Alito and Abortion Rights: A Pro-Life Perspective

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Abortion is a major issue dominating the Senate debate over Judge Samuel Alito's nomination to join the Supreme Court. Madeleine Brand speaks with Cathy Cleaver Ruse, a senior legal fellow for the Family Research Council — a conservative think tank — about the judge's previous statements on Roe v. Wade, which legalized abortion in the United States. On Thursday, Day to Day spoke with Kate Michelman, former president of NARAL Pro-Choice America, about her opposition to Alito's nomination.

MADELEINE BRAND, host:

Abortion dominates much of the discussion at the Alito confirmation hearings. Kate Michelman, the former president of the abortion rights organization NARAL Pro-Choice America, spoke with us yesterday about why she's opposed to Alito's confirmation. Today we get a different perspective about what Alito's confirmation would mean for US abortion law. And joining us now is Cathy Cleaver Ruse. She's a senior legal fellow for the Family Research Council, and that's a conservative think tank in Washington.

And, Ms. Ruse, welcome to the program.

Ms. CATHY CLEAVER RUSE (Family Research Council): Thank you so much.

BRAND: Now what has your organization said about the Alito nomination? Have you come out in favor?

Ms. RUSE: Well, we have said we're very comfortable with the nomination, that we support fair hearings and an up-or-down vote. We haven't gone beyond that at this point.

BRAND: How do you think he has addressed the issue of abortion in his testimony?

Ms. RUSE: Well, I think he's been very forthright about it. Obviously he can't make promises. But he has explained how he would analyze an abortion case, mentioning that he would first have to address the doctrine of stare decisis and if he got beyond that point, then he would keep an open mind.

BRAND: Right. And several Democratic senators kept pushing him to get him to say more explicitly whether or not he supports Roe vs. Wade. Do you think he should have been more explicit?

Ms. RUSE: Well, they seem to want to get him to say that Roe is settled law and the lawyers who were viewing from home, as I was, or even those who attended had to be sort of smiling, because settled law is not a legal term (unintelligible). It means different things depending on who is saying it. What he said, it is a precedent of the court. Judge Alito, I think, went even farther to say that the fact that it has been re-affirmed strengthens it as a precedent.

BRAND: Well, I think the frustration lay in the fact that Roberts explicitly said, quote, "It's settled as a precedent of the court," and Alito didn't say that or wouldn't say that.

Ms. RUSE: I think Dianne Feinstein wanted to try to get Alito to use that exact phraseology as if that phraseology has some special meaning. And it frankly doesn't.

BRAND: How do you think--looking at his past rulings, at his past statements, at his past legal arguments, how do you think, if he is confirmed, that Judge Alito would rule on abortion law?

Ms. RUSE: Well, the reason that I'm happy with him as a nominee on the issue of abortion is that he is a judge that embraces the idea of judicial self-restraint. Judicial activism is on the other end of the spectrum. Judicial activism is why we have Roe v. Wade on the books in the first place. So before us with Judge Alito is someone who is not a judicial activist and someone who understands the limited role of a judge. If abortion were in the hands of the people, I think we would have a very different result in this country. But abortion has been taken out of the hands of the people in 1973 by activist judges in Roe v. Wade.

BRAND: Well, is that ironic then for someone who is supporting a restrained, not an activist judge, that in this case, if Roe is precedent, then an activist judge would go about trying to alter that precedent whereas a non-activist judge wouldn't?

Ms. RUSE: Well, that's kind of the pickle conservatives find ourselves in. We do have to acknowledge the doctrine of stare decisis. It's there. You can't ask a judge to ignore precedence, but as Judge Alito, and is absolutely correct, the doctrine of stare decisis is not an inexorable command, so it is possible to revisit cases if it's the right case with the right facts and the right circumstances. It already has been revisited and may well be revisited again and that is my hope.

BRAND: You say your group has not given Judge Alito an official endorsement. What is that gives you pause?

Ms. RUSE: I think frankly it's more of a technicality. We think it makes sense to let the hearings play their course and then take an official position. But we've been very vocally supportive of a fair hearing process and an up-or-down vote. So if he's given an up-or-down vote, he will be confirmed.

BRAND: And you'll be pleased with that?

Ms. RUSE: Absolutely.

BRAND: Cathy Cleaver Ruse is the senior legal fellow at the Family Research Council. Thank you very much for joining us.

Ms. RUSE: It's my pleasure.

BRAND: And there's analysis and podcast audio of each of the four days of Judge Alito's testimony at our Web site, npr.org.

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