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Boston Globe deputy Washington bureau chief Nina Easton falsely equated Supreme Court nominee Samuel A. Alito Jr.'s 1985 position that "the Constitution does not protect a right to an abortion" with a criticism, sometimes articulated by liberal legal scholars, of the landmark 1973 abortion-rights case Roe v. Wade -- that the court's conclusion was correct, but the constitutional basis upon which it was decided was wrong. In fact, there is a clear difference between questioning the court's reasoning in Roe and challenging the constitutional right to an abortion, as Media Matters for America has previously noted. Fox News general assignment reporter Megyn Kendall similarly advanced the misleading claim that "some liberal legal scholars" share Alito's stated view on abortion.
In his 1985 application for the position of assistant attorney general in the Reagan Justice Department, Alito wrote that he was "proud of his contributions in cases in which the government has argued in the Supreme Court ... that the Constitution does not protect the right to an abortion." On the November 16 edition of Fox News' Special Report with Brit Hume, Easton characterized this position as "pretty standard conservative legal theory." But she then elaborated on this legal approach. "It is pretty standard that thinking that Roe v. Wade ... was bad reasoning, bad logic," she said, adding that Alito is now being forced "to run from" that argument in order to obtain the support of senators. That was not Alito's argument. He did not argue that the right to abortion is grounded in a different constitutional principle than that articulated in Roe; he argued that there is no right to abortion.
Following the November 14 release of Alito's 1985 document, numerous conservative media figures similarly downplayed his stated position on abortion by claiming that liberals have made the same argument regarding Roe v. Wade. But the conservative argument that a constitutional right to an abortion does not exist and the oft-stated liberal argument that Roe was badly reasoned do not represent the same "thinking," as Easton stated.
For example, those conservative commentators who have likened these arguments have referred to the criticism of Roe put forth by Supreme Court Justice Ruth Bader Ginsburg and legal expert Edward Lazarus. This tack was reportedly spurred in part by Sen. John Cornyn (R-TX), who on November 14 released a memo listing several quotes from prominent liberal constitutional scholars objecting to the reasoning in Roe. But in contrast with Alito, both Ginsburg and Lazarus have clearly stated in their writings on the subject that they believe the Constitution protects a woman's right to an abortion.
In a 1984 lecture, Ginsburg argued that, while the Supreme Court was right to strike down the Texas law in question, it should have done so on the basis of the Constitution's equal protection clause, rather than on an unstated constitutional right to privacy. Ginsburg later affirmed her belief in the constitutional right to an abortion during her 1993 confirmation hearings.
And while Lazarus asserted in an October 2002 column that "[a]s a matter of constitutional interpretation and judicial method, Roe borders on the indefensible," he went on to write, "I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it."
From the November 16 edition of Fox News' Special Report with Brit Hume:
EASTON: That 1985 statement I find fascinating into this dance that everybody has to do over abortion. It is pretty standard conservative legal theory that there is not a right to abortion in the Constitution. It is pretty standard that thinking that Roe was -- Roe v. Wade, the landmark 1973 ruling, was bad reasoning, bad logic. And the fact that he's --
HUME: There are liberals that think that.
EASTON: And there's liberals that think that. But the fact that he has to run from it and then -- I guess he's providing cover for an [Sen.] Olympia Snowe [R-ME] to talk about precedent and so forth -- it really shows the dance that they're doing.
On the November 17 edition of Special Report, Kendall echoed this misleading argument in a report on the continuing reaction to the 1985 letter:
KENDALL: Among other concerns, [Sen. Ken] Salazar [D-CO] cited Alito's 1985 job application in which Alito wrote that, quote, "racial and ethnic quotas should not be allowed -- and the Constitution does not protect a right to an abortion." Those opinions are shared by many conservatives and even some liberal legal scholars, but have already raised concerns among some top Democrats, including Senator John Kerry [D-MA].