Much has been made of Supreme Court nominee Samuel Alito's refusal to state that Roe v. Wade is "settled law." As a result, many in the pro-choice camp are making as much noise as possible about Alito's confirmation to the Supreme Court being the likely death-knell for reproductive rights in this country. Clearly, they did not listen to the hearings.
Two very important things were said at the confirmation hearings that should give pause to those who belief Alito spells the end for Roe. First, Alito was unequivocal in his affirmation of the right to privacy being found in the Constitution. And second, Alito refused to back away from that position when pressed - hard - by right-wing nut job Sen. Thomas Coburn (R-Ok).
Anti-abortion activitists are vehement in their collective opinion that Roe v. Wade was wrongly decided. Specifically, they note that the Constitution does not contain a right to privacy. And, in the most literal sense, they are correct. There is, in fact, no express right to privacy anywhere in the U.S. Constitution.
However, the Supreme Court has found that the right to privacy is implied within the Fourth, Fifth, and Fourteenth Amendments. The far right repeatedly calls this "judicial activism." Justices like Antonin Scalia, a so-called "strict constructionist," would not find rights in the Constitution that are not expressly written into the document. It was widely believed that Alito shared Scalia's minimalist view of the Constitution and personal rights.
Thus, it was with almost jaw-dropping amazement that I listened to Alito clearly and unequivocally state the the Constitution did, in fact, contain a right to privacy, and that it was found at least in the Fourth, Fifth and Fifteenth Amendments. That was huge - huger than huge - perhaps earth-shattering. And it went virtually unnoticed, or certainly unappreciated.
At least, unnoticed to everyone except Tom Coburn, the right-wing crackpot from Okalahoma. Listening to Coburn proselytize from the dais caused me to grind my teeth - it was absolute agony listening to him whine and bitch and moan about his bizarre belief in the failing of the judiciary. However, he made a point to come at Alito and get him to admit that, although the Supreme Court has found a right to privacy, there is no such right actually in the document. Alito, quite properly, acknowledged the absence of the word "privacy" in the text of the Constitution, but then very forcefully reinforced his earlier statement that the Constitution does contain a right to privacy, even if not expressly stated. Eventually, Coburn gave up.
Finally, I note that Alito was entirely correct to refuse to acknowledge that Roe v. Wade is "settled law." Simply put, it is not. Brown v. Board of Education is settled law. Roe left open room for modification, and the Court has repeatedly said as much. Abortion rights are not yet settled in stone, and the degree to which government may regulate abortion and other reproductive issues remains an open question. Thus, Alito's refusal to commit to Roe as unalterable is legally, factually, and practically correct. It doesn't mean he opposes Roe - it means that Roe is open to collateral attack - and, like it or not, it is.
Alito may not be the best choice to replace outgoing Justice Sandra Day O'Connor. He might not even be a good choice. But it is unfair, and incorrect, to label him as the mortal enemy of reproductive rights, based on his refusal to adhere to a legally untenable position.
