November 15, 2005

Alito Does Not Equal Ginsburg

by PG

Today I saw another example of the trouble with having journalists with little legal background report on legal issues. Like those who write on economic matters without being able to draw a supply and demand graph, they have no ability to fill the gaps between soundbites. With Republicans from Sen. John Cornyn to Wendy Long of the Judicial Confirmation Network all reciting (paraphrase), "Ruth Bader Ginsburg publicly opposed Roe and no one bothered her about it," the reporters jot it down and move on to the next quote, and the layman is left wondering, If Alito's views are the same as Ginsburg's, why are the pro-choicers so worried by him?

As law geeks know, however, there's a big difference between Alito's 1985 statement that "legal positions in which [he] personally believe[s] very strongly" include "that the Constitution does not protect a right to an abortion," and Justice Ginsburg's problems with Roe, which focus on its poor grounding in penumbra and bad timing in halting the liberalization of state abortion laws. After several years of arguing that laws and regulations should be struck down because they failed to meet the Constitutional standard for sex equality, Ginsburg probably surprised few people when she publicly attacked Roe for not invoking the gender-specific burden of abortion prohibitions. She said at her own confirmation hearings, "Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men."

(For what Ginsburg was really saying when Alito was declaring there to be no Constitutional right to abortion, check out this 1985 essay. She thanks her then-clerk Michael Klarman for his assistance; I know Klarman, a UVA law prof, best for his claims that Brown v. Board did to the move toward desegregation what Roe is said to have done to abortion liberalization.)

November 15, 2005 12:44 AM | TrackBack
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