Senator Ted Kennedy (D-MA) enters an elevator after leaving the floor of the US Senate following a roll-call vote to nominate Justice Samuel Alito to the US Supreme Court January 72-25, 2006 in Washington had , DC.
Chip Somodevilla | Getty Images
Supreme Court Justice Samuel Alito, who this summer delivered the majority opinion to overturn the Roe v. Wade assured the late Senator Ted Kennedy in 2005 that he was considering an important legal basis for Roe’s “agreement” in a new report revealed.
“I believe in precedent,” conservative Alito told Kennedy, the liberal Massachusetts Democratic senator wrote in his diary in November 2005, the New York Times reported.
“I believe there is a right to privacy. I think it’s part of the 14th Amendment and Fifth Amendment liberties clause,” Alito said, according to the diary quote.
“So I recognize that there is a right to privacy. I believe in precedents. I think in the Roe case, that’s as far as I can go,” Alito told Kennedy, a staunch abortion advocate who died in 2009.
The comment was made while Alito was asking for Senate confirmation from the court during a visit to Kennedy’s office, John Farrell wrote in the Times report. Farrell’s new book, Ted Kennedy: A Life, which details the diary entries, will be released Tuesday.
The 1973 decision in Roe established for the first time that there was a federal constitutional right to abortion.
Roe was based on an earlier High Court decision in Griswold v. Connecticut, which held in 1965 that there was a constitutional right to marital privacy in a case where married couples were barred from using birth control.
For decades, conservatives attacked Roe as flawed, in part arguing that the Constitution does not expressly state that individuals have a right to privacy, let alone an abortion.
Associate Justice Samuel Alito poses during a group photo of Supreme Court justices in Washington, April 23, 2021.
Erin Schaff | swimming pool | Reuters
During his meeting with Alito, Kennedy was skeptical of the judge, who, while a Justice Department attorney during the Reagan administration, had written a memo in 1985 stating that he was opposed to Roe.
“Judge Alito assured Mr. Kennedy that he should not put much stock in the memo,” the Times reported.
“He had been trying to get a promotion and was writing what he thought his bosses wanted to hear. ‘I was a younger person,’ Judge Alito said. ‘I’ve matured a lot.’ “
Alito also said that his views on Roe’s erroneous decision were “personal”, according to Kennedy’s diary.
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“These are personal,” Alito said, Kennedy wrote in the diary. “But I have constitutional responsibilities and those will be the crucial views.”
Despite this assurance, Kennedy voted against confirming Alito in the Supreme Court.
Alito did not return a request to the Supreme Court press office for comment on the Times article.
In July, Alito wrote the majority ruling in the Dobbs v. Jackson Women’s Health Organization case, which overturned both Roe and another landmark abortion rights case, Planned Parenthood v. Casey, decided in 1992.
“Roe was terribly wrong from the start,” Alito wrote.
“His reasoning was exceptionally weak and the decision had damaging consequences. And far from bringing about a national solution to the abortion issue, Roe and Casey have sparked debate and deepened divisions,” he wrote, noting that these cases “need to be overruled.”
“The Constitution does not relate to abortion, and no such right is implicitly protected by any provision of the Constitution, including that on which defenders of Roe and Casey now rely primarily — the due process clause of the Fourteenth Amendment,” he wrote.
It was that change, the 14th reportedly communicated to Alito Kennedy nearly 17 years earlier, that established a right to privacy.
But Alito’s opinion in Dobbs states that abortion is a “fundamentally different” right than such as “intimate sexual relations, contraception and marriage” because “it destroys… ‘fetal life'”.
The Dobbs ruling meant that individual states would again have the power to severely limit or even ban abortion, or allow it with loose restrictions.
Abortion has been widely banned in at least 13 states since Dobbs was issued.
In a statement consistent with Dobbs, Alito’s Conservative colleague, Justice Clarence Thomas, wrote that other landmark court decisions establishing gay rights and the right to contraception should be reconsidered after Roe was thrown out of the case.
In his opinion, Thomas said that these judgments “were demonstrably flawed decisions”.
The cases he mentions are Griswold v. Connecticut; Lawrence v. Texas, which established the right to engage in private sexual activity in 2003; and the 2015 judgment in Obergefell v. Hodges stating that same-sex marriage is a right.
Thomas pointed out that all of these decisions are based on interpretations of the due process clause of the 14th Amendment.
He wrote that the constitutional clause only guarantees “procedures” for depriving a person of life, liberty or property and cannot be used “to define the substance of those rights.”