Alito: Roe v. Wade Is 'Important Precedent' and That's It

By Susan Jones | July 7, 2008 | 8:22 PM EDT

( - Judge Samuel Alito on Wednesday refused to echo John Roberts, who called Roe v. Wade "the settled law of the land" during his confirmation hearing last year.

On Wednesday, Alito called Roe v. Wade a "very important precedent," but that's as far as he would go.

"If 'settled' means that it can't be reexamined, then that's one thing," Alito told Sen. Dick Durbin (D-Ill.).

But Alito said that "settled" to him means that Roe v. Wade has "been on the books for a long time; it has been challenged on a number of occasions... and the Supreme Court has re-affirmed the decision...and I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis."

Alito said, "The more often a decision is reaffirmed, the more people tend to rely on it." And secondly, he noted, "stare decisis reflects the view that there is wisdom in embedded in decisions that have been made by prior justices..."

Alito said if the abortion issue were to come before him as a sitting Supreme Court justice, the first step in the analysis for him would be stare decisis.

Durbin, who led off the questioning on Wednesday morning, criticized Alito for not giving him a direct answer on whether there is a constitutional basis for a woman's right to privacy. "You do not see Roe as a natural extension of Griswold," Durbin complained at one point. (The Supreme Court's 1965 Griswold ruling first established a constitutional right to privacy.)

"I'm concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion -- that would make it illegal in this country; that would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives, and the doctors who help them.

"That is very troubling," Durbin said, especially in light of Alito's earlier statements that the Constitution does protect the right to privacy.

A number of pro-life groups note that if the Supreme Court does reverse Roe v. Wade, the issue of abortion would return to state legislatures, where conservatives say it properly belongs. It would be up to the individual states to decide whether abortion is legal or illegal, some say.

But abortion rights supporters say Congress would come under pressure to pass abortion restrictions that would apply nationwide.

Wednesday's confirmation hearing began with three senators getting their first chance to question Judge Alito.

Judiciary Committee Chairman Arlen Specter predicted it would be a long day as senators begin their second round of questions -- 20 minutes for each senator -- when the first round ends.

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