A significant moment arrived in the hearing this morning as Sen. Herb Kohl (D-Wis) turned to questioning Judge Sotomayor, albeit briefly, on the abortion issue and the “right to privacy” underlying Roe v. Wade. Sotomayor replied that she does agree that Roe is “settled law” as follows:
KOHL: All right. Judge, the court’s ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?
SOTOMAYOR: The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.
KOHL: Do you agree with Justices Souter, O’Connor, and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?
SOTOMAYOR: As I said, I — Casey reaffirmed the holding in Roe. That is the Supreme Court’s settled interpretation of what the core holding is and its reaffirmance of it. [Transcript via Los Angeles Times.]
This question of Roe as settled law goes to a central point in the testimony we’ll be providing on Thursday morning: Roe is not settled law. The holding in Roe establishing the right to abortion has been substantially modified in subsequent cases – even Casey while reaffirming the central holding of Roe, modified the standard of review applied to abortion regulations. As Roe and its successors continue to be repeatedly reconsidered, it is anything but settled law.