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Harriet Miers' lack of pro-life judicial rulings — or any rulings at all — made conservatives worry she'd turn out to be another surprise bleeding heart like Justices Souter and Kennedy. Judge Samuel Alito, on the other hand, sits atop a voluminous stack of votes from his time on the Third Circuit Court of Appeals. Four of these cases dealt with reproductive rights, and a quick glance indicates that in three of them, he seemingly swung pro-choice. Was Alito's own mother wrong when she blurted out to the AP, "Of course he's against abortion!" (or when Alito himself said in 1985 that he doesn't think of abortion as a constitutional right?) Probably not. Washington Post writer Charles Lane warned that "it's not the results Alito reached in past cases that matters, it's his legal reasoning." Here, Hooksexup takes a closer look at that reasoning, and finds that if Alito makes it to the highest court in the land, we'll see why his backers are so overjoyed.
1991: Planned Parenthood v. Casey
Alito's first ruling on reproductive rights remains his most scrutinized, and perhaps his most telling. In 1991, Pennsylvania law placed four main requirements on a woman seeking an abortion: that she undergo counseling about the procedure, wait twenty-four hours, sign a consent form and inform her husband of her intentions. It was this last requirement that caused the most concern among pro-choice
advocates.
Casey wound up in front of the Third Circuit, which upheld the first three requirements but struck down the spousal-notification law. The case largely turned on the question of whether spousal notification placed an "undue burden" on the woman. Alito, the sole dissenter in the case, argued that it did not: "The plaintiffs . . . did not prove that this provision would . . . create an 'absolute obstacle' or give a husband 'veto power.' Rather, this provision merely requires a married woman desiring an abortion to certify that she has notified her husband or to claim one of the statutory exceptions." He went on to opine that "some married women are initially inclined to obtain an abortion without their husband's knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion."
Critics of Alito charge this demonstrates a naivete when it comes to women's issues, particularly spousal abuse. Alito's argument was ultimately rejected by the Supreme Court. Ironically, it was Sandra Day O'Connor, the justice Alito has been nominated to replace, who wrote the majority opinion. She stated it was unfair that women should "lose their constitutionally protected liberty when they marry." The 5-4 decision had turned on her swing vote.
Judge Samuel Alito's record on women's issues makes people nervous, and the fears may be legitimate. While serving on the Third Circuit, he ruled that a state employee whose Family and Medical Leave Act (FMLA) rights were violated had no right to sue the state. He also ruled against a mother and daughter who asserted they were illegally strip-searched by police during a drug bust (they were not the targets of the search warrant). A blog called Thoughts From Kansas put it this way: "The situation Alito describes is very much like a system of separate but equal responsibilities of men and women."
How to get involved:
Planned Parenthood's "Take Action!" emergency campaign is fighting the Alito nomination.
American Civil Liberties Union "Action Network" offers multiple ways to defend reproductive rights.
NARAL's entire website is dedicated to the Alito nomination.
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1995: Elizabeth Blackwell Health Center for Women v. Knoll
Alito's vote in Knoll is often mistakenly cited as a strong defense of abortion rights. In fact, it probably points to his constructionist viewpoint. Knoll challenged a Pennsylvania which stated that Medicaid funds could not be used for abortions resulting from rape or incest, unless the woman seeking them reported the incident to police. Alito voted to strike down the law, allowing women on Medicaid more unfettered access. But his vote says little about how he'd rule on Roe. It relied far more on precedent than ideology, since federal policy already allowed doctors to waive such rules anyway. As a lower-court judge, he was beholden to the federal policy in a way that he wouldn't be as a Supreme Court justice, which is why this case has been of little concern to pro-life conservatives.
1997: Alexander v. Whitman
Alito's vote here is another allegedly pro-choice ruling, but reproductive-rights advocates shouldn't get too get excited. Whitman was a wrongful-death suit filed against the state of New Jersey by a woman whose child was stillborn. Alito ruled against Karen Alexander on the grounds that her fetus, which was showing healthy vital signs fourteen minutes prior to its attempted birth after a C-section, was not protected under the law as a "constitutional person." The suit was dismissed, and the notion that fetuses are not babies was upheld. But Alito's opinion was brief, dispassionate and written separately from the majority's. He wrote that he was in "almost complete agreement" with the ruling, and emphasized that the "court's suggestion that there could be 'human beings' who are not 'constitutional persons' is unfortunate." As a Supreme Court justice, he'd have far more leeway to challenge that notion.
2000: Planned Parenthood of Central New Jersey v. Farmer
Farmer was brought before the Third Circuit as a challenge to a New Jersey law that banned later-term abortions. Though Alito voted to strike down the ban, he demonstrated his reluctance by issuing a concurring (and rather milquetoast) opinion, rather than signing on to the majority's. As with Knoll, Alito has been careful to reassure conservatives ever since that his seemingly pro-choice vote in Farmer was thrust upon him by Supreme Court precedent.
But Slate's Richard Schragger puts forth a fascinating theory: the Supreme Court precedent Alito refers to (Stenberg v. Carhart) was being decided simultaneously and had the potential to render the Third Circuit's ruling moot. Alito's colleagues wrote the Third Circuit majority opinion before the higher court ruling came down, but Alito waited — probably, says Schragger, because he wanted to be able to use the Supreme Court ruling as plausible deniability, as if to say, "It's Supreme Court precedent, my hands are tied!" And that's exactly what happened. Alito delayed his ruling, even as the other Third Circuit judges wrote theirs, and then wrote his own ruling later based on Supreme Court precedent after Stenberg v. Carhart was handed down, arguing that the Third Circuit's ruling "is now obsolete." n°
Edited by Will Doig. Researched by Marie Lyn Bernard and Peter Smith.
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