November 1, 2005

Samuel Alito on Abortion

Carroll Andrew Morse

Let’s match the left’s talking points on Supreme Court nominee Samuel Alito to some honest discussion of Alito’s record. We’ll jump right in with the hottest of the hot button issues – the issue of abortion. The talking points tell us that Judge Alito’s opinion in Planned Parenthood v. Casey proves that “Alito would overturn Roe v. Wade”.

Patterico’s Pontifications does an excellent job describing Alito’s Planned Parenthood v. Casey dissent, the reasoning he used, and how that reasoning was consistent with existing precedent…

In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion….

Alito began by noting the contemporaneous state of the law regarding abortion restrictions. He said that his major disagreement with the majority concerned the issue of whether spousal notification was an “undue burden”....

Alito began by noting the contemporaneous state of the law regarding abortion restrictions. "Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing 'severe limitations,' rather than simply inhibiting abortions 'to some degree' or inhibiting 'some women'"....

Judge Alito then noted that the spousal notification provision at issue did not give the husband a veto power. Rather, a married woman simply had to certify (through her own uncorroborated and unnotarized statement) either that she had notified her husband, or that her case fell within any one of several statutory exceptions, including: "(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her"….

He specifically noted: "Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards".

In the words of uberblogger Glenn Reynolds, “read the whole thing”.

Judge Alito has also decided at least one other important abortion case. According to the The Volokh Conspiracy, Judge Alito struck down a 1997 New Jesey ban on partial birth abortion in the case of Planned Parenthhod v. Farmer. From the section of the opinion excerpted a Volokh, Alito followed Supreme Court precedent to find the law unconstitutional 1) because it did not contain an exception for the life of the mother and 2) because it too broadly defined what constituted a partial birth abortion.

In both cases, Alito applied existing Supreme Court precedents. So where is the evidence that he would overturn Roe v. Wade?