Jessica is liveblogging the Alito hearings and every major news outlet is covering it. We’ve established, not surprisingly, that Alito is being completely non-committal in his responses about the right to privacy and abortion rights. He says he’ll keep an open mind, but that the Supreme Court does have the right to overturn precedent. Thanks for the info, it’s been very enlightening.
But when I wandered on over to Townhall , I found this interesting tidbit:
He gave similar neutral, noncommittal answers to questions involving other cases supporting an implied “right of privacy” in the Constitution. In fact, what was more important than Judge Alito’s answers on Griswold v. Connecticut (the 1965 case that first announced the implied constitutional “right of privacy”) was what he did not say. He said that Griswold “is now understood” to be based on the liberty clause of the Fourteenth Amendment. But that is not how it was originally understood. Griswold was a “right of privacy” case, and the Supreme Court based Roe v. Wade’s“right to abortion” on Griswold. Judge Alito said the constitutional foundation for Griswold has shifted. If that is true, then how does that affect the foundation of Roe v. Wade? Also, Judge Alito said he supported the result of Eisenstadt v. Baird, but he said nothing about its expansive reasoning extending Griswold’s implied “right of privacy.”
Emphasis mine.
(Background: Griswold is the Supreme Court case that gave married couples legal access to contraception, and was the first case to explicitly deal with the right to privacy in terms of one’s bodily choices and reproductive system. Roe’s right to abortion was based on this right to privacy)
I’m not sure exactly what Alito is trying to do here. It’s my understanding that Griswold isn’t understood as a strictly 14th amendment case; it’s still the foundation for the right to privacy, as it was when it was decided. There are certainly strong 14th Amendment elements in it, but to say that its Constitutional foundation has shifted strikes me as a little dishonest — and I’m wondering why he’s doing it. My first reaction is that he’s making a concerted effort to distance Griswold from Roe. The vast majority of Americans would be none to pleased to find out that a potential Supreme Court justice didn’t feel it was their right to access contraception, even though the broader attack on reproductive rights and personal privacy certainly encompasses contraception; abortion, on the other hand, has been at the forefront of this debate for a long time. A justice opposing the decision in Roe, or refusing to give an opinion on it, is more familiar and a lot more palatable — he doesn’t come across as the extremist that an anti-Griswold judge would, despite the fact that those cases deal with the exact same Constitutional issue.
Alito seems to be searching for a way to get rid of Roe without shaking its popular predecessors. That is not a good sign. If anyone has seen any other articles or posts about this, send ’em my way.