Nominee splits hairs on 'privacy rights'

WASHINGTON -- Grilled by members of the Senate Judiciary Committee about whether he would vote to overturn abortion rights, Judge Samuel A. Alito Jr. has made national headlines this week by testifying that he believes in a constitutional ''right to privacy" and would not overturn a precedent lightly.

But legal specialists said the Supreme Court nominee has said little to reassure supporters of abortion rights -- or to worry opponents -- that his views have changed since 1985, when he wrote that ''the Constitution does not protect a right to an abortion."

For example, Alito has declared that he believes in a right to privacy -- but cited a different kind of privacy than the Supreme Court has cited in recognizing abortion rights. After being asked about privacy for the first time, Alito immediately brought up the Fourth Amendment's protection against having one's home searched, not the 14th Amendment's protection of liberty.

Both amendments create protections sometimes referred to as ''privacy rights," but only the 14th Amendment is relevant to abortion, said Richard Fallon, a Harvard professor of constitutional law. The Fourth Amendment protects only people's personal space, while the 14th protects their liberty to control their personal lives.

Pressed for his views about the kind of privacy right that relates to abortion, Alito repeatedly demurred. For example, he carefully couched his answers about two related privacy cases involving contraception, which paved the way for the abortion decision of Roe v. Wade.

In 1965's Griswold v. Connecticut, the Supreme Court recognized a privacy right for married people to use contraception. In 1972's Eisenstadt v. Baird, the court ruled that single people also have a privacy right to contraception. The next year, basing its decision in part on the two contraception precedents, the court declared that women have a constitutional right to abortion.

When Alito was asked about the contraception cases, he offered no objection to their ''result." But he also avoided endorsing the legal reasoning behind the cases -- that people have a privacy-based right to control their reproductive lives. Alito seemed to choose his words carefully, legal specialists said, when pressed on the issue by Senate Judiciary Committee Chairman Arlen Specter, Republican of Pennsylvania:

Specter: ''Griswold dealt with the right to privacy on contraception for married women. Do you agree with that?"

Alito: ''I agree that Griswold is now, I think, understood by the Supreme Court as based on the liberty clauses of the due process clause of the . . . 14th Amendment."

Specter: ''Well, do you also agree with Eisenstadt, which carried forward Griswold to single people?"

Alito: ''I do agree with the result in Eisenstadt."

Alito also described his 1985 statement that there is no constitutional right to an abortion as an accurate description of his view at the time. But he declined to say whether he now believes that a right to privacy extends to a right to abortion, saying the issue could come before him on the court and he would keep an ''open mind."

Instead, Alito parried questions about his current views by discussing the approach he would use if an abortion case came before him.

He repeatedly stressed he would begin by examining the value of ''stare decisis," the principle that the Supreme Court should generally follow its past decisions and not reverse its precedents lightly.

Alito said it would be important to consider the degree to which people had come to rely on a decision. He also acknowledged that it was significant that the court has repeatedly upheld Roe v. Wade through the years.

But Alito also rejected the idea that some decisions are ''super-precedents" which can never be overturned. And he rejected the idea that it would hurt the reputation of the court to reverse itself on the constitutionality of abortion. He said the court should ignore public opinion and base its decisions on ''what the law requires."

Fallon said that Alito's discussion of precedent was no different from what any judge would offer, and thus has little significance as an indicator of how he would vote on abortion.

No judicial nominee would ever testify before the Senate Judiciary Committee that he would ignore precedent, Fallon said. But in the end, Supreme Court justices are free to overturn precedents if they feel it is required under the law, a point Alito underscored in his testimony.

Barry Friedman, a New York University professor of constitutional law, said that Alito's careful responses about privacy and precedent were a strategy for answering questions without saying anything that could give a senator on either side of the abortion issue a reason to vote against him.

''He's trying to thread the needle in a complicated political situation," Friedman said. ''He is trying to send reassuring signals on Roe, but there is no substance to them. He didn't tell us one thing or another. He might adhere to [abortion rights] or he might not."