Talking Points by Terry M. Neal

Parsing the Abortion Debate

By Terry M. Neal Staff Writer
Tuesday, September 13, 2005; 4:43 PM

"Roberts: Precedent Settles Abortion Ruling," read a headline on an Associated Press story this afternoon.

Such news would seem to alarm abortion opponents and bring delight to supporters of a woman's right to chose. Yet, earlier comments made by John Roberts about the right to privacy and what it means about his views on a woman's right to abortion seem likely to be the main point of contention today. That presumed right is the basis for the Supreme Court's 1973 landmark decision in Roe v. Wade that legalized the right to abortion.

Today, under questioning by Sen. Arlen Specter, a moderate Republican who supports abortion rights, Roberts said: "It's 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 in layman's terms, it refers to the belief that long-standing court rulings set a precedence that should be given extra weight.

Roberts also asserted that the 1992 Supreme Court case Planned Parenthood v. Casey "reaffirmed the central holding in Roe v. Wade." Yet, early analysis in some media outlets indicated Roberts may have tipped his hand as a moderate when it comes to the question of abortion rights.

This might turn out to be one of those rare issues where the right and left roughly agree in their interpretation of what Roberts was saying today. Groups on both sides of the issue insisted Roberts neither endorsed Roe v. Wade nor the more general right to privacy that was the basis of the majority opinion in the case. In fact, interest groups on the left insisted Roberts said just the opposite.

"He essentially did not answer the Roe v. Wade question," said Eleanor Smeal, president of the Feminist Majority, in an interview. "He carefully did not answer it. While he said he respected stare decisis, he pointed out that it could be reversed based on three standards, erosion, workability and expectations.

"And he said, you must first start with Casey, and he said Casey reduced the standard [by adding the "undue burden" standard] and abandoning the trimester system."

Kim Gandy, president of the National Organization for Women, said Roberts very smartly used careful legalistic terms to tip his hand that he considered Casey the real precedent, and one that already set a standard for erosion of Roe, meaning essentially that the stage was already set for further erosion of Roe.

"I'm shocked that there are some people who don't look more deeply at the words," Gandy said in an interview. "I'm a lawyer and these words mean something. They have meaning. Yes, he said there was a right to privacy ... but he was picking what privacies he supported and Roe wasn't one of them.

"He's a very smart lawyer and he's giving legalistic answers that are probably accurate. He doesn't want to lie. But he's giving answers that under some legal analysis do tip his hand, and it's very bad news for women."

Nancy Keenan, president of NARAL Pro-choice America, said Roberts ducked the specific question about whether the right of privacy applied to abortion and said it was of pressing importance that he answer that question, given the court's calendar for the upcoming session.

"In his first round of questioning, John Roberts failed to state whether he believes the right to privacy includes a woman's right to choose as recognized in Roe v. Wade," she said. "He still must answer this vital question directly; the American people expect him to do so as the hearings go forward.

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