Much has been said of Supreme Court nominee Samuel A. Alito Jr’s opinion about abortion. In a 1985 statement, he said that the constitution does not protect the right to abortion. He says that he believed that position at that time, but he will keep an open mind on the abortion issue if it comes before the Supreme Court.
But is abortion the most important consideration when determining if Mr. Alito is the right man for the job? I, for one, am more interested in his statement about stare decisis (to stand by what is already decided). He said that stare decisis “…is a very important doctrine…” But, he added, “…I don’t want to leave the impression that stare decisis is an inexorable command, because the Supreme Court has said that it is not.”
No, that’s true. The Supreme Court does not have to stand by previous decisions. But they usually do, especially in an issue where the court has not only given a ruling, but reaffirmed it. For example, abortion rights were strengthened in a 1992 decision, Planned Parenthood v. Casey, in which the Supreme Court affirmed the right of abortion as protected under The Due Process Clause of the 14th amendment. Mr. Alito said, “When a precedent is reaffirmed, that strengthens the precedent.” So, I wonder, does that mean that he will defend abortion rights under the doctrine of stare decisis, or will he attempt to overturn 1973’s Roe v. Wade.
More interesting, of course, is where he will stand on state’s rights. The Supreme Court has recently decided that states are not protected from lawsuits brought by prisoners (in the narrow scope of constitutional issues). The prisoner in question, a paraplegic, sued Georgia for violations of the Americans With Disabilities Act. The court did not clarify whether states could be sued simply for violations of this statute if constitutional issues were not present. This part of constitutional law has been a bone of contention between the states and the federal government almost since the start of the American Republic. In my opinion, where Mr. Alito stands on the issue of state’s rights will better reflect the types of decisions he will make in his term than where he stands on the issue of abortion.