The Fundamental Questions

During the recent Senate Judiciary Committee confirmation hearings questioning, Judge Alito, among other things, said that Roe v. Wade was an important case and since the decision had been affirmed on more than one occasion, its precedence must be respected. Judge Alito’s responses were circular and were not enlightening in the least about how he would rule on a matter concerning abortion.

The issue around Roe is not whether precedence requires that the decision be upheld; rather, whether a fundamental right can be taken away whenever political expediency mandates such a reversal. A fundamental right is one that is so inherent and so embodied in the Constitution that it is beyond the government’s ability to restrict or remove it. No right has been deemed fundamental and then subsequently removed by the Supreme Court.

Roe established a fundamental right in a women’s right to privacy within their own body which includes being allowed to obtain an abortion under specific circumstances. The fact that abortion has been deemed to be fundamental requires that it forever remain part of the rights embodied in the American people.

The Senators asked Judge Alito if time was a factor in determining whether a case must be upheld or could be overturned. One example that was used during the questioning was whether it was proper for Plessy v. Ferguson to be reversed by Brown v. Board of Education nearly fifty years after Plessy was decided. What was not discussed or acknowledged was that there is a significant difference between the "separate but equal" doctrine set forth in Plessy, which is merely a national policy, and the fundamental right created in Roe. Plessy did not grant a right in a class of persons; rather, it prevented a group of people from obtaining a right and was used to suppress blacks. Whereas, Roe established a fundamental right that is inherent in the American people and firmly embedded in the Constitution. No amount of time can pass to remove this fundamental right in the same way that politics altered over the course of fifty years to go from separate but equal to integration. Fundamental rights, once created, must be deemed to be sacrosanct. Such rights cannot be taken away not just because precedence precludes the Court from removing the right, but because the Constitution prohibits such a removal of the right.

Bush v. Gore created a fundamental right. It is the only decision by the United States Supreme Court dealing with the counting of ballots and the requirement that it be done consistently throughout specific areas. This case cannot be overturned the next time a vote counting case comes to the Court just because there is no other case affirming the decision but because it created a fundamental right. Such a right once articulated becomes integral in society and even the Supreme Court should not be able to remove such rights.

Judge Alito should have been asked when the last time the Court removed a fundamental right from the American people and under what circumstances a fundamental right could be taken away. The correct answer is that a fundamental right can never be taken away. If Judge Alito responded with anything other than a fundamental right can never be taken away, then it would have been clear that he disregards the Constitution and only serves his political ends. Since the questions were not properly asked, we will never know what Judge Alito’s opinion is on this important issue.