Well, does that mean since Casey abandoned the Roe framework, does that mean that Roe was not workable?' And Roberts talked a little bit about the workability framework, but he didn’t say one way or the other. In other words, setting up — Feinstein asked him the same question. He didn’t respond to it, but then the erosion standard is the other one, because Casey did in fact erode Roe to a very significant degree, as have state and federal regulations since Casey eroded Roe.

AMY GOODMAN: Kim Gandy, if you could ask Judge Roberts a question, what would it be, if you were one of those senators up there?

KIM GANDY: Well, I guess my questions would have primarily been follow-up questions. I would have asked him how he defines “extensive disagreement.” Certainly, he would say that in this country, although 65% of the public supports Roe, there has clearly been extensive disagreement about the issue, and I would ask him more questions about extensive disagreement and about erosion.

But I think it’s clear from what he has said, I don’t think he has been dishonest in the sense of what 'is' is, but he has been misleading. He has very brilliantly — I agree with the right wing commentator that he has brilliantly given answers that have led some people, including ones on the committee, to believe that he supports the right to privacy and the Roe framework, when in fact he has been laying out, and I hope never to need to say, 'I told you so,' because I hope he won’t be confirmed, but if he is confirmed, I think that people will look back and they will say, 'Oh, yeah. See here, right here in the hearing, he talked about erosion. He talked about workability. He talked about extensive disagreement as being grounds for reversal, and gee, isn't it interesting? These are the exact grounds they used to reverse Roe.’

AMY GOODMAN: Kim Gandy, I want to thank you for being with us, President of the National Organization for Women.


AMY GOODMAN: Senator Russ Feingold of Wisconsin asked questions about a range of civil liberty issues. He asked if Judge Roberts thought the nation would regret any of the laws passed in the wake of September 11.

SEN. RUSS FEINGOLD: Are there any elements of the government’s response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

JOHN ROBERTS: Well, I’m sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back, as opposed to the particular demands of the moment and the perceived demands, I’m sure it’s a different perspective. I’d hesitate to mention any in particular because so many of these issues are coming before, not only the Supreme Court, but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here. So I would hesitate to identify particular areas of concern.

SEN. RUSS FEINGOLD: I understand your caution. I don’t think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

JOHN ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

SEN. RUSS FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

JOHN ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions. I’m very hesitant, though, again to express a view on legality because those issues could come before the court. They are coming before the court and they’re coming not only for the Supreme Court but the court on which I now sit.

SEN. RUSS FEINGOLD: Let’s go to one that’s already come before the court. The Hamdi case is one of the most significant recent decisions restraining executive branch power. In that case, eight members of the court found that the government had gone too far in claiming the right to detain and hold a U.S. citizen incommunicado within the United States without access to a lawyer and without charging him with a crime.

The case actually resulted in four different opinions with four different views on the President’s power to detain a U.S. citizen indefinitely and without trial, ranging from Justices Souter and Ginsburg, who found that the President does not have any authority to detain citizens as enemy combatants, because such detentions had not been congressionally authorized, to Justice Thomas, who would defer entirely to the executive branch.

Which of the four opinions in a case that’s already been decided, in Hamdi, would you say best approximates your views on the executive powers to designate enemy combatants, the plurality opinion, the Souter/Ginsburg opinion, the Scalia/Stevens dissent, or the Thomas dissent?

JOHN ROBERTS: Well, Senator, that does get into the area asking me to comment on which opinions I think are correct that I don’t feel it’s appropriate for me to go.

AMY GOODMAN: That is Judge John Roberts being questioned by Wisconsin Democratic Senator, Russ Feingold, from the hearings yesterday. If confirmed, Judge Roberts would be the youngest Chief Justice of the United States in over 200 years, setting the agenda for the court for decades to come.

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