Senator Ted Kennedy (D-MA) boards an elevator after leaving the U.S. Senate floor after a roll call vote to close the nomination of Justice Samuel Alito to the U.S. Supreme Court, passed 72-25 on January 30, 2006 in Washington, DC.
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Supreme Court Justice Samuel Alito, who wrote the majority opinion this summer overturning the abortion rights case Roe v. Wade, assured the late Senator Ted Kennedy in 2005 that he considered a key legal basis for Roe to be “settled,” a new report reveals.
“I believe in precedent,” conservative Alito told Kennedy, the Liberal Democrat senator from Massachusetts wrote in his diary in November 2005, The New York Times reported.
“I believe there is a right to privacy. I believe it’s settled under the liberty clause of the 14th Amendment and the Fifth Amendment,” Alito said, according to the newspaper quote.
“So I recognize there is a right to privacy. I believe in precedent. I think in the Roe case, that’s about as far as I can go,” Alito told Kennedy , a staunch defender of the right to abortion who died in 2009. .
The comment came as Alito sought Senate confirmation from the court during a visit to Kennedy’s office, John Farrell wrote in The Times. Farrell’s new book, “Ted Kennedy: A Life,” which contains details of the diary entries, is released Tuesday.
The 1973 Supreme Court decision in the Roe case established for the first time that there was a federal constitutional right to abortion.
Roe was based on an earlier High Court decision, Griswold v. Connecticut, which in 1965 found there was a constitutional right to marital privacy, in a case related to married couples barred from using birth control.
For decades, conservatives have attacked Roe as flawed, in part with the argument that the Constitution does not explicitly state that individuals have the right to privacy, let alone abortion.
Associate Justice Samuel Alito poses during a group photo of Supreme Court justices in Washington, April 23, 2021.
Erin Schaff | Swimming pool | Reuters
When meeting Alito, Kennedy was skeptical of the judge who, as a Justice Department attorney during the Reagan administration, wrote a memo in 1985 saying he opposed Roe.
“Judge Alito assured Mr. Kennedy that he should not place much weight on the memorandum,” The Times reported.
“He was looking for a promotion and wrote what he thought his bosses wanted to hear. ‘I was a younger person,’ Judge Alito said. ‘I’ve matured a lot.’ “
Alito also said his views on Roe’s misguided decision were “personal,” according to Kennedy’s diary.
“These are personal,” Alito said, Kennedy wrote in the newspaper. “But I have constitutional responsibilities and those will be the deciding views.”
Despite this assurance, Kennedy voted against confirming Alito to the Supreme Court.
Alito did not return a request submitted to the Supreme Court’s press office seeking comment on the Times article.
In July, Alito wrote the majority decision in Dobbs v. Jackson Women’s Health Organization, which overturned both Roe and another landmark abortion rights case, Planned Parenthood v. Casey, which was decided in July. 1992.
“Roe was completely wrong from the start,” Alito wrote.
“His reasoning was exceptionally weak and the decision had dire consequences. And far from achieving a national settlement of the abortion issue, Roe and Casey inflamed debate and deepened division,” he said. writing, noting that these cases “must be set aside.” .”
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which Roe and Casey’s defenders now primarily rely – the Due Process Clause. of the Fourteenth Amendment,” he wrote.
It was this amendment, the 14th, that Alito allegedly told Kennedy nearly 17 years earlier that established a right to privacy.
But Alito’s opinion in Dobbs said abortion is a “fundamentally different” right from those such as “intimate sex, contraception, and marriage” because “it destroys … ‘fetal life. ‘”.
The Dobbs ruling meant that individual states would again have the power to strictly limit or even ban abortion, or allow it with loose restrictions.
Abortion has been widely banned in at least 13 states since Dobbs’ publication.
In a concurring opinion with Dobbs, Alito’s conservative colleague, Justice Clarence Thomas, wrote that other landmark court decisions that established gay rights and the right to contraception should be reconsidered now that Roe had been forced out.
Thomas said in his view that these decisions “were clearly wrong decisions”.
The cases he mentioned are Griswold v Connecticut; Lawrence v. Texas, which in 2003 established the right to engage in private sexual acts; and the 2015 decision in Obergefell v. Hodges, who said there is a right to same-sex marriage.
Thomas noted that all of these rulings are based on interpretations of the 14th Amendment’s Due Process Clause.
He wrote that the constitutional clause only guarantees that the “process” of depriving a person of life, liberty or property cannot be used “to define the substance of those rights”.