DeWine to Alito: Roe is not a 'Super-Precedent'

"The chairman has made the same argument at the hearing today. In fact, he brought the chart out again today.

"Now, Judge, just to show you that not all members of this panel are like-minded, I want to tell you that I disagree. To me, Roe is not super-precedent. I believe Roe is precedent, but I don't believe it's super-duper-precedent, nor super-precedent.

"First, although the court has applied Roe in 38 cases, it has not directly taken up the issue of whether to overrule Roe in every one of those cases.

"In fact, out of those 38 cases, I've only found four in which the court directly addressed the status of Roe as binding precedent.

"In Webster, the court asked whether Roe should be reaffirmed but ultimately avoided the issue.

"In three cases, City of Akron, Thornburgh and Casey, the court did reaffirm Roe.

"But the last of these, Casey, did so in a way that hardly left Roe on firm footing. In fact, Casey altered Roe by eliminating the strict scrutiny standard of review and replacing it with a lesser, undue burden tests. The result has been [that] many restrictions on abortion have been upheld.

"Second, just because Roe has been applied and reaffirmed does not make it a special form of precedent. Many other cases have been applied for decades before eventually being overruled.

"For example, Plessy v. Ferguson, the case establishing the principle of separate but equal was upheld for 60 years before it was overruled, and certainly discredited today; Lochner v. New York, a case that greatly limited the power of the states to protect children and workers, was consistently applied for more than 30 years before it was overruled. And Swift v. Tyson, the case establishing the doctrine of federal common law, was a bedrock principle of American law repeatedly applied and upheld for nearly 100 years before it, too, was struck down.

"Thus the mere fact that Roe has been upheld for more than 30 years does not mean that it's entitled to special deference.

"Third, from the start, Roe has been criticized by lawyers, scholars and judges, whether Democrats or Republicans. And to date, it does remain controversial.

"Fourth, much has happened over the last 30 years to undermine the soundness of Roe.

"Senator [Sam] Brownback [R-Ks.] has mentioned how the facts of Roe have changed. We now know that the plaintiff in Roe based her case on false statements and that she wants the case overturned.

"We also know much about the life of babies in utero that we did not know 30 years ago.

"We even know something about the internal deliberations of the justices who decided Roe. In an internal Supreme Court memo, Justice Harry Blackmun, the author of Roe, acknowledged that the trimester framework established in his opinion was, and I quote, "arbitrary."

"And Justice Lewis Powell said that he could not find a right to an abortion within the Constitution and decided instead to rely on his gut.

"Finally, whatever the term super-precedent means, I do not think that it describes Roe. In an article by William Landis and Richard Posner, super-precedent was defined this way: "It is a" -- and I quote -- "precedent that is so effective in defining the requirements of the law that it prevents legal decisions arising in the first place or, if they do arise, it induces them to be settled without litigation," end of quote.

"In other words, super-precedent is precedent that is so firmly entrenched in our legal system that people simply don't question it.

"Marbury v. Madison, the case establishing the power of judicial review, is super-precedent. It's so well-settled that litigants do not challenge it in court. In fact, it is one of the fundamental assumptions upon which our constitutional system is built.

"Roe is hardly Marbury. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent -- is not super- duper-precedent or even super-precedent. It is precedent. Nothing more. "