AG: High Court Not Bound by Roe V. Wade

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AG: High Court Not Bound by Roe V. Wade

By MARK SHERMAN, Associated Press Writer

The legal right to abortion is settled for lower courts, but the Supreme Court "is not obliged to follow" the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court.

In an interview with The Associated Press, Gonzales said a justice does not have to follow a previous ruling "if you believe it's wrong," a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue.

On other subjects in a wide-ranging interview with AP editors and reporters, Gonzales:

• Declined to answer questions about his decision while White House counsel to delay notifying most White House staff about a Justice Department investigation into the leak of a covert CIA officer's identity.

• Defended indefinite detention of terror suspects at Guantanamo Bay, Cuba, as "absolutely the right decision" in the war against terrorism.

• Said the administration opposes federal legislation to shield reporters from having to reveal confidential sources, but also said the government has been "very very careful," issuing only a dozen subpoenas since 1991 seeking reporters' confidential sources.


Roberts was nominated by President Bush to replace Justice Sandra Day O'Connor, who favors abortion rights. Though Roberts has not expressed his personal views on the issue, groups on both sides are attempting to discern his leanings from his statements and writings.

Gonzales said circumstances had changed since Roberts commented on Roe v. Wade during his 2003 confirmation hearing for the seat he now holds on the U.S. Court of Appeals for the District of Columbia Circuit.

"If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Gonzales said.

"If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong," Gonzales said.

While abortion foes fret about Roberts' statement two years ago, abortion rights groups are concerned by a legal brief Roberts helped write for a Supreme Court case while serving as deputy solicitor general in the administration of President George H.W. Bush.

The brief argued that the landmark abortion decision "was wrongly decided and should be overruled." Bush officials have said the brief reflected administration policy and Roberts was one of nine lawyers who signed it.

Gonzales said deciding when to overturn an earlier ruling "is one of the most difficult questions any Supreme Court justice has to answer." Among the factors to consider is how old is the precedent, he said.

Gonzales said he has a "preliminary judgment" about whether the Constitution affords the right to an abortion, but he declined to reveal it.

Gonzales has been thought to be a candidate for the Supreme Court because of his close relationship with Bush and his Hispanic heritage. Conservative groups mounted a strong campaign against his selection, based mainly on questions about his abortion stance.

Asked about that opposition, Gonzales sighed before responding, "This is the big decision. People have waited for over 11 years. There was a lot of pent-up anticipation and a lot vested in this decision."

He would not say whether Bush interviewed him for the job.

The attorney general also would not discuss the 12-hour delay between telling White House Chief of Staff Andrew Card that prosecutors were investigating who revealed CIA agent Valerie Plame's name to the media and informing the rest of the White House staff.

The White House did not respond to questions Sunday about whether Card passed that information to Bush aide Karl Rove or anyone else, giving them advance notice to prepare for the investigation. Time magazine reporter Matthew Cooper recently said he first learned of Plame's position during a discussion with Rove in July 2003.

Attorney General John Ashcroft eventually recused himself from the case under pressure from Democrats who complained about his ties to Rove. Gonzales, who succeeded Ashcroft in February, also stepped aside from the investigation because of his involvement as White House counsel.

In other areas Tuesday, Gonzales said:

• The Guantanamo facility keeps terrorist suspects from resuming their fight and affords them humane treatment. "I take issue with folks who say people are being mistreated in Guantanamo," he said, adding, "I don't know what I say to Mom and Dad if their son or daughter is killed by someone we once held at Guantanamo."

• He would reconsider Ashcroft's guidance that has restricted public access to government information since shortly after the Sept. 11 attacks.

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