<\body> Stories in America: Alito on Abortion

Monday, October 31, 2005

Alito on Abortion

Judge Samuel Alito has been nominated to take the seat of Sandra Day O'Connor, the swing vote on the Supreme Court and the fifth vote to limit government power to restrict abortions.

In the 1991 case, Planned Parenthood v. Casey, Alioto joined a Third Circuit panel in upholding most of a Pennsylvania law imposing numerous restrictions on women seeking abortions. This is from the Washington Post:

The law, among other things, required physicians to advise women of the potential medical dangers of abortion and tell them of the alternatives available. It also imposed a 24-hour waiting period for abortions and barred minors from obtaining abortions without parental consent.

The panel, in that same ruling, struck down a single provision in the law requiring women to notify their husbands before they obtained an abortion. Alito dissented from that part of the decision.

Citing previous opinions of O'Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman's access to the procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement that it be rationally related to some legitimate government purpose.

"Even assuming that the rational relationship test is more demanding in the present context than in most equal protection cases, that test is satisfied here," he wrote.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' 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.

"In addition," he wrote, "the legislature could have reasonably concluded that Section 3209 [the spousal provision] would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. . . . The Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it "unwise" or worse."

The case ultimately reached the Supreme Court, which upheld the appeals court decision, disagreed with Alito and used the case to reaffirm its support for Roe v. Wade , the 1973 decision legalizing abortion.

On the spousal notification provision, O'Connor wrote for the court that it did indeed constitute an obstacle. The "spousal notification requirement is . . . likely to prevent a significant number of women from obtaining an abortion," she wrote.

"It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases," she said.

Plus, it "embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry, " she said.


At 11/14/2005 8:58 AM, Anonymous Anonymous said...

It’s worth bearing in mind that in his Casey opinion, Alito relied on O’Connor precedent...

1. Of the five provisions of Pennsylvania abortion law that Planned Parenthood challenged, the entire panel agreed that, under applicable Supreme Court precedent, four — relating to informed consent, parental consent, reporting requirements, and public disclosure of clinic reports—were constitutional. The pro-abortion groups, of course, maintain that all such provisions are somehow unconstitutional.

2. The narrow divide between the majority and Alito concerned how recent Supreme Court precedent applied to the spousal-notice provision. Subject to several exceptions, that provision required that a physician performing an abortion on a married woman obtain from her a signed statement that she had notified her spouse that she was about to undergo an abortion. Such notice was not required where the woman states that (a) her spouse is not the father of the child; (b) her spouse cannot be located; (c) the pregnancy resulted from spousal sexual assault that had been reported; or (d) that she has reason to believe that furnishing notice would likely result in the infliction of bodily injury on her (by her spouse or by any other person). Notice was also not required in the event of a medical emergency.

3. All members of the panel agreed that the relevant question was whether the spousal-notice provision constituted an “undue burden” under the analysis that had been set forth in O’Connor’s opinions (which all agreed provided the governing legal standard).

4. Alito explained at length why the analysis that O’Connor had offered in her opinions established that the spousal-notice provision did not constitue an “undue burden”.

It is of course true that, in the subsequent Supreme Court appeal, O’Connor ruled that the spousal-notice provision did constitute an undue burden. But Alito’s opinion compellingly demonstrates that the body of O’Connor’s writings that was then available to him supported the opposite conclusion.

So a fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden. No one should present the case as having anything to do with spousal consent rather than notice, no one should misrepresent the scope of the exceptions, and no one should read the case as expressing Alito’s own constitutional or policy views (as opposed to his reading of Supreme Court precedent) on any aspect of abortion.


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