The Unspoken Word : Roe

Kevin McMahon est chercheur invité Fulbright à la Chaire d’études politiques et économiques américaines (CÉPÉA) du CÉRIUM. Il est professeur associé en science politique au Trinity College de Hartford, au Connecticut. Ses recherches portent sur la présidence américaine et l’origine politique des décisions de la Cour suprême aux États-Unis.

During the confirmation hearings of Samuel Alito for a seat on the United States Supreme Court, the word Roe was spoken many times. Of course, Roe is short for the 1973 High Court decision Roe v. Wade, which provided a woman a constitutional right to terminate an unwanted pregnancy within a certain time frame. In the confirmation hearings, Democratic Senators pushed and pulled Judge Alito in all sorts of ways in hopes of securing some expression of a commitment to upholding the principles of Roe. Unsatisfied with his answers, Massachusetts senators John Kerry and Ted Kennedy led an unsuccessful attempt to filibuster the vote on his confirmation. They did so because they are clearly concerned that now Justice Alito’s record suggests a willingness-even an eagerness-to strike down the historic ruling once he takes his place on the Court. On the other side of the coin, a few months ago, socially conservative Republican senators were concerned that Harriett Miers-President Bush’s previous nominee for the vacancy created by Sandra Day O’Connor’s retirement-was not sufficiently committed to the cause of overturning Roe ; a factor that helped doom her nomination.

The abandonment of the presumably moderate Miers in favor of the apparently conservative Alito may seemingly confirm President George W. Bush’s position on the Roe decision. But during his presidency, the president has never provided a crystal clear explanation of his stance on Roe. In fact, a search of the weekly compilation of presidential documents reveals that the president has never uttered the word “Roe” during his six years in the White House. For him, it is truly a word unspoken.

This avoidance of an unambiguous stance on the ruling is in sharp contrast to the president’s two Republican predecessors. Ronald Reagan, in particular, was hardly shy about noting his distaste for the decision, stressing in 1984 : “We cannot pretend America is preserving her first and highest ideal-the belief that each life in sacred-when we’ve permitted the death of 15 million helpless innocents since the Roe v. Wade decision.” Later that year, in a debate with his Democratic challenger Walter Mondale, Reagan provided even greater clarity of his interpretation of the Constitution on the issue : “I believe that until and unless someone can establish that the unborn child is not a living human being, then that child is already protected by the Constitution, which guarantees life, liberty, and the pursuit of happiness (sic) to all of us.” While not as strident as Reagan, the president’s father, George H.W. Bush, also made his stance on the matter well known, noting in 1989 : “My position on the issue of abortion is clear. I support a constitutional amendment that would reverse the Supreme Court’s decision in Roe v. Wade. I also support a human life amendment with an exception for rape, incest, or where the life of the mother is threatened.” During his attempt to save the Miers nomination, President George W. Bush did publicly refer to himself as a “pro-life president” (a first), but he still refused the opportunity to state a clear stance on the decision itself. Of course, this does not mean that the president doesn’t speak on the issue. He certainly does. However, he prefers to speak in generalities-“a culture of life”-and about more popular restrictions on the procedure, such as banning “partial-birth abortions.”

President Bush has surely chosen this path because he understands that a majority of Americans oppose overturning the Roe decision (66 percent according to a recent poll). In avoiding a specific stance, the president can speak to his pro-life supporters with “culture of life” phrases but not pay the price of a rigid anti-Roe stance with his pro-choice supporters. In this sense, Senator Kerry missed a prime opportunity during the 2004 presidential election to force the president’s hand. Perhaps his attempted filibuster was designed to make up for that misjudgment.

Presidents have often sought to shape the Supreme Court with their appointments. When they do so, however, it might be best if Americans clearly understand their positions on judicial matters of vital concern to the nation. If they don’t make their positions well known, their opponents might be better off to focus on forcing a statement on a controversial Supreme Court opinion from the nominator of justices rather than the nominees themselves. If Chief Justice Roberts and Justice Alito ultimately vote to overturn Roe, we will know President Bush’s role in that decision. But for a democracy that places so many crucial decisions in the hands of justices, wouldn’t it have been better to have known his specific position beforehand ?