Bench Memos

“Fervent Abortion Opponents”

Radley Balko of Reason offers an interesting and thoughtful discussion of abortion and federalism in his review of Anne Hendershott’s The Politics of Abortion.  That discussion is marred, unfortunately, by Balko’s strange reference to Chief Justice Roberts and Justice Alito as “fervent abortion opponents.” 

 

So far as I am aware, neither Roberts nor Alito has ever made a public comment on abortion policy.  As a court of appeals judge, Alito incurred (unfairly, I think, as I have explained) the wrath of some pro-lifers by ruling against the pro-life position in a case involving Medicaid funding of abortion.  He also voted (in the aftermath of Stenberg v. Carhart) to strike down New Jersey’s partial-birth abortion law.  (Roberts did not have any abortion cases during his short tenure on the D.C. Circuit.)  It is utterly farfetched (as I discussed in an essay on Roberts and abortion that equally applies to Alito) to think that Roberts or Alito would ever vote in favor of a ruling that the Constitution prohibits permissive abortion laws.  The most that can reasonably be hoped—and I will be deeply disappointed if it doesn’t happen when the right opportunity is presented—is that Roberts and Alito will recognize that the Constitution generally doesn’t speak to the matter of abortion.

 

What fervency!  If all the justices showed a similar absence of fervency in support of their (actual or supposed) policy preferences on abortion, Roe v. Wade would be overturned and abortion policy would be restored to the democratic processes.

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