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Supreme shoo-in

"Supreme shoo-in" Continued...

Issue: "New Orleans: Starting over," Sept. 24, 2005

Roe itself is precedent. And in 1992, the high court reaffirmed Roe in Planned Parenthood v. Casey. The court specifically addressed stare decisis, finding that since society has grown to depend on abortion, reversing Roe would disrupt "settled expectations" of its availability.

Sens. Specter, Biden, and Feinstein wanted to know: Would Mr. Roberts consider unsettling that expectation?

Mr. Roberts' answers gave some conservatives pause, as he repeatedly referred to Roe as "settled law" and Casey as "precedent on precedent." But he also noted three factors a court should consider when weighing whether to revisit a ruling, even one with a long history:

  • Whether the bases for the precedents had eroded over time;
  • Whether the precedents had become difficult to apply; and
  • What would be the consequences of disrupting settled expectations.

In the case of Roe, U.S. Justice Foundation attorney Colette Wilson told WORLD, two of three could lead to another high-court review. First, national polling shows that only about half of Americans consider abortion a "settled" issue. Second, precedent-eroding evidence on abortion has emerged since both rulings. "So much more is now known about the dangers to women of abortion," said Ms. Wilson. "There is now abundant evidence to show that it would be a legitimate state interest to limit abortion because of its harmful effects on women."

Mr. Roberts did not hint he would revisit Roe, but his answers on stare decisis left open the possibility. Meanwhile, he testified that he does believe in a constitutional "right to privacy." Many conservative legal scholars view the "implied" right to privacy on which the Roe court hung its decision as a pernicious legal construct.

But Mr. Rushton said Mr. Roberts' "general acceptance of a constitutional right to privacy does not automatically yield assent to Roe." A judge may agree, for example, that Americans have a right to privacy in their own homes, but not agree that they have a right to kill someone or use illegal drugs in their homes. Privacy alone, Mr. Rushton said, does not lead to Roe: "The only way you can accept Roe is by concluding that the unborn child is morally meaningless."

Sens. Specter and Feinstein seemed concerned that Mr. Roberts himself might have moral qualms over abortion, rooted in his religion. Both lawmakers wanted the nominee to publicly dissociate his Catholic beliefs from his legal work; Ms. Feinstein asked Mr. Roberts whether he agreed that there is an "absolute separation of church and state."

"My faith and my religious beliefs do not play a role in judging," Mr. Roberts said. "When it comes to judging, I look to the law books. . . . I don't look to the Bible or any other religious source."

Ms. Wilson, a Christian conservative, felt it was appropriate for Mr. Roberts to draw that distinction-but that it was inappropriate for the committee to apply what was essentially a "faith test" to his nomination: "Those kinds of questions hint that if you're a religious person, the committee may determine you're not qualified to be a justice."

Mr. Rushton noted that Mr. Roberts could have saved himself a lot of trouble by implying or stating outright that he wasn't interested in reconsidering Roe. "But he went to great lengths to avoid doing that, and also to underscore that there are occasions where striking down precedent is appropriate."

If Mr. Rushton's read is correct, pro-lifers may have cause for optimism about a Roberts-led high court. Ms. Mackey, meanwhile, said Beltway conservatives are optimistic about how Mr. Roberts would run the court if confirmed. But, she noted, "the history of Republican nominees has not been good. . . . When all is said and done, there are still no guarantees."

-with reporting by Priya Abraham in Washington, D.C.

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