The Christian Science Monitor - csmonitor.com
from the November 02, 2005 edition -
http://www.csmonitor.com/2005/1102/p01s04-usju.html
On abortion, a nuanced stand
In 3 of 4 cases, Supreme Court nominee Alito voted on the side of
abortion rights.
By Warren Richey | Staff writer of The Christian Science Monitor
WASHINGTON - If there was any doubt about where US Supreme Court nominee
Samuel Alito stands on abortion, his 90-year-old mother quickly and
decisively put that question to rest.
"Of course he's against abortion," Rose Alito told the Associated Press
in a telephone interview from her Hamilton, N.J., home.
Her candid statement may go down in history as the most blunt and honest
admission of a Supreme Court nominee's view on the hot-button issue.
But the true test of appeals court judges isn't which personal views
they hold, but to what extent those personal views may influence how
they rule in a particular case.
On this issue, legal analysts disagree in their assessments of Judge
Alito. Some say he is a conservative ideologue. Others say he is a
smart, careful jurist who leaves personal views behind when he dons his
black robes.
The best evidence of his work as a judge are his published opinions.
They contain a few surprises and some ammunition - for both the left and
the right.
For example, of the four abortion cases in which he participated as an
appeals court judge, he voted on the pro-choice side in all but one. A
1995 Alito vote striking down a Pennsylvania abortion restriction in
particular is raising eyebrows among some legal scholars.
"That [1995 case] strongly seems to indicate that Alito is not a
policy-driven true-believer who's used every possible opportunity to
advance one side's preferred outcome, but instead a judge who has indeed
come down on both sides, in different cases," says David Garrow, a
constitutional historian and expert in reproductive rights cases at the
high court.
Senate investigators, legal scholars, and special interest group lawyers
are poring over Judge Alito's opinions written during 15-years of work
on the Third US Circuit Court of Appeals. They are looking for clues of
what kind of justice Alito might become if confirmed to a life-tenure
post on the nation's highest court.
How he may rule in abortion cases is particularly relevant to the
inquiry since President Bush has named him to replace retiring Justice
Sandra Day O'Connor, a key swing voter and defender of abortion rights.
If Alito holds a different view on that issue, his vote could shift the
balance of power on the court. His four abortion cases include:
• A 1991 challenge to a Pennsylvania law requiring married women to
notify their husbands before seeking an abortion. The court struck down
the restriction. Alito dissented.
• A 1995 challenge to a Pennsylvania law that required women seeking to
use Medicaid funds to abort a pregnancy resulting from rape or incest to
report the incident to law enforcement officials and identify the
offender. Alito provided the decisive vote striking down the abortion
restriction.
• A 1997 challenge to a New Jersey law that prevents parents from suing
for damages on behalf of the wrongful death of a fetus. Alito ruled that
the Constitution does not afford protection to the unborn.
• A 2000 challenge to New Jersey's ban on so-called partial-birth
abortions. Alito struck down the law based on a recent Supreme Court
decision.
Analysts are divided over the meaning of Alito's votes and his various
writings while on the bench.
"I don't think these cases tell us anything about whether he would vote
to overturn Roe v. Wade or not," says James Bopp, general counsel for
National Right to Life. "Nor do they tell us whether he supports
pro-life as a value."
But Mr. Bopp says examining Alito's approach to deciding cases can
reveal what kind of justice he might become. "In these cases he didn't
go beyond the issues that needed to be resolved," he says. "He wasn't
trying to create law. He was just carefully following the existing law."
Bopp says Alito's style of judging is likely to carry over to his work
on the high court. "He's not a rookie. He's been doing this for 15
years," he says. "That usually doesn't change. He will do the same thing
as a justice."
The Alito case receiving the most attention is his dissent in Planned
Parenthood v. Casey. In his 15-page dissent, Alito said that while the
provision might impose some limitation on a woman's ability to obtain an
abortion it was not so severe as to rise to the level of an "undue burden."
The judge based that conclusion on his study of Justice O'Connor's
writings on the issue.
Alito's dissent says that the potential implications on women in abusive
relationships were "a matter of grave concern" to him.
But he added that it was for state lawmakers, not judges, to decide the
wisdom of such measures. "Whether the legislature's approach represents
sound public policy is not a question for us to decide," he wrote. "Our
task here is simply to decide whether [the abortion law] meets
constitutional standards."
The US Supreme Court took up the case the following year and used the
case to broaden the "undue burden" standard, in a way that rejected
Alito's analysis.
But his work was not totally cast aside. Then Chief Justice William
Rehnquist embraced and quoted the Alito dissent in his own dissent,
which was joined by three other members of the court.
Critics say Alito's dissent suggests he is not sensitive enough to the
concerns of women. They see it as an example of his personal views on
abortion influencing his approach to the law.
Supporters say he made an honest effort to identify and apply O'Connor's
"undue burden" standard as it existed at the time.
In the 1995 Medicaid case, Alito cast the deciding vote striking down a
Pennsylvania abortion restriction. Analysts say it was a close legal
question and Alito could have decided the case either way.
"If he has antiabortion philosophical leanings he did not let that warp
his judgment in the case," says Seth Kreimer, professor at the
University of Pennsylvania Law School and co-counsel on the winning side
in the 1995 case. "But there are a lot more degrees of freedom at the
Supreme Court level than at the court of appeals."
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