Alito

The senate hearings on the appointment of Federal Appeals Court judge Samuel Alito to a position on the US Supreme Court seem almost guaranteed to disappoint, if not infuriate those who are strongly committed to either the Pro-Life or to the Pro-Choice sides of the abortion debate.

The reason is that Alito himself appears to wear three hats when it comes to this issue.  As a Catholic, he is, of course, personally opposed to abortion.  And as a lawyer who worked for the Reagan administration, he brain-stormed methods to curb some of the more far-fetched interpretations of the Roe v. Wade decision, which although it allowed abortion during the first six months of pregnancy, actually gave the states the right to restrict abortion during the last three months. But as a judicial conservative, he seems highly unlikely to try to push the court towards a overturning or reversal of the Roe v. Wade decision itself.

If all this seems confusing, we must remember three things.

The first is that private or personal codes of morality can not always be made into public standards of legality, or probably should not be made such, particularly in a country where people hold different systems of morality and religious belief. For example, at present, Americans are concerned that despite our efforts to bring democracy to Iraq , it will turn into an "Islamic republic" wheresharia (morality as dictated by the Koran) will become the law of the land.  Or, to take another example, as much as we may regret divorces when they happen, would Christians in this country want the Gospel condemnation of divorce made into a legal impossibility of all or any divorce?

The second thing that should be remembered is that although Catholics, like most Christians, have always considered the practice of abortion seriously sinful, the opinion as to exactly why it is wrong has varied quite a bit, depending on different understandings of biology and what philosophical presuppositions one held. Oddly enough, the Roe v. Wade decision was made at least partly on the basis of what had been the prevailing point of view for a very long period of Christian (and Catholic) history -- namely, that abortion, as wrong as it may be at any stage of pregnancy, amounts to "murder" only from the point of viability outside the womb, or what was for all practical purposes (until some of the more hi-tech medical procedures have been developed), the last three months.

Third, we should remember that judicial conservatism (which we generally expect in any judge and which Alito is said to strongly favor) means that one does not go about overturning or reversing established laws from the bench, but instead works within the laws that have been previously established, whether one agrees with them or not.  Alito, as both a Catholic and a political conservative, may very much regret the more sweeping interpretations to which Roe v. Wade has been invoked (like former President Clinton's veto of federal restrictions on late-term, or so-called "partial birth" abortions), but is more likely to stand up for the individual states' right to ban such abortions not contrary to but according to the provisions enacted by Roe v. Wade.

In sum, although the Alito hearings will no doubt prove contentious, they could prove to be the occasion of learning and perhaps even some reconciliation between those who are actually willing to pay close attention to what is being said or even not said.

R W Kropf   1/3/06                         

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