November 2, 2005

Samuel Alito and Sandra Day O’Connor -- Hard-Right Co-Conspirators

Carroll Andrew Morse

An unsigned editorial in today’s Projo is highly critical of Samuel Alito. The editorial labels judge Alito as a “right-winger”, yet cites only a single case in support of its name-calling…

One particularly troubling example of Judge Alito's approach is his dissent in Planned Parenthood v. Casey. In that case he backed a Pennsylvania law that required a woman seeking an abortion to consult her husband.
The editorial then goes on to pine for a justice in the mold of Sandra Day O’Connor…
President Bush would have served the country better by nominating someone more moderate -- someone like Justice Sandra Day O'Connor, whom Judge Alito would succeed, if confirmed.
Taken together, the two statements are incoherent. Of course, sounding incoherent is the risk you take when you uncritically pass along partisan talking points.

In applying the law in Planned Parenthood v. Casey, Judge Alito had to decide whether a spousal notification provision placed an “undue burden” on the right to abortion. In forming his opinion, Judge Alito followed the precedents established by Justice O’Connor. He combined her definitions of “undue burden” with the fact that she had found parental notification laws to be constitutional to determine that spousal notification was also constitutional.

If Justice O’Connor is the model of a moderate justice, then Alito took the moderate position in Planned Parenthood v. Casey. The Projo editorial board seems more interested in making common cause with abortion rights radicals who believe that no restriction on abortion can ever be justified than it does in supporting moderate jurists who apply the law.

Here is an extended excerpt (h/t Confirm Them) of Judge Alito's opinion in Planned Parenthood v. Casey.

Justice O’Connor has explained the meaning of the term “undue burden” in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting), she wrote that “an ‘undue burden’ has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision.” She noted that laws held unconstitutional in prior cases involved statutes that “criminalized all abortions except those necessary to save the life of the mother,” inhibited ” ‘the vast majority of abortions after the first 12 weeks,’ ” or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted)….

Justice O’Connor reiterated the same analysis in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169 (1986). She wrote (id. at 828, 106 S.Ct. at 2214 (O’Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting)):
An undue burden would generally be found “in situations involving absolute obstacles or severe limitations on the abortion decision,” not wherever a state regulation “may ‘inhibit’ abortions to some degree.”

She also criticized the majority for taking an approach under which “the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it.” Id. 476 U.S. at 829, 106 S.Ct. at 2214 (emphasis added).
Justice O’Connor’s application of the undue burden test in several cases further illustrates the meaning of this test. In Hodgson, 110 S.Ct. at 2950-51, Justice O’Connor found that no undue burden was imposed by a law requiring notice to both parents or judicial authorization before a minor could obtain an abortion.….

Justice O’Connor has also suggested on more than one occasion that no undue burden was created by the statute upheld in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), which required parental notice prior to any abortion on an unemancipated minor. Instead, she has stated that this statute merely inhibited abortions to “some degree.” Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O’Connor, J., dissenting); Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting)….

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.” Thornburgh, 476 U.S. at 828, 829, 106 S.Ct. at 2213, 2214 (O’Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting). Furthermore, Justice O’Connor’s opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs…