Roberts Refuses to Endorse Roe V. Wade or Personal Privacy, Lays Groundwork for Overturning Landmark Decision

Statement of NOW President Kim Gandy

September 14, 2005

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Yesterday Senator Arlen Specter said of John Roberts' answers during his confirmation hearing for Chief Justice of the United States: "They may be misleading, but they are his answers."

No kidding! Despite reports to the contrary, I heard no indication, much less a commitment, from the nominee that he would protect women's rights and civil rights or the holdings of Roe v. Wade.

As a lawyer, I have been listening very carefully, and what we I've heard is a very clever attorney who has avoided answering many key questions by filibustering [Senator Joe Biden's description] and doing the testimonial equivalent of reading the phone book.

One thing is clear: This nominee is prepared to go to great lengths to appear to say one thing, while leaving himself open to explain the same words differently at a later time.

For example, when asked about Roe v. Wade, Roberts said that Roe is a precedent that is "entitled to respect under principles of stare decisis," but of course that is true of every precedent . . . right up to the moment it is overturned. He used the same phrase repeatedly to describe nearly every case about which he was asked.

Of course, all cases are entitled to respect in our judicial system, but in legal parlance "respect" simply means recognition, and does not have the same implications of high regard as the common usage of the word.

Roberts did discuss the grounds on which he would consider overruling an existing decision, but he refused to respond to questions as to whether those same grounds would apply to Roe.

This is quite different from saying that Roe was correctly decided, as some thought they heard. Roberts was quite willing to say that Griswold v. Connecticut — which allowed married couples to use contraception — was correctly decided, but he was careful to note that it was based on "marital privacy," which is different from the "personal privacy" rights on which Roe and Eisenstadt v. Baird (contraception for single women) were based. Indeed, Roberts flatly refused to agree with or refute a statement made in the Rust v. Sullivan brief, of which he was a co-author, that "Roe was wrongly decided and should be overturned."

Roberts in fact appears to be laying out a roadmap for how he would overturn Roe. As grounds for overturning precedent, he cited both "extensive disagreement" and whether a core holding has become "unworkable," both of which are very common arguments made by the right-wing for overturning Roe. Additionally, by repeatedly turning to Casey v. Planned Parenthood while addressing Roe, Roberts suggested erosion of the precedent as additional grounds, since Casey significantly eroded the Roe protections and reasoning, as has subsequent state and federal legislation.

We urge senators on the Judiciary Committee to press this nominee to actually answer the questions posed to him, and not accept circular logic and non-answers. Women deserve to know whether this judge would protect our most basic rights. If John Roberts cannot support Roe v. Wade, he must be rejected.

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For Immediate Release
Contact: Latoya Veal w. 202-628-8669, ext. 116, c. 301-660-3447

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