A draft opinion published by Politico on Monday and written by Justice Samuel Alito appears to have the support of four other Republican-appointed justices. Things could still change, but the draft eviscerates Roe v. Wade and would overturn decades of law founded on privacy rights.
If Roe is overturned, it might come as a complete shock if all you’ve watched is Supreme Court confirmation hearings for the past generation, when obfuscation by nominees on the issue of abortion was elevated to an art form.
Justice Alito: At his confirmation hearing in 2006, Alito promised to respect precedent and keep an open mind on abortion cases and to respect stare decisis, the legal principle by which precedent takes on increasing importance.
He tried to separate himself from a memo he wrote in 1985 as a lawyer in the Reagan administration, in which he said the Constitution did not protect a right to an abortion. He may now hand down that decision as a Supreme Court justice.
Justice Thomas: Years earlier, in 1991, then-nominee Clarence Thomas told senators he hadn’t given the issue of Roe v. Wade much thought. As a confirmed justice, he pretty quickly turned into a major critic of the decision and has long pushed for it to be overturned.
Justice Gorsuch: He said Roe was the “law of the land,” saying the decision held that “a fetus is not a person for purposes of the 14th Amendment.”
Sen. Dick Durbin asked Gorsuch if he accepted that.
“That’s the law of the land. I accept the law of the land, senator, yes,” Gorsuch said.
Justice Kavanaugh: Like Alito, Kavanaugh had also written a memo as a government lawyer in which he expressed doubt about the precedent of Roe. But at his confirmation hearing, he said he understood it.
Justice Coney Barrett: At her confirmation hearing to take over for Justice Ruth Bader Ginsburg, Justice Amy Coney Barrett said she would set aside her personal opposition to abortion in order to follow the law as a judge.
Barrett would not say if she felt that Roe was correctly decided, according to CNN’s analysis at the time, but she did acknowledge that Roe “held that the Constitution protected a woman’s right to terminate pregnancy.”
Chief Justice Roberts: He may not vote with other Republican-appointed justices to fully overturn Roe v. Wade, but he has appeared open to affirming a Mississippi law that would restrict abortion in that state to 15 weeks of gestation.
At his 2005 confirmation hearing, he said Roe was entitled to respect as a precedent. Unlike Thomas, Alito and Gorsuch, Roberts has not pushed as a justice to reconsider Roe.
Read the full analysis here.
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